United States v. Jose Ochoa
2017 U.S. App. LEXIS 11815
| 9th Cir. | 2017Background
- Jose Ochoa, a Mexican national, pleaded guilty in 1998 to conspiracy under 18 U.S.C. § 371 to export defense articles in violation of 22 U.S.C. § 2778; he served a federal sentence.
- While incarcerated, he was served a Notice to Appear alleging removability as an aggravated felon and for a firearms offense based on exporting firearms and ammunition; an IJ found him removable in 1999 and he waived appeal.
- Ochoa was removed to Mexico in 2001; agents located him in the U.S. in 2014 and he was indicted for illegal reentry under 8 U.S.C. § 1326.
- At trial, Ochoa moved to dismiss, arguing the 1998 § 371/§ 2778 conviction was not categorically an INA aggravated felony or firearms offense; the district court denied the motion and convicted him.
- The Ninth Circuit reviewed de novo, held § 2778 was overbroad and indivisible for the immigration predicates, concluded Ochoa was not removable as charged, and reversed with instructions to dismiss the § 1326 indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of collateral attack under 8 U.S.C. § 1326(d) | Gov't: §1326(d) limits collateral attacks unless defendant satisfies all three prongs; exhaustion/judicial-review prongs apply | Ochoa: excused from proving exhaustion and judicial-review prongs because his underlying conviction was never a removable offense | Court: If conviction was not a removable offense, exhaustion/judicial-review prongs are satisfied; proceeded to merits and found defendant excused |
| Categorical match — aggravated felony/firearms offense | Gov't: conviction (conspiracy to export defense articles) matched INA aggravated-felony and firearms categories because Munitions List includes firearms/ammunition | Ochoa: §2778 criminalizes many non-firearm items on the Munitions List; thus overbroad as a categorical predicate | Held: §2778 is overbroad — it criminalizes many items beyond generic firearm/illicit-trafficking definitions — so not a categorical match |
| Divisibility / Modified categorical approach | Gov't: if divisible (alternative elements), courts may use modified categorical approach to identify charged item(s) | Ochoa: §2778 is indivisible because the Munitions List items are means, not separate elements; indictment charging multiple items suggests means | Held: §2778 is indivisible; therefore modified categorical approach does not apply and conviction cannot be narrowed to a firearm-only predicate |
| Effect of IJ warning and appellate waiver (exhaustion) | Gov't: Ochoa waived appellate review and had procedural opportunities; waiver should bar collateral attack | Ochoa: even with waiver, a non-removable predicate renders removal fundamentally unfair and excused exhaustion | Held: Because the conviction was not a removable offense, the removal was fundamentally unfair; the court did not rely on waiver to sustain removal and reversed conviction |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior convictions)
- Descamps v. United States, 133 S. Ct. 2276 (limitations on modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (elements vs. means; divisibility analysis)
- United States v. Aguilera-Rios, 769 F.3d 626 (Ninth Circuit on collateral attack availability under §1326(d))
- United States v. Camacho-Lopez, 450 F.3d 928 (retroactive application of intervening law to removability; relief on collateral attack)
- United States v. Pallares-Galan, 359 F.3d 1088 (modified categorical analysis used to conclude waiver was not "considered and intelligent")
- United States v. Arriaga-Pinon, 852 F.3d 1195 (describing three-step categorical analysis)
- United States v. Chi Mak, 683 F.3d 1126 (elements of §2778 export offense described)
- United States v. Mendoza-Lopez, 481 U.S. 828 (due-process basis for collateral challenge to removal orders)