912 F.3d 1310
10th Cir.2019Background
- Oscar Almanza-Vigil, a Mexican national who entered the U.S. as a child, pleaded guilty in Colorado (2007) to one count of “selling or distributing” methamphetamine under Colo. Rev. Stat. § 18-18-405(1)(a) and was sentenced to four years; other counts were dismissed.
- In April 2009, upon state parole, ICE placed Almanza-Vigil in expedited removal, deeming his conviction an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B); he signed a Certificate of Service and was removed to Mexico without an immigration-judge hearing.
- In 2015 he was arrested after reentering the U.S.; prosecutors charged him with illegal reentry under 8 U.S.C. § 1326(a)/(b), relying on the 2009 removal order.
- Almanza-Vigil moved to dismiss the § 1326 indictment by collaterally attacking the 2009 removal order, arguing the Colorado conviction was not an aggravated felony and that the misclassification rendered the removal order fundamentally unfair under 8 U.S.C. § 1326(d).
- The district court denied dismissal; after a bench trial it convicted and sentenced him. On appeal, the Tenth Circuit held the Colorado offense is not categorically an aggravated felony but affirmed the conviction because Almanza-Vigil failed to show prejudice (no reasonable likelihood he would have avoided removal absent the misclassification).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colo. Rev. Stat. § 18-18-405(1)(a) conviction (“selling or distributing”) is an INA aggravated felony (8 U.S.C. § 1101(a)(43)(B)) | Almanza-Vigil: statute too broad to be an aggravated felony because it criminalizes acts (e.g., offers/possession) not matching federal "illicit trafficking." | Government: statute divisible; use modified categorical approach to identify distribution offense that matches federal trafficking. | Court: conviction is not a categorical match; statute is indivisible in relevant respect and includes fraudulent offers; thus not an aggravated felony. |
| Whether the modified categorical approach can narrow Almanza-Vigil’s conviction to distribution | Almanza-Vigil: charging document shows “sold or distributed” as alternatives—means, not elements; modified approach cannot narrow to distribution. | Government: plea/judgment show distribution; modified approach should apply to identify distribution. | Court: modified categorical approach does not salvage classification; record reiterates alternatives so crime remains indivisible; conviction is “selling or distributing.” |
| Whether misclassification of the conviction prejudiced Almanza-Vigil so removal was fundamentally unfair under 8 U.S.C. § 1326(d)(3) | Almanza-Vigil: he was eligible for discretionary relief (voluntary departure or cancellation) absent aggravated-felony label and had strong equities (long residence, family ties). | Government: even if eligible, discretionary relief (esp. cancellation) barred by controlled-substance grounds; voluntary departure was discretionary and unlikely given serious recent felony and lack of evidence of rehabilitation. | Court: No reasonable likelihood of avoiding removal; cancellation barred by controlled-substance disqualification; voluntary departure speculative—fundamental-unfairness not shown. |
| Whether failure to show prejudice forecloses collateral attack under § 1326(d) | Almanza-Vigil: absence of prejudice argument fails. | Government: § 1326(d) requires all three prongs; failure to prove prejudice ends inquiry. | Court: Affirmed; because Almanza-Vigil failed § 1326(d)(3), collateral attack barred and § 1326 prosecution stands. |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (discussing consequences of "aggravated felony" removals and constitutional concerns)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach for matching state offenses to federal immigration offenses)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (elements v. means and limits of the modified categorical approach)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (scope of "illicit trafficking" under the INA tied to CSA felonies)
- Shepard v. United States, 544 U.S. 13 (2005) (documents permissible under modified categorical approach)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (categorical-comparison framework for immigration offenses)
- United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004) (reasonable-likelihood standard for § 1326(d)(3) prejudice)
- United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017) (Colorado § 18-18-405 indivisible; state statute broader than federal/guidelines definitions)
- United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017) (state statutes criminalizing offers to sell are overbroad compared to federal definitions)