United States v. Jose Valdivia-Flores
876 F.3d 1201
| 9th Cir. | 2017Background
- Jose Valdivia‑Flores, a Mexican national, pled guilty in Washington (1997) to possession with intent to deliver heroin under Wash. Rev. Code § 69.50.401 and served a short prison term.
- In 2009 DHS issued a Notice of Intent asserting that the 1997 conviction was an "aggravated felony," began administrative removal proceedings, and sent Valdivia‑Flores a form which he signed waiving judicial review; he was removed in April 2009.
- Valdivia‑Flores later unlawfully reentered the U.S. multiple times and was prosecuted for illegal reentry (8 U.S.C. § 1326) after a 2014 attempted entry where he used a false identity.
- He collaterally challenged the 2009 removal under 8 U.S.C. § 1326(d), arguing (1) his administrative remedies were exhausted or denied, (2) he was deprived of judicial review by an invalid waiver, and (3) the removal was fundamentally unfair because the underlying Washington conviction is not categorically an aggravated felony.
- The Ninth Circuit majority held Valdivia‑Flores’s waiver was not a knowing, intelligent waiver (due process violation), Washington’s statute is overbroad compared to the federal generic drug‑trafficking definition (categorical approach), and therefore he satisfied all three § 1326(d) prongs; the district court’s judgment was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Valdivia‑Flores validly waived judicial review in 2009 | Waiver was not "considered and intelligent" because the Notice of Intent failed to explain he could challenge the legal classification (aggravated felony) and he lacked counsel or IJ hearing | Waiver was valid because he signed the Notice, did not appeal, and later reentered voluntarily | Waiver was invalid; due process denied; first two § 1326(d) prongs satisfied |
| Whether Washington § 69.50.401 conviction is categorically an aggravated felony (drug trafficking) | Washington’s accomplice/aiding‑and‑abetting mens rea (knowledge) is broader than federal specific‑intent requirement, so statute is overbroad | The state statute matches federal law functionally; conviction documents show he was convicted as a principal | The statute is overbroad under the categorical approach; conviction does not categorically match federal drug‑trafficking offense |
| Whether the modified categorical approach may be used (i.e., examine conviction documents) | District court used documents to show he was convicted as a principal, so the conviction fits the federal definition | Same: rely on documents to confirm the conviction type | Statute is indivisible between principal and accomplice (jury unanimity not required), so modified categorical approach is inapplicable; district court erred |
| Whether Valdivia‑Flores met the "fundamentally unfair" prong of § 1326(d) | Because waiver was invalid and the underlying conviction is not an aggravated felony, it is plausible he would have obtained relief on judicial review | Government contends conviction is an aggravated felony and removal would stand | Court held he plausibly would have prevailed; § 1326(d) prongs satisfied and collateral attack succeeds |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior convictions)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (treatment of aiding and abetting in categorical analysis)
- Descamps v. United States, 570 U.S. 254 (limits on modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (discussion of categorical approach consequences)
- United States v. Ramos, 623 F.3d 672 (waiver and collateral‑attack context)
- United States v. Gomez, 757 F.3d 885 (government burden to prove valid waiver)
- United States v. Grisel, 488 F.3d 844 (realistic probability and overbreadth analysis)