United States v. Aguilera-Rios
2014 U.S. App. LEXIS 18889
| 9th Cir. | 2014Background
- Jorge Aguilera-Rios, a Mexican national and lawful permanent resident, was convicted in California in 2002 under Cal. Penal Code § 12021(c)(1) for unlawful firearms possession.
- In 2005 an IJ found him removable based on that firearms conviction and he was deported to Mexico.
- After returning to the U.S., Aguilera was prosecuted under 8 U.S.C. § 1326 for illegal reentry and convicted; he challenged the underlying 2005 removal on collateral review.
- Aguilera argued the 2005 removal was invalid because (a) the IJ failed to meaningfully advise him about voluntary departure and (b) his California conviction did not categorically match the federal firearms ground of removal because California prosecutes antique-firearm cases while the federal definition excludes antiques.
- The Ninth Circuit considered Aguilera’s Moncrieffe-based argument on appeal, concluded Moncrieffe controls, and held the California statute is not a categorical match to the federal firearms ground; it reversed his § 1326 conviction.
Issues
| Issue | Plaintiff's Argument (Aguilera) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Aguilera waived his Moncrieffe-based categorical- mismatch argument by not raising it in district court | Excuse waiver because Moncrieffe issued after district proceedings and Aguilera promptly raised it on appeal | Argues Rule 12(b)(3)(B) waiver should apply because argument not raised before trial | Court excused waiver for good cause and entertained the argument |
| Whether post-removal precedent (Moncrieffe) may be applied retroactively on collateral review to invalidate a removal | Moncrieffe is a statutory-interpretation decision explaining what the law always meant and is retroactive when it shows the defendant was not removable | Argues Vidal-Mendoza bars retroactive application; removal should be judged by law at time of hearing | Court applied Moncrieffe retroactively for removability questions, distinguishing Vidal-Mendoza and Gomez |
| Whether Cal. Penal Code § 12021(c)(1) is a categorical match to the federal firearms ground of removal (8 U.S.C. § 1227(a)(2)(C)) given the federal antique-firearm exclusion | §12021 lacks an antique-firearm exception and California actually prosecutes antique-firearm cases, so the conviction does not necessarily establish a federal firearm offense | Government relied on pre-Moncrieffe Ninth Circuit precedent (Gil) and argued the antique exception was an affirmative defense not considered in categorical analysis | Court held §12021(c)(1) is not a categorical match because Moncrieffe requires considering definitional exclusions like the antique-firearm exception |
| Whether Aguilera was fundamentally unfairly removed such that §1326 collateral attack succeeds | Because he was removed without a valid statutory predicate (no categorical match) he suffered prejudice and removal was fundamentally unfair | Government asserted Aguilera cannot show fundamental unfairness absent a due-process precedent violation | Court held removal was fundamentally unfair because Aguilera was removed when he should not have been and reversed the §1326 conviction |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (clarifies categorical approach; definitional exclusions like antique‑firearm exception must be considered)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (establishes "realistic probability" test for state prosecutions covering conduct outside the generic federal definition)
- Gil v. Holder, 651 F.3d 1000 (9th Cir. 2011) (prior Ninth Circuit holding that affirmative defenses generally are not considered in categorical analysis)
- Albino‑Loe v. Holder, 747 F.3d 1206 (9th Cir. 2014) (recognizes Moncrieffe's impact on treating definitional provisions in categorical analysis)
- Camacho‑Lopez v. Gonzales, 450 F.3d 928 (9th Cir. 2006) (applied Leocal retroactively to invalidate prior removal where defendant was not removable)
- Vidal‑Mendoza v. Lynch, 705 F.3d 1012 (9th Cir. 2013) (held IJ’s duty to advise judged under law at time of removal; distinguished here)
- Lopez‑Velasquez v. Lynch, 629 F.3d 894 (9th Cir. 2010) (en banc) (on standards for collateral attack and expectations of IJ foresight)
- United States v. Melendez‑Castro, 671 F.3d 950 (9th Cir. 2012) (recognizes §1326 collateral attack right challenging a removal order)
- United States v. Gomez, 757 F.3d 885 (9th Cir. 2014) (distinguishes discretionary‑relief errors from removability questions on collateral review)