and Submitted August 9, 2016 San Francisco, California
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
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
Before: Susan P. Graber and M. Margaret McKeown, Circuit
Judges, and Barbara M. G. Lynn, [*] Chief District Judge.
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.
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. §
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.
panel remanded with instructions to dismiss the indictment.
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.
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at 665 F.App'x 635, is hereby withdrawn.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court's memorandum disposition is withdrawn,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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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
Availability of Collateral Review
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).
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 ...