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United States v. Ochoa

United States Court of Appeals, Ninth Circuit

July 3, 2017

United States of America, Plaintiff-Appellee,
Jose Ochoa, Defendant-Appellant.

          Argued and Submitted August 9, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California, No. 3:14-cr-00525-RS-1 Richard Seeborg, District Judge, Presiding

          Geoffrey A. Hensen (argued), Chief Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.

          Phillip Kopczynski (argued), Special Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

          Before: Susan P. Graber and M. Margaret McKeown, Circuit Judges, and Barbara M. G. Lynn, [*] Chief District Judge.


         Criminal Law

         The panel granted a petition for panel rehearing, withdrew its memorandum disposition filed December 14, 2016, denied a petition for rehearing en banc as moot, and filed a published opinion reversing the defendant's conviction for illegal reentry in violation of 8 U.S.C. § 1326.

         The removal underlying the defendant's illegal reentry conviction was based on the defendant's prior conviction for conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778.

         The panel held that by criminalizing unlicensed exports of a broad range of munitions, § 2278 sweeps more broadly than the generic federal aggravated felony or firearms offenses, and that the defendant's underlying conviction thus does not categorically qualify as a proper § 1326 predicate offense. The panel held that § 2278 is not divisible, and thus did not proceed to the modified categorical approach. Because the statute was overbroad and indivisible, the § 2278 conviction could not serve as a proper predicate for removal.

         The panel remanded with instructions to dismiss the indictment.

         Concurring, Judge Graber, joined by Judge McKeown and Chief District Judge Lynn, wrote separately to express her view that this case should be reheard en banc to correct this court's course with respect to the scope of collateral challenges under 8 U.S.C. § 1326(d), which has strayed increasingly far from the statutory text and is out of step with sister circuits' correct interpretation.


         Appellant's petition for panel rehearing is GRANTED. The memorandum disposition previously filed December 14, 2016, and appearing at 665 F.App'x 635, is hereby withdrawn. As the court's memorandum disposition is withdrawn, Appellant's petition for rehearing en banc is DENIED as moot. A published opinion will be filed contemporaneously with this order. Further petitions for rehearing and rehearing en banc may be filed.


          PER CURIAM:

         Defendant Jose Ochoa, a citizen of Mexico, was convicted of conspiracy to export defense articles without a license, 18 U.S.C. § 371, 22 U.S.C. § 2778, and was removed from the United States because of that conviction. When he returned to the United States, he was convicted of illegal reentry in violation of 8 U.S.C. § 1326. In this appeal, he argues that the removal order was invalid because his 18 U.S.C. § 371 conviction for conspiring to violate 22 U.S.C. § 2778 was not a categorical match to the Immigration and Nationality Act's ("INA") aggravated felony or firearms offense categories. Reviewing de novo, United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014), we hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.


         In 1998, Defendant was indicted for violating 18 U.S.C. § 371, the generic conspiracy statute; the object of the conspiracy was a violation of the Arms Export Control Act, 22 U.S.C. § 2778, exporting defense articles without a license. Defendant pleaded guilty to those charges in 1998 and was sentenced to a term of imprisonment. While in federal prison, he was served with a notice to appear in November 1998, charging him with removability. The notice to appear alleged, among other things, that Defendant was convicted on April 6, 1998, of conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778(a), and that the "'defense articles' included firearms and ammunition per criminal indictment #CR-M-97-387." Defendant's purported removability was predicated on conviction of an aggravated felony as set forth in 8 U.S.C. § 1101(a)(43)(C) and on conviction of a firearms offense as set forth in 8 U.S.C. § 1227(a)(2)(C).

         At the hearing before an immigration judge ("IJ") on January 21, 1999, Defendant appeared without a lawyer, though he was offered more time to secure one. At the outset, the IJ explained that Defendant could appeal any decision rendered and provided Defendant with a document correctly explaining his appellate rights. With respect to the underlying conviction, the IJ asked if "some of the things [he was] exporting [were] firearms and ammunition, " and Defendant answered, "Yes I was." After reviewing the certified indictment and judgment, the IJ explained that those documents "indicate[d] that between December 4th of 1997 and December 7th of that same year, [Defendant] and others conspired to ship firearms and ammunition from the United States to Mexico, " and that the "[vehicle] [Defendant] was in possession of contained 9 firearms and approximately 28, 000 rounds of ammunition." The IJ "f[ou]nd that the charge of deportability under section [237(a)(2)(C)] of the [INA] has been sustained" and allowed the government "to amend by pen and ink the charge under 237 to read 101(a)(43)(U), " clarifying that Defendant's conviction was for conspiracy. The IJ found Defendant removable as charged.

         After an exchange with Defendant, the IJ concluded: "I don't see that there is any relief available to you." He continued: "Now, you can accept that decision but if you disagree with it, you would have 30 days to appeal it. Did you want to accept my decision or reserve your right to appeal?" Defendant accepted. He served the remainder of his federal prison sentence and was removed to Mexico following his release on April 13, 2001.

         In 2014, federal agents discovered Defendant in California; he was indicted for illegal reentry, under 8 U.S.C. § 1326. Defendant moved to dismiss the indictment, arguing that his 2001 removal proceedings violated due process because his prior conviction constituted neither an aggravated felony nor a firearms offense-an argument known as a "collateral attack" on the removal order. The district court denied that motion, Defendant was convicted, and the court sentenced Defendant to 16 months in prison. Following his release, Defendant was removed to Mexico once again. Defendant timely appeals.


         A. Availability of Collateral Review

         A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction. United States v. Aguilera-Rios, 769 F.3d 626, 629-30 (9th Cir. 2014); see also United States v. Mendoza-Lopez, 481 U.S. 828, 838 (1987) (holding, before enactment of § 1326(d), that due process requires an opportunity to collaterally challenge a removal proceeding "at the very least where the defects . . . foreclose judicial review of that proceeding"). The mechanism for mounting such a challenge is codified in § 1326(d). To succeed, Defendant must demonstrate that: (1) he has exhausted any administrative remedies that may have been available to seek relief from the order; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). But under our circuit's law, if Defendant was not convicted of an offense that made him removable under the INA to begin with, he is excused from proving the first two requirements. See United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006) (holding all three requirements satisfied when notice to appear had charged removability solely on the basis of a crime that was not an aggravated felony under intervening case law); United States v. Pallares-Galan, 359 F.3d 1088, 1096, 1103-04 (9th Cir. 2004) (analyzing the statute of conviction to determine that the removal order was improper, satisfying first two elements, but remanding for the district court to consider the third element).

         As explained below, we conclude that Defendant's statute of conviction was not an aggravated felony. And "§ 1326(d)(1) and (d)(2) [a]re satisfied when the IJ improperly characterized a prior conviction as an aggravated felony and erroneously informed the alien that he was ineligible for discretionary relief." United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1131 (9th Cir. 2013). With respect to § 1326(d)(3), we have explained that, if Defendant "'was removed when he should not have been, ' his . . . removal was fundamentally unfair, and he may not be convicted of reentry after deportation." Aguilera-Rios, 769 F.3d at 630 (quoting Camacho-Lopez, 450 F.3d at 930). In its original briefing, the ...

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