United States v. Jose Alvarado-Pineda
2014 U.S. App. LEXIS 24080
| 9th Cir. | 2014Background
- Alvarado-Pineda, a Mexican national, first entered the U.S. circa 2003 and was convicted in Washington for second-degree robbery in 2004.
- DHS issued a removal notice in 2005 asserting an aggravated-felony conviction based on the robbery and removed him to Mexico.
- Over six years, Alvarado-Pineda reentered the U.S. three times and faced multiple illegal-entry/removal proceedings.
- He pled guilty to illegal-entry and illegal-reentry offenses, stipulating removal orders and waiving rights to appeal.
- In 2011, after a third reentry, he was indicted for illegal reentry; the district court denied his motion to dismiss the indictment based on due-process defects.
- The issue on appeal is whether his 2004 Washington robbery conviction constitutes an aggravated felony under federal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washington second-degree robbery is an aggravated felony under 8 U.S.C. 1101(a)(43)(G). | Government contends the offense fits the generic theft category, or alternatively could be a crime of violence. | Alvarado-Pineda argues the statute does not categorically map to the generic theft or violence definitions. | Conviction qualifies as an aggravated felony under 1101(a)(43)(G) as a theft offense. |
Key Cases Cited
- United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011) (reentry requires predicate removal order; collateral attack rights under 1326(d))
- United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (collateral attack rights for removal orders; fundamentals of 1326(d))
- Mendoza-Lopez v. INS, 481 U.S. 828 (1987) (prescribes collateral-attack standards on removal orders)
- United States v. Garcia-Martinez, 228 F.3d 956 (9th Cir. 2000) (aggravated-felony prejudice rules for detainees)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach for generic-offense classification)
- Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. 2008) (definition of generic theft and its relation to robbery)
- Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005) (guides statutory-interpretation of theft/robbery elements)
- State v. Sublett, 292 P.3d 715 (Wash. 2012) (Washington elements of second-degree robbery including specific intent to steal)
- State v. Satterlee, 361 P.2d 168 (Wash. 1961) (theft as lesser-included offense of robbery)
- State v. Herrera, 977 P.2d 12 (Wash. Ct. App. 1999) (broader discussion of force or fear in robbery)