932 F.3d 1198
9th Cir.2019Background
- Josue Martinez-Hernandez and Oscar Carcamo-Soto (Mexican citizens) were convicted in California of robbery under Cal. Penal Code § 211, served prison terms, and were removed as aggravated felons.
- Each later reentered the U.S. and was charged with illegal reentry under 8 U.S.C. § 1326; they collateral‑attacked their prior removal orders under 8 U.S.C. § 1326(d).
- The Notices of intent to issue final removal orders characterized their § 211 convictions as aggravated felonies under 8 U.S.C. § 1101(a)(43)(F) (a “crime of violence”).
- Subsequent Ninth Circuit and California decisions (and concessions by the government) made clear § 211 robbery is not categorically a § 1101(a)(43)(F) crime of violence.
- District courts denied the § 1326(d) motions because § 211 nonetheless qualifies categorically as a “theft offense” aggravated felony under § 1101(a)(43)(G); the defendants appealed.
- The Ninth Circuit affirmed: although § 211 is not a § 1101(a)(43)(F) crime of violence, it is categorically a § 1101(a)(43)(G) generic theft offense, so the removals were lawful and § 1326 convictions stand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CPC § 211 robbery is a § 1101(a)(43)(F) "crime of violence" | N/A (government conceded it is not under current law) | § 211 is not a crime of violence after California law allowing accidental force | Conceded and accepted: § 211 is not a § 1101(a)(43)(F) crime of violence |
| Whether defendants can collaterally attack removal because Notice cited § 1101(a)(43)(F) rather than § 1101(a)(43)(G) | Defendants: Notice’s reliance on § 1101(a)(43)(F) invalidates removal; government cannot justify removal on a ground not stated in the Notice | Government: even if § 1101(a)(43)(F) is inapplicable, the convictions independently qualify under § 1101(a)(43)(G) | Held for government: in § 1326(d) collateral‑attack context, court may consider whether convictions qualify under another statutory ground when that ground would have supported removal and defendants suffered no due‑process prejudice |
| Whether CPC § 211 is categorically a "theft offense" under § 1101(a)(43)(G) | N/A (defendants contested classification) | § 211 is a species of aggravated larceny and requires intent to steal; thus it matches generic theft elements | Held for government: § 211 categorically matches generic theft (taking property without consent with intent to deprive) |
| Whether possible theories of liability (e.g., accessory after the fact) prevent a categorical finding | Defendants: § 211 can reach accessories (getaway driver), so it overbroadly covers non‑theft culpability | Government: § 211 lacks language reaching accessories after the fact; accessory liability is prosecuted under Cal. Penal Code § 32 | Held for government: § 211 does not criminalize accessories after the fact and California law requires separate charging under § 32, so Vidal does not apply |
Key Cases Cited
- Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) (earlier Ninth Circuit treated Cal. § 211 robbery as violent)
- United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (held § 211 is not categorically an ACCA violent felony after People v. Anderson)
- United States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014) (statute prohibiting taking from person in presence is a categorical theft offense)
- United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (statute reaching accessories after the fact can be broader than generic theft)
- United States v. Ochoa-Oregel, 904 F.3d 682 (9th Cir. 2018) (due‑process defects in earlier removal may infect later removals; government cannot retroactively rely on unstated grounds when prejudice exists)
- United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) (statutory interpretation is retroactive for collateral attack review)
- United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017) (illustrative Ninth Circuit decision holding a state conviction was not categorically an aggravated felony)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court held residual clause of 18 U.S.C. § 16(b) unconstitutionally vague; residual clause not at issue here)