United States v. Edwin Flores
901 F.3d 1150
9th Cir.2018Background
- Edwin Flores, a Mexican national brought to the U.S. as a child, was convicted in 2001 of three counts under Cal. Penal Code § 496(a) (receipt of stolen property) and sentenced to two years; INS treated those convictions as aggravated felonies and removed him in 2002.
- Flores repeatedly reentered the U.S.; after an expedited removal in 2009 (for presenting a counterfeit I-551) and subsequent returns, he was indicted in 2015 under 8 U.S.C. § 1326 for illegal reentry.
- Flores moved to dismiss under 8 U.S.C. § 1326(d), arguing (1) his § 496(a) convictions are not aggravated felonies because California theft statutes allow consensual takings, (2) the 2009 expedited removal violated due process, and (3) the fingerprint expert should have been excluded under Daubert.
- The district court denied the motion, admitted fingerprint identification testimony in a bench trial, convicted Flores of § 1326, and imposed a 40‑month sentence.
- On appeal, the Ninth Circuit evaluated: (a) whether Cal. § 496(a) is categorically a federal aggravated felony (“receipt of stolen property”) under 8 U.S.C. § 1101(a)(43)(G); (b) whether any due process defect in the 2009 expedited removal prejudiced Flores; and (c) whether admitting the fingerprint expert was an abuse of discretion in a bench trial.
Issues
| Issue | Plaintiff's Argument (Flores) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Cal. § 496(a) is an aggravated felony (receipt of stolen property) under 8 U.S.C. § 1101(a)(43)(G) | §496(a) is overbroad because California theft (§484) criminalizes takings with consent (e.g., by false pretenses), so receipt of stolen property cannot be categorically a subset of generic theft | BIA reasonably interpreted "including receipt of stolen property" to be independent of the generic federal ‘‘theft offense’’; Cal. §496(a) elements match BIA’s generic receipt offense | Held: §496(a) is a categorical match to the generic federal receipt offense; conviction is an aggravated felony and valid predicate for deportation. |
| Whether the word "including" requires "receipt" to be limited to takings that qualify as generic theft (i.e., without consent) | "Including" should be read as subset/limiting term, making receipt require theft as generically defined | "Including" is ambiguous; BIA's longstanding reasonable construction treats receipt of stolen property as independent and broader; Chevron deference applies | Held: "Including" is ambiguous; defer to BIA under Chevron; receipt need not be limited to generic theft. |
| Whether Flores suffered prejudice from alleged due process defects in 2009 expedited removal (i.e., plausible grounds to withdraw application) | Due process violations (no explanation, inability to read/sign) and family ties made withdrawal of admission plausible, so prejudice is shown | Flores’s use of counterfeit documents, repeated illegal entries, and extensive criminal history made withdrawal implausible; agency would likely deny relief | Held: Even assuming a due process violation, Flores failed to show plausible grounds for withdrawal; no prejudice shown. |
| Whether admission of fingerprint expert testimony violated Daubert / Rule 702 | Expert lacked contemporary validation, peer review, continuing education, and verification; testimony should be excluded | Expert had extensive experience and courts have long accepted fingerprint ID; in a bench trial gatekeeping is less strict and the court can weigh reliability | Held: No abuse of discretion. In bench trial context, district court properly admitted the evidence, made Daubert findings, and could evaluate reliability itself. |
Key Cases Cited
- Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir.) (discussing categorical match between Cal. §496 and generic theft)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir.) (California theft statute criminalizes takings by false pretenses; overbreadth concern)
- Torres v. Lynch, 136 S. Ct. 1619 (2016) (discussing §1101(a)(43)(G) and inclusion of receiving stolen property)
- United States v. Turley, 352 U.S. 407 (1957) (broad interpretation of the word "stolen" to include embezzlement and false pretenses)
- Raya-Vaca v. Holder, 771 F.3d 1195 (9th Cir.) (standards for prejudice from expedited removal; withdrawal plausibility analysis)
- Barajas-Alvarado v. Holder, 655 F.3d 1077 (9th Cir.) (withdrawal ordinarily not available where fraud/counterfeit documents used)
- Castillo-Basa v. Holder, 483 F.3d 890 (9th Cir.) (elements government must prove to establish prior deportation)
- Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir.) (Daubert gatekeeping and required findings; bench-trial context guidance)