Ruben Ceron v. Eric H. Holder Jr.

any way pretextu- somebody going challenged to never as who “would not have pretext sup- This lack evidence of is not al. of person work for me” where that entry summary judgment of in favor ports her su- willing to instructions from follow Villiarimo, 281 employer. that was the expressly stated of pervisors. He the (affirming not at 1063 district court’s the reason he would let Westendorf summary judgment in favor of entry charac- of company. to Whether return his “pre- the employer employee failure to the termination or a terized as a resignation, employer] [the no evidence that after a sented employment reinstate proffered rea- honestly unrefuted believe its crystal clear and did the record is sons”). stat- proffered that Ramirez Westendorfs authority as the supervisory

ed defiance of Conclusion action. employment basis for the adverse in the viewing to bolster Even after the majority attempts The further evidence Westendorf, to she light that “her most favorable suggesting case Westendorfs to raise a issue fact that and related inferences failed material of prima case facie ad- pretext.” proffered of the reasons Ramirez for the might support finding well employment pretextual. 424. add- action Majority Opinion, p. (emphasis verse were ed). reason, I would in its majority Dep’t cites Texas For affirm Burdine, entirety judgment the court’s Cmty. 450 U.S. district Affairs I respectfully dis- employer. 255 n. 101 S.Ct. 67 L.Ed.2d favor (1981) However, majority refer- from that portion the sent the support. judgment that a Wes- opinion opinion reversing enced note does not state on retaliation claim. prima case and related inferences tendorfs facie pretext.” “might support finding well

Rather, states the evidence the note case inferences prima from “and facie may therefrom be consid- properly drawn deciding ered trier of fact” in proffered explana- employer’s whether the goes tion is a The note on pretext. “Indeed, cases explain: may there be some CERON, Ruben aka Ruben Adolfo evidence, where the initial com- plaintiffs Ceron-Casco, Petitioner, bined with cross-examination of effective defendant, will suffice to discredit (emphasis explanation.” defendant’s HOLDER, Jr., Attorney H. Eric added). General, Respondent. majority why It is understandable No. 08-70836. entirety failed to include the of the refer- Appeals, Court of United States enced the facts of this case note because Ninth Circuit. considerably from scenario diverge described in the note. The cross-exami- 8, 2012. Argued and Submitted Nov. his simply nation of Ramirez reinforced April Filed testimony that he declined to reinstate in her persisted she Westendorf because

refusal follow directions from her su- pervisors. proffered explanation Acosta, Jr.,

Mario Goldsby Martinez & Associates, PLC, CA, Angeles, Los for Pe- titioner. O’Connell,

Joseph A. Immigra- Office of Litigation, Division, tion Civil United Justice, Department States Washington, D.C., Respondent. for BRIGHT,* Before: MYRON H. GRABER, SUSAN P. and SANDRA S. IKUTA, Judges. Circuit GRABER; Opinion by Judge Dissent Judge IKUTA.

OPINION

GRABER, Judge: Circuit pleaded Petitioner Ruben Adolfo Cerón nolo contendere California state court to deadly weapon, assault with a in violation 245(a)(1). of California Penal Code section The state court sentenced Petitioner to 364 days in county jail, to be served but it suspended imposed pro- that sentence and Immigration bation instead. The Board of (“BIA”) Appeals held that Petitioner was pursuant removable 8 U.S.C. 1227(a)(2)(A)® § having committed for which year’s of at imprison- sentence least one ment imposed. could been Review- novo, ing questions of law de Blanco v. Cir.2008), Mukasey, 518 F.3d deny petition for review. First, California Penal Code section 245(a)(1) categorically a “crime * Circuit, Myron Bright, Honorable H. Appeals Eighth sitting by Senior Cir- des- Judge cuit ignation. for the United States Court of we have cited Carr’s cases, In later U.S.C. turpitude.” (i)(I). 1227(a)(2)(A) long ago that passing. Complicating We held mat statement under Cali

assault with Carr ters, although plainly concerned as a crime section 245 is fornia Penal Code firearm, some of our later sault turpitude. Gonzales v. involving moral have mischaracterized Carr’s hold cases Cir.1953) (9th Barber, 398, F.2d 400 207 deadly ing concerning assault with a earlier, substantially but (construing Holder, Castrijon-Garcia v. weapon. See on 245), of section similar version aff'd (9th Cir.2013) (“‘In 1205, F.3d 1212 704 822, 637, 74 S.Ct. grounds, other 347 U.S. determined, deed, example, we have (1954). That ac 1009 decision 98 L.Ed. deadly weapon, ... assault with a long-standing interpre BIA corded with a [Carr, 951,] F.3d at not involve do[es] 86 G-R-, 2 I. & N. Dec. 733 In re tation. ” (citation omitted) turpitude.’ (quot moral Sanudo, (B.I.A.1946); see also In re 23 I. Gonzales, ing Navarro-Lopez v. 503 F.3d (B.I.A.2006) (reaffirm 968, & N. Dec. 971 (9th Cir.2007) (en banc) (Re 1063, 1074-75 battery deadly and with a ing “assault inhardt, J., majority))); concurring for the long been a crime weapon has deemed Holder, Robles-Urrea v. 702, 678 F.3d 708 by involving turpitude both this (9th Cir.2012) (same); Nicanor-Romero v. Bar (citing the Federal courts” Board and (9th 992, Mukasey, 523 F.3d 1018 n. 6 400)). ber, 207 F.2d Cir.2008) (“[A]ssault deadly weapon awith INS, (9th 949, In Carr v. 86 F.3d 951 involving mor [a does not constitute Cir.1996), we wrote that California Penal Carr, (citing al at 950- turpitude].” 86 F.3d 245(a)(2), with a fire- Code section assault Gonzales, v. 51)); Marmolejo-Campos 503 arm, turpitude.” “is not a crime of moral (9th Cir.2007) 922, (Nelson, D.W., F.3d day government’s We leave for another (“[A]ssault J., dissenting) deadly a with argument that Carr’s statement is dictum. all weapon other been [and crimes] Enomoto, 744, Barapind v. F.3d (cit found not to involve moral turpitude.” (9th Cir.2005) (en banc) (per 750-51 cu- Carr with the ing parenthetical “assault riam) dictum). assuming (defining Even deadly weapon”)). with a Those erroneous holding, that Carr’s statement is a it has Carr’s descriptions of statement passing no effect here: Carr concerned California dicta; they are cannot and do overrule 245(a)(2), Penal Code section assault with 750-51; Barapind, Barber. 400 F.3d at firearm, with whereas here we deal Cali- Sullivan, 915, v. 907 F.2d Ruff 245(a)(1), fornia Penal Code section (“This Cir.1990) panel is not bound deadly weapon. Nothing in Carr with a ” (internal prior quo from cases.... dicta suggests that it intended to overrule Bar- omitted)). The issue whether tation marks ber. Nor could Carr have overruled Bar- assault with a under Cali ber in the absence of an intervening 245(a)(1) fornia Penal Code section is a Gammie, law. See Miller change in banc) plainly (9th Cir.2003) (en 889, for review.” presented was not an “issue (describing three-judge pan- of a limits at 750. Neither Carr Barapind, authority).1 el’s however, Barber, panel, we cannot over- three-judge 1. Carr did not mention and it con- Indeed, reasoning. only absence of certain circum- very rule Can in the tains little Miller, We reasoning 335 F.3d at 899-900. in Can is a citation to two cases stances. circumstances corresponding parentheticals. In need not decide whether those our here, view, parentheticals sup- present for the reasons described in do not are cases port logic. text. Can's conclusion. Nor does As purported nor our later cases to consid- into moral turpitude] [crime ” deadly decision in have been the use of a weapon.... er—let alone overrule —our Holder, Uppal v. good Barber remains law.2 Barber. Cir.2010) Medina, (citing In re 15 I. & N. persuaded Nor are we Petitioner’s (B.I.A.1976)); Sanudo, Dec. 611 In re 23 I. concerning mens rea and the arguments & (reaffirming N. Dec. at 971 that “assault injury. extent of the Under California battery deadly weapon long has “[ajssault

law, ... general intent crime been deemed a crime involving moral tur ... mere recklessness or criminal [and] pitude by both this Board and the Federal negligence enough” is ... not to sustain a Barber, 400)). courts” (citing 207 F.2d at Williams, People conviction. 26 Cal.4th sum, we conclude that our holding in Cal.Rptr.2d P.3d Barber —that assault with a weapon (2001) (citations omitted). Moreover, Peti- under California Penal Code section glosses tioner over the fact that section 245(a)(1) is a crime involving turpi- 245(a)(1) assault; simple does not concern good tude —remains law. prohibits deadly weapon. it assault with a Second, BIA recognized, As the has that fact is an Petitioner’s conviction under 245(a)(1) Solon, California Penal “aggravating factor.” In re 24 I. Code section is a & (B.I.A.2007). 239, conviction for a “crime for which a “Although N. Dec. 245 sen- tence of rule, year longer may one or im- be general simple as a assault and 1227(a)(2)(A)(i)(II). § posed.” 8 U.S.C. A battery offense not does involve moral tur- person violating convicted of section pitude, aggravating factor can alter our 245(a)(1) punished “shall be by imprison- Sejas, determination.” In re 24 I. N.& two, three, ment in prison the state or (B.I.A.2007); Solon, Dec. I. years, four county jail or in a for not (“[T]he & N. Dec. at presence of an exceeding year, by one or a fine not ex- aggravating important factor can be in de- ceeding ($10,000), ten thousand dollars or termining particular whether assault by imprisonment.” both the fine and amounts to a crime moral turpi- tude.”). ‘aggravating “The dimensions’ glance, At it first seems clear that Peti- recognized sufficiently increasing as the tioner committed a crime for which a sen- culpability year of an assault to turn an tence longer of one or could have that, argues today 'presented 2. The dissent because we mis- for review’ and decided. Ac- case, holding cordingly, characterized Carr's in a later we are free to decide the issue by plain referring without it we are bound that to the court en banc.” mischaracteriza 750)). First, (quoting Barapind, 400 F.3d at The disagree tion. We for two reasons. as text, key point. dissent never addresses that we noted in the issue whether assault ais Second, plain common sense dictates that a "presented was not re by panel misstatement one cannot bind future ” any Barapind, view” in of the later cases. panels. Suppose we hold in “Smith fatally 400 F.3d at 750. That fact undermines section 12 of a statute is unconstitutional. If argument by the dissent’s we are bound accidentally digits we later invert the " See, e.g., the later cases’ misstatements. Chen holding mischaracterize our in “Smith as Mukasey, Cir. declaring section 21 of the statute unconstitu- 2008) ("Because interplay tional, the between the certainly that mischaracterization statutory provisions 'presented two was not respect would not bind us with to the consti- He, for review’ in we are not bound He’s tutionality description of section 21. mere not, itself, Barapind, (quoting offhand observation.” holding of an earlier case is 750)); here, where, holding F.3d cia, United States v. Macias-Valen a minimum —at (9th Cir.2007) ("In description plainly is and the erroneous issue case, then, plainly neither issue face was not considered the later cases. a misdemean- Indeed, the offense to be the statuto- declares under imposed. been up to four text, have received or. ry he could reject- But we have

years prison. in state 17(b). § Code Cal.Penal require analysis, for reasons ed Ashcroft, Garcia-Lopez In explanation. some petitioner had California, felony a crime that is “[a] violated pleaded guilty having California death, by imprisonment punishable with is (1992). That Penal Code section 487.2 by imprison- or ... prison, in the state in a by ‘imprisonment punishable crime “is jail provisions county in a under ment year or in county jail exceeding (h) of Section 1170.” of subdivision prison.’” (quoting Id. at 844 the state 17(a). “Every § other Code Cal.Penal 489(b) (1992)). Code CaLPenal ... a misdemeanor....” Id. Some suspended proceedings court had state crimes, however, by both punishable are proba- to serve petitioner and ordered the non-felony- felony-type punishments court later tion. Id. at 842. The state by impris- example, type punishments —for offense a mis- designated petitioner’s prison (felony-type punish- onment state charges. and dismissed the demeanor ment) county jail by imprisonment (non-felony-type punishment). question Those in Garcia- The relevant federal gen- penalty are known as “wobblers.” See “maximum Lopez crimes was whether the 11, Ewing California, 538 U.S. erally year. Id. at 843. possible” exceeded one 1179, 16-17, 155 L.Ed.2d 108 analysis by recognizing 123 S.Ct. began our We “wobblers”). (2003) (describing a under Califor- section 487.2 is “wobbler” next looked to nia law. Id. 844. We wobblers, Penal Code For California 17(b)’s list of California Penal Code section 17(b) cir- describes a number of section is con- circumstances in which a wobbler “is a in which the wobbler cumstances purposes.” a misdemeanor “for all sidered Relevant purposes.” for all misdemeanor that, court sus- Id. held because the We here, that section states: imposed only pended the sentence punishable, in the When a crime is 17(b)(1) apply. did not probation, section court, by impris- of the either discretion that, But we then held Id. at 844-45. prison imprison- in the or onment state the court declared the offense because jail provi- county ment in a under 17(b)(3) misdemeanor, ap- section did be (h) of sions of subdivision Section was a ply, petitioner’s and the conviction county in the imprisonment or fine or purposes.” for all Id. at “misdemeanor all jail, purposes it is a misdemeanor for 845-46. following circumstances: under the

(1) pun- judgment imposing After a point analysis, At that in the we could in the imprisonment other than ishment penalty that the maximum have concluded county in imprisonment or prison state year, applica- possible was one jail provisions of subdivision under statutory specified impris- ble section (h) of Section (the county jail non-felony-type onment year. Be- was limited to one

punishment) (3) inquiry the federal was whether grants probation the court cause When year, the penalty exceeded one imposition of sen- maximum to a defendant without In a complete. have been granting proba- analysis would tence and at the time case, tion, consequence that had no step of the defendant application or on one, thereafter, to this consequence that has much officer the court but probation or view, we wrote: “Because the In offense which our we erred in Garcia-Lopez misdemeanor, analytical he was convicted was a Ferreira that final step. Gar California Penal provides: Code section 19 cia-Lopez’s maximum possible penalty un der California law was less than Except six in cases where a different (West punishment prescribed by any § months. See Cal.Penal is Code law of state, 1992).” this every offense declared to be a Garcia-Lopez, 334 F.3d at 846. punishable misdemeanor is by imprison- Ashcroft, Ferreira v. county jail ment in the not exceeding six petitioner had months, or by fine not exceeding one pleaded guilty to violating California ($1,000), thousand dollars or both. 11377(a) Health Safety & Code section added.) (Emphasis plainly As its text (1998). “The provided statute that offend- states, provision applies only when a punished by ers ‘shall be imprisonment in designated statute is a “misdemeanor” county jail period for a of not more without further description possible ” than year or the state prison.’ Id. See, penalties. e.g., § Cal.Penal Code (quoting Cal. Health & Safety Code (“Every person who maintains or commits 11377(a) (1998)). The state court had a public nuisance ... guilty is of a misde petitioner sentenced the to four months in meanor.”); §id. (“Every person 374c who jail. the county any shoots upon firearm from or a public highway road or guilty of a misdemean- The relevant question federal in that or.”). aWhere criminal specifies statute case, in Garcia-Lopez, was whether the range punishment, however, that range maximum possible penalty exceeded one controls and section 19 apply. does not Ferreira, year. 382 F.3d at 1049-50. We See, e.g., 254, 17 In re Jennings, 34 Cal.4th that, held although the criminal statute (2004) Cal.Rptr.3d 95 P.3d wobbler, was a “[o]nce state court sen that, (explaining general, punishment “[i]n petitioner] tenced to county jail [the a for a misdemeanor cannot exceed confine term rather than a term in the pris state ment in a county jail up for to six months on, the automatically offense converted [pursuant to section but that a 19]” “viola from a felony into a misdemeanor for all 25658(c) [(2004)], tion of section though purposes.” Id. at (citing Cal.Penal not a felony, provides for punishment a 17(b)(1) § Code and Garcia-Lopez, 334 greater than prescribed for typical 844). Then, F.3d at inas Garcia-Lopez, misdemeanor because a violator ‘shall be unnecessary we took step final of hold punished differing amounts [for from sec that, law, ing California “[u]nder the maxi ”). tion 19]’ Because the relevant criminal penalty mum for a misdemeanor is six statutes at in Garcia-Lopez issue and Fer months’ imprisonment, and petition [the gave specific punishments, reira we erred offense is therefore not aggravated looking er’s] an to section general 19’s range. felony.” (citing Id. Garcia-Lopez, 334 Although analytical step had F.3d at parenthetical: with the “hold legal cases, no consequence in those it does ing regard with to a ‘wobbler’ offense that legal consequence here. The federal ‘[b]ecause the offense of which he was inquiry here is whether the state statute misdemeanor, convicted was a Garcia-Lo permitted imprisonment of at least one pez’s possible penalty maximum under 1227(a)(2)(A)(i)(II). year. § 8 U.S.C. Cal ” California law was less than six months’ 245(a)(1) ifornia Penal Code section speci (alteration in original)). punishment fies “imprisonment in the felony. was a three, Petitioner’s conviction two, years, four or prison

state Robinson, exceeding one jail for not United States county in a or Cir.1992) (9th in circum- exceeding (holding, ten thou- by a fine not year, or ($10,000), here, fine byor both the Petitioner’s sand dollars identical to stances added.) (3) 17(b)(1) (Emphasis imprisonment.” § requirements “the Petitioner’s crime assuming that Even not met” Penal Code were the California im- misdemeanor, permits a statute and, conviction was felo- accordingly, the jail not ex- county “in a prisonment part in other ny), recognized as overruled the stat- Id. Because ceeding year.” one Gonzales, 450 F.3d Ortega-Mendez v. year, for one imprisonment permits ute (9th Cir.2006). felony U.S.C. requirement under 8 one-year 245(a)(1) of section sentencing provisions 1227(a)(2)(A)(i)(II) if Peti- met even § is of more than imprisonment allow for tioner’s crime was misdemeanor. conviction Accordingly, Petitioner’s year. Penal Code section Nevertheless, and Fer- under California Garcia-Lopez 245(a)(1) held, for a “crime for indistinguish is a conviction circumstances reira these, applies. year longer or from that section a sentence of one able which follow those cases Accordingly, imposed.” we must U.S.C. may be 1227(a)(2)(A)(i)(II). analyze whether Petitioner’s Bara felony. or a was a misdemeanor Petition DENIED. Gammie, 750-51; 400 F.3d at pind, F.3d at 899-900. IKUTA, Judge, dissenting: Circuit Peti designated minute order here fact felony. That

tioner’s conviction as idiosyn Today, majority adopts conclusive, however. Fer necessarily not avoid precedent approach cratic reira, n. If section F.3d at 1051 of our en banc decisions. following one 17(b) “is automati applies, the conviction panel an en banc stated Although into a mis purposes for all cally converted is not a deadly weapon” “assault with demeanor.” Na Petitioner, section Unfortunately for Gonzales, varro-Lopez v. 17(b)(1)

17(b) apply. Section does not Cir.2007), on other overruled the state court apply does Aguila- grounds by United States imposition of the sentence suspended Oca, F.3d 915 Cir. Montes de instead, in just as probation ordered and 2011) (en banc), although and this state Garcia-Lopez, See Garcia-Lopez. by subsequent been followed ment has in- (holding, at in circumstances see, Holder, e.g., panels, Robles-Urrea here, that from Petitioner’s distinguishable Cir.2012), Castri 678 F.3d subject Garcia-Lopez was never “because Holder, 704 F.3d jons-Garcia v. punishment, judgment imposing a to majority the decides case”). 17(b)(1) to his inapplicable is precedent this be it is not bound 17(b)(3) apply. Unlike does section Nor was mistaken in Navarro-Lopez cause de- court never Garciar-Lopez, the state this conclusion. Be way the it reached misde- to clared Petitioner’s offense be prece not free to cast off cause we are meanor. Id. at 845. mistaken, dent, however unless we cor through rehearing, en banc it rect 17(b) and apply does

Because section Parker, States v. United Peti- designated the minute order because Massanari, (9th Cir.2011); Hart v. we hold felony, as a tioner’s conviction duct, Cir.2001), I re- we acting concluded that as an acces- sory dissent. after the fact spectfully could not categorically involving

constitute “crime turpi- moral I tude.” Id. at 1073. (which of

Ruben Cerón was convicted concurrence is precedential, a deadly weapon joined by with in violation of Cali- because it was seven other 245(a)(1). judges) agreed fornia Penal Code section accessory after the question before us is whether this crime fact was not a crime moral turpitude, categorically turpitude. involves moral and echoed majority’s concern about

defining turpitude crimes of moral too ex- pansively.1 A at id. 1075. The concur- majority’s rence then echoed the reasoning analytical approach We established our that in identify order to what sort of con- question Navarro-Lopez. to this In duct “offend[s] most fundamental mor- case, we whether a considered convic- al society” values of a comparative ap- accessory the fact tion after was a proach must namely, be used: we must involving turpitude. crime moral See Na- “compare a depravity crime’s with that of varro-Lopez, analyz- 503 F.3d at 1067. In crimes we previously have determined to issue, ing this we the generic first derived base, be vile depraved such —crimes term, stating definition that “a crime murder, rape, and incest.” Id. at 1074- involving moral is a crime involv- 75. It likewise noted assault with a (1) base, vile, conduct that ing is or de- deadly weapon not a involving was crime (2) praved, accepted violates moral turpitude. moral Id. at Despite standards.” Id. at 1068. definition, we Throughout breadth this warned that panel’s the en banc effort to limitless, it was not “at delimit some level involving boundaries crimes illegal all majority acts violate societal norms moral and the con- why values—that is acts illegal.” are currence stated times that three the of- Rather, at explained, Id. 1072 n. 9. we fense of assault with a weapon is “ involving turpitude’ involving ‘crimes moral not a turpitude. moral (“No See, limited category e.g., of crimes and does not court id. at 1072 has ever possession extend cover all conduct that found weapon violates of a to be a crime Carr, law.” turpitude. order determine moral Cf. “accessory whether the fact” at (holding after fell into F.3d that assault with a this limited category, compared deadly weapon it to not a (“We other crimes not deemed to be at morally turpitude)”); id. turpitudinous. See id. 1072-73. Be- held that nor burglary neither assault with nor burglary deadly weapon cause “neither assault with a constitute crimes of mor- turpitude.”); (Reinhardt, J., crimes of constitute al id. at 1075 (“There turpitude,” concurring) because could be an are other offenses vile, accessory non-turpitudinous base, depraved such eon- that are so that law, disagreed portion longstanding with concurrence stead that under case majority’s opinion which held of that involving analyzed should be crimes fraud involving "per crimes fraud were not a se separate category involving crimes moral category involving turpi- of crimes moral "base, vile, that are rather than acts J., (Reinhardt, tude." Id. at 1074 concur- depraved." or Id. ring). precedential concurrence held in- INS, to Carr v. 86 F.3d turpi- Lopez cites of moral as crimes they qualify (9th Cir.1996), that with which held assault this crimes meet ... all serious tude. Not involving moral Indeed, was not a crime standard, de- however. firearm did not mention whether ... but termined, burglary example, deadly weapon was any with other weapon ... do assault awith and assault (internal maj. op. non-turpitudinous. See ci- likewise turpitude.”) not involve moral at 427-29. omitted). tation of assault with categorization Our majority’s of the disagree I with both non-turpitudinous of as a deadly weapon sweeping precedent. aside our reasons the en banc part significant fense was a First, majority maj. op. at 429 n. 2. See necessary to the analysis and was panel’s prior in a holding that statements errs Ac Navarro-Lopez. holding ultimate majority binding if the opinion are not by this statement cordingly, we are bound relate to an that those statements decides higher authority” that “intervening absent for review.” “presented that was not issue it, see Miller v. “effectively overrulefs]” panel can define subsequent Because a (9th Gammie, Cir. F.3d broad “presented for review” as the issues 2003) (en indeed, banc), subsequent chooses, “test” narrowly as it this ly or to cite to Navarro- panels have continued regarding rule threatens to swallow our an authoritative statement Lopez as See, e.g., binding precedent. Oshodi deadly weapon is not a with a (9th Holder, 1008 n. Cir. See, e.g., turpitude. 2012) (rejecting interpretation Robles-Urrea, 708; Castrijon- 678 F.3d Holder, ID Act in Ren v. 648 F.3d REAL Moreover, Garcia, at 1212. when “that issue supervisory in our we sit en banc and act Ren ‘presented for review’ to the was not role, binding are whether our statements “is interpretation therefore its panel,” and technically necessary to they or not are here.”), and need not be considered dicta Enomoto, holdings. Barapind our granted, 678 F.3d 776 reh’g en banc (en (9th Cir.2005) 744, 751 n. 8 (internal omitted). Cir.2012) citations banc) opinion (stating “[o]ur [en banc] Here, panel Navarro-Lopez en banc by function” in supervisory provides ques that the resolution of the determined judge panels and district structing three the fact” “accessory after tion whether to determine what law courts about “how turpi a “crime constituted them.”). logic applies This binding on categorize required it to review and tude” categorization to our of different equally outside this the crimes that fell inside and Navarro-Lopez. offenses in with a category and assault the crimes it reviewed. See among

B at 1072-73. The Navarro-Lopez, 503 F.3d legal issue analysis court’s of this Contrary longstanding rules en banc to our however, be brushed aside on the ma- cannot now binding precedent, about specifically parties that the did not ground that we are not bound jority concludes to conduct such a ask the en banc court categorization of assault Navarro-Lopez’s review.2 deadly weapon because Navarro- prior Mukasey, deci el is not bound statements majority relies on Chen v. 2. The (9th Cir.2008) relating had not been to an issue that and United States v. sions F.3d 1028 review,” Macias-Valencia, sup but neither case “presented for F.3d 1012 Cir. cases, prior 2007) pan ports principle. In both principle subsequent the that a

435 Second, Hill, majority holding opinions, in that v. the errs United States 915 F.2d in ignore or overrule a by we can statement had been overruled relies on opinions of our en banc if it Sentencing the 1993 to the amendments If directly point. that is not precedent on Guidelines. United v. See States Contrer- true, of our rul- (Contreras I), were untold numbers (9th this 581 F.3d non-precedential. would be deemed ings Cir.2009). several intervening But Ninth Here, Navarro-Lopez holding applied the Circuit cases continued to cite to Hill erro- (that in assault with a firearm was Carr neously the 1993 after amendments. See turpitude) involving not a crime moral to error, at id. 1167. Because this was the with other See weapons. assault I panel Contreras said that it not was Contrary majority’s at 1072-73. id. the intervening cases, bound those argument, this is a reasonable extension of ruled that it was instead bound to follow “plain not a precedent, our misstatement” the Guidelines. See id. at 1168-69. We transposition akin to an inadvertent of two took the en banc clarify case that this maj. op. See at 429 n. 2. numbers. overruling method of cases is wrong. See II, 593 F.3d at Contreras 1136. On en Moreover, Navarro-Lopez if had even rehearing, we Carr, banc affirmed the substance a mistake in interpreting made judge panel’s opinion, three but three-judge panel such could not overrule error; panel’s analysis vacated the concerning its “[o]nly an the en banc court” can Parker, ability to overrule Hill and later such mistakes. See cases. correct Indeed, stating at See id. that we are not F.3d 1184.3 re- bound expressly judge panels in to follow jected majority’s approach citing United three to Carr (Contreras II), v. because their decisions have misinterpret- States Contreras (en (9th Cir.2010) banc). it, 428-29, op. ed maj. majority see case, it In that was clear that one our error.4 commits similar question acknowledged decision in had that 892-93. Even if there were a conflict be passing precedential. Navarro-Lopez its remarks were not tween Barber or our sub Chen, law, (“We sequent three-judge panel 524 F.3d acknowl- See at 1033 case cannot however, edged, by ignoring in He prec that observation resolve the [our conflict later Gonzales, Rather, (9th Cir.2007) appropriate 501 F.3d 1128 about “the edent. mechanism potential petitioners] resolving relief available to the an irreconcilable conflict is an us.”); was before en also Macias-Valen- banc decision.” Atonio v. Wards Cove cia, Co., (9th (holding 510 F.3d at Packing that “our use 810 F.2d 1478-79 Cir.1987) (enbanc). subjunctive” mentioning argu- an passing "suggests ment that we knew that addressing, we were not we could and that majority Curiously, ap- 4. eschews this Here, argument). not address” Na- proach part opinion, second in the of its varro-Lopez panel repeatedly en banc asserted acknowledges where it that we are bound deadly weapon assault with a is not a Ashcroft, Garcia-Lopez v. 334 F.3d 840 and no- Cir.2003) Ashcroft, and Ferreira v. suggested categorization where this (9th Cir.2004) obviously despite their non-precedential offhand remark. interpretation of erroneous California law. ("Nevertheless, maj. op. at 432 See Garcia- Thus, held, Lopez it does not matter that earlier and Ferreira in circumstances in- these, three-judge panel distinguishable held that from section 19 Accordingly, applies. is a crime we must follow those analyze turpitude. maj. op. (citing See whether at 427-28 cases and [Ceron’s] Barber, felony. Barapind, was a or a misdemeanor Gonzales 750-51; 1953)). Gammie, An en banc all 335 F.3d at Cir. decision overrules 400 F.3d at Gammie, ”). precedent. prior F.3d at sum, authority majority lacks the Ninth rul sweep multiple aside Circuit including opinion, an en banc ings, it Bara ruling prefers. on the

insist & n. Because pind, 400 F.3d at 750-51 8. panel established that assault our en banc weapon is not a crime involv I ing dissent. America, STATES of UNITED Plaintiff-Appellee, LKAV, Male, Defendant- Juvenile

Appellant. No. 12-10483. Appeals, States United Court Ninth Circuit. Argued and Submitted Feb. 2013. April Filed

Case Details

Case Name: Ruben Ceron v. Eric H. Holder Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 2, 2013

Citation: 712 F.3d 426

Docket Number: 08-70836

Court Abbreviation: 9th Cir.