United States v. Armando Cabrera-Perez
2014 U.S. App. LEXIS 8760
| 9th Cir. | 2014Background
- In 2004 Armando Cabrera-Perez pleaded guilty in Arizona to two counts of aggravated assault (A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2)) based on allegations he fired a handgun near two neighbors, placing them in fear of imminent physical injury; he received probation.
- In February 2005 an Immigration Judge ordered Cabrera-Perez removed to Mexico after finding his aggravated-assault convictions were crimes involving moral turpitude; Cabrera-Perez was deported that day.
- In May 2011 Cabrera-Perez attempted reentry using another person’s documents; he was indicted for illegal reentry (8 U.S.C. § 1326) and aggravated identity theft (18 U.S.C. § 1028A).
- Cabrera-Perez moved to dismiss the superseding indictment, arguing the underlying 2005 removal order was invalid because the IJ failed to advise him adequately of his potential eligibility for voluntary departure.
- The district court denied dismissal, concluding Cabrera-Perez suffered no prejudice because his Arizona aggravated-assault convictions qualified as "crimes of violence" under 18 U.S.C. § 16 and I.N.A. § 101(a)(43)(F), rendering him ineligible for voluntary departure.
- On appeal the Ninth Circuit applied the modified categorical approach to the record of conviction (charging document, plea agreement, plea colloquy) and affirmed: the convictions rested on the § 13-1203(A)(2) alternative (intentional placing in apprehension) incorporated by § 13-1204(A)(2), and thus were crimes of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cabrera-Perez’s Arizona aggravated-assault conviction is a "crime of violence" under 18 U.S.C. § 16 / I.N.A. § 101(a)(43)(F) | Cabrera-Perez: charging and plea documents do not establish conviction under the intentional subpart (A)(2); record is inadequate to show the specific alternative element | Government: record (direct complaint, plea agreement, plea colloquy) tracks § 13-1203(A)(2) and § 13-1204(A)(2); those provisions require intentional or weapon-based conduct that qualifies as a crime of violence | Held: Applying the modified categorical approach, the record shows conviction under § 13-1203(A)(2) (intentional placement in apprehension) incorporated by § 13-1204(A)(2); these provisions constitute crimes of violence under § 16(a)/(b) and I.N.A. § 101(a)(43)(F) |
| Whether Cabrera-Perez was prejudiced by the IJ’s alleged failure to advise him of voluntary-departure eligibility (collateral attack under 8 U.S.C. § 1326(d)) | Cabrera-Perez: lack of advice prejudiced him because he might have sought voluntary departure if eligible | Government: no prejudice because his conviction made him ineligible for voluntary departure as a matter of law | Held: No prejudice; because the convictions were crimes of violence, Cabrera-Perez was ineligible for voluntary departure, so the alleged advisory omission did not render the removal order fundamentally unfair |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (establishes modified categorical approach for divisible statutes)
- United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000) (held A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2) satisfy § 16 crime-of-violence definitions)
- Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (analyzed § 13-1203(A)(1) and mens rea limits for § 16(a) crimes)
- United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (discusses limits on using charging documents absent plea-colloquy or plea terms)
- United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (applies modified categorical approach where charging documents narrow the offense)