Ceron v. Holder

• Decision Date: 02 April 2013
• Docket Number: No. 08–70836.,08–70836.
• Parties: Ruben Adolfo CERON, aka Ruben Ceron–Casco, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

712 F.3d 426

Ruben Adolfo CERON, aka Ruben Ceron–Casco, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08–70836.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 8, 2012.

Filed April 2, 2013.

Mario Acosta, Jr., Law Offices of Mario Acosta, Jr., PLC, Los Angeles, CA, for Petitioner.

Joseph A. O'Connell, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073–969–493.

Before: MYRON H. BRIGHT,^*SUSAN P. GRABER, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge IKUTA.

OPINION

GRABER, Circuit Judge:

Petitioner Ruben Adolfo Ceron pleaded nolo contendere in California state court to assault with a deadly weapon, in violation of California Penal Code section 245(a)(1). The state court sentenced Petitioner to 364 days to be served in county jail, but it suspended that sentence and imposed probation instead. The Board of Immigration Appeals (“BIA”) held that Petitioner was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) for having committed a crime involving moral turpitude for which a sentence of at least one year's imprisonment could have been imposed. Reviewing questions of law de novo, Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008), we deny the petition for review.

First, California Penal Code section 245(a)(1) is categorically a “crime involving moral turpitude.” 8 U.S.C. § 1227(a)(2)(A)(i)(I). We held long ago that assault with a deadly weapon under California Penal Code section 245 is a crime involving moral turpitude. Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir.1953) (construing an earlier, but substantially similar version of section 245), aff'd on other grounds,347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954). That decision accorded with a long-standing BIA interpretation. In re G–R–, 2 I. & N. Dec. 733 (B.I.A.1946); see also In re Sanudo, 23 I. & N. Dec. 968, 971 (B.I.A.2006) (reaffirming that “assault and battery with a deadly weapon has long been deemed a crime involving moral turpitude by both this Board and the Federal courts” (citing Barber, 207 F.2d at 400)).

In Carr v. INS, 86 F.3d 949, 951 (9th Cir.1996), we wrote that California Penal Code section 245(a)(2), assault with a firearm, “is not a crime of moral turpitude.” We leave for another day the government's argument that Carr 's statement is dictum. See Barapind v. Enomoto, 400 F.3d 744, 750–51 (9th Cir.2005) (en banc) (per curiam) (defining dictum). Even assuming that Carr 's statement is a holding, it has no effect here: Carr concerned California Penal Code section 245(a)(), assault with a firearm, whereas here we deal with California Penal Code section 245(a)(), assault with a deadly weapon. Nothing in Carr suggests that it intended to overrule Barber. Nor could Carr have overruled Barber in the absence of an intervening change in law. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir.2003) (en banc) (describing the limits of a three-judge panel's authority).¹

In later cases, we have cited Carr 's statement in passing. Complicating matters, although Carr plainly concerned assault with a firearm, some of our later cases have mischaracterized Carr 's holding as concerning assault with a deadly weapon.See Castrijon–Garcia v. Holder, 704 F.3d 1205, 1212 (9th Cir.2013) (“ ‘Indeed, we have determined, for example, that ... assault with a deadly weapon, [Carr, 86 F.3d at 951,] do[es] not involve moral turpitude.’ ” (citation omitted) (quoting Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority))); Robles–Urrea v. Holder, 678 F.3d 702, 708 (9th Cir.2012) (same); Nicanor–Romero v. Mukasey, 523 F.3d 992, 1018 n. 6 (9th Cir.2008) (“[A]ssault with a deadly weapon does not constitute [a crime involving moral turpitude].” (citing Carr, 86 F.3d at 950–51)); Marmolejo–Campos v. Gonzales, 503 F.3d 922, 927 (9th Cir.2007) (Nelson, D.W., J., dissenting) (“[A]ssault with a deadly weapon [and other crimes] have all been found not to involve moral turpitude.” (citing Carr with the parenthetical “assault with a deadly weapon”)). Those erroneous passing descriptions of Carr's statement are dicta; they cannot and do not overrule Barber.Barapind, 400 F.3d at 750–51;see Ruff v. Sullivan, 907 F.2d 915, 918 (9th Cir.1990) (“This panel is not bound by dicta from prior cases....” (internal quotation marks omitted)). The issue whether assault with a deadly weapon under California Penal Code section 245(a)(1) is a crime involving moral turpitude plainly was not an “issue presented for review.” Barapind, 400 F.3d at 750. Neither Carrnor our later cases purported to consider—let alone overrule—our decision in Barber.Barber remains good law.²

Nor are we persuaded by Petitioner's arguments concerning mens rea and the extent of the injury. Under California law, “[a]ssault is ... a general intent crime ... [and] mere recklessness or criminal negligence is ... not enough” to sustain a conviction. People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197, 203 (2001) (citations omitted). Moreover, Petitioner glosses over the fact that section 245(a)(1) does not concern simple assault; it prohibits assault with a deadly weapon. As the BIA has recognized, that fact is an “aggravating factor.” In re Solon, 24 I. & N. Dec. 239, 245 (B.I.A.2007). “Although as a general rule, a simple assault and battery offense does not involve moral turpitude, an aggravating factor can alter our determination.” In re Sejas, 24 I. & N. Dec. 236, 237 (B.I.A.2007); see Solon, 24 I. & N. Dec. at 245 (“[T]he presence of an aggravating factor can be important in determining whether a particular assault amounts to a crime involving moral turpitude.”). “The ‘aggravating dimensions' recognized as sufficiently increasing the culpability of an assault to turn an assault into a [crime involving moral turpitude] have been the use of a deadly weapon....” Uppal v. Holder, 605 F.3d 712, 717 (9th Cir.2010) (citing In re Medina, 15 I. & N. Dec. 611 (B.I.A.1976)); In re Sanudo, 23 I. & N. Dec. at 971 (reaffirming that “assault and battery with a deadly weapon has long been deemed a crime involving moral turpitude by both this Board and the Federal courts” (citing Barber, 207 F.2d at 400)).

In sum, we conclude that our holding in Barber—that assault with a deadly weapon under California Penal Code section 245(a)(1) is a crime involving moral turpitude—remains good law.

Second, Petitioner's conviction under California Penal Code section 245(a)(1) is a conviction for a “crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). A person convicted of violating section 245(a)(1) “shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

At first glance, it seems clear that Petitioner committed a crime for which a sentence of one year or longer could have been imposed. Indeed, under the statutory text, he could have received up to four years in state prison. But we have rejected that analysis, for reasons that require some explanation.

In California, “[a] felony is a crime that is punishable with death, by imprisonment in the state prison, or ... by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.” Cal.Penal Code § 17(a). “Every other crime ... is a misdemeanor....” Id. Some crimes, however, are punishable by both felony-type punishments and non-felony-type punishments—for example, by imprisonment in state prison (felony-type punishment) and by imprisonment in county jail (non-felony-type punishment). Those crimes are known as “wobblers.” See generally Ewing v. California, 538 U.S. 11, 16–17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (describing “wobblers”).

For wobblers, California Penal Code section 17(b) describes a number of circumstances in which the wobbler “is a misdemeanor for all purposes.” Relevant here, that section states:

When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

....

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

Cal.Penal Code § 17(b).

In Garcia–Lopez v. Ashcroft, 334 F.3d 840, 842 (9th Cir.2003), the petitioner had pleaded guilty to having violated California Penal Code section 487.2 (1992). That crime “is punishable by ‘imprisonment in a county jail not exceeding one year or in the state prison.’ ” Id. at 844 (quoting Cal.Penal Code § 489(b) (1992)). The state court had suspended the proceedings and ordered the petitioner to serve probation. Id. at 842. The state court later designated the petitioner's offense a misdemeanor and dismissed the charges. Id.

The relevant federal question in Garcia–Lopez was whether the “maximum penalty possible” exceeded one year. Id. at 843. We began our analysis by recognizing that section 487.2 is a “wobbler” under California law. Id. at 844. We next looked to California Penal Code section 17(b)'s list of circumstances in which a wobbler is considered a misdemeanor “for all purposes.” Id. We held that, because the court suspended the sentence and imposed only probation, section 17(b...