United States v. Lopez-Chavez

• Decision Date: 03 July 2014
• Docket Number: No. 11–50277.,11–50277.
• Citation: 757 F.3d 1033
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brigido LOPEZ–CHAVEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

757 F.3d 1033

UNITED STATES of America, Plaintiff–Appellee,

v.Brigido LOPEZ–CHAVEZ, Defendant–Appellant.

No. 11–50277.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 6, 2014.

Filed July 3, 2014.

Harini P. Raghupathi, Federal Defenders of San Diego, San Diego, CA, for Defendant–Appellant.

Mark R. Rehe, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:10–cr–04882–LAB–1.

Before: ALEX KOZINSKI, Chief Judge, and STEPHEN REINHARDT and RICHARD R. CLIFTON, Circuit Judges.

OPINION

OPINION REINHARDT, Circuit Judge:

Brigido Lopez–Chavez challenges his conviction for criminal reentry by making a collateral attack on his underlying removal order. He argues that his attorney in the immigration proceedings provided ineffective assistance of counsel in erroneously conceding his removability, failing to appeal the removal order to the Board of Immigration Appeals (“BIA”), and failing to petition the Seventh Circuit for review. He asserts that counsel's ineffective performance was prejudicial because Lopez–Chavez's state crime of conviction—possession of marijuana with intent to deliver under Missouri Revised Statutes § 195.211—did not constitute an aggravated felony under the Immigration and Nationality Act (“INA”). We hold that Lopez–Chavez received ineffective assistance of counsel throughout the immigration proceedings, that he was deprived of his right to due process, that the proceedings were fundamentally unfair, and that the indictment for criminal reentry must be dismissed.

I.

Brigido Lopez–Chavez is the son of a seasonal agricultural laborer who originally came to work in the United States through the Bracero Program. In 1984, when his father began to have health problems and could no longer endure the physically demanding work in the fields, Lopez–Chavez came to Live Oak, California, and worked picking lemons, cherries, apples, strawberries, grapes, and lettuce, in order to help support his family. In 1986, Lopez–Chavez moved to St. Louis, Missouri, where he worked as a busboy and then a prep cook in a Chinese restaurant. On December 1, 1990, Lopez–Chavez became a legal permanent resident. He paid taxes and purchased a mobile home but was still able to send money home to his parents in Mexico to which his father had returned. Lopez–Chavez also helped his sister and her family and his brother and his family settle into St. Louis and find employment.

On February 7, 2003, Lopez–Chavez was convicted of possessing marijuana with intent to deliver under Missouri Revised Statutes § 195.211. He received a sentence of 90 days with work release authorization and five years probation. On June 13, 2003, he was issued a Notice to Appear (“NTA”) that set forth five factual allegations: (1) Lopez–Chavez was not a citizen or national of the United States, (2) he was a native and citizen of Mexico, (3) he entered the country without inspection, (4) he adjusted to the status of Legal Permanent Resident in 1990, and (5) he was convicted for the offense of “Possession with Intent to Deliver a Controlled Substance, a Class B Felony, in violation of Section 195.211” of the Missouri Revised Statutes. On the basis of those allegations, he was charged as being removable under INA § 237(a)(2)(A)(iii) as having “been convicted of an aggravated felony as defined in Section 101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as defined in section 924(c) of Title 18, United States Code.”

Attorney Pari Sheth entered an appearance as Lopez–Chavez's counsel. Before the removal hearing had taken place, Sheth inexplicably filed a “motion to reopen and for a stay of deportation proceedings pending a bond hearing.” At the removal hearing, Sheth conceded all five factual allegations of the NTA. When the Immigration Judge (“IJ”) asked for a response to the charge that Lopez–Chavez had been convicted of an aggravated felony, Sheth and the IJ had the following exchange:

IJ: And charge? (long pause) Yes, I'm still waiting.

PS: Right. He admits to part of it. Denies part of it.

IJ: Well there's only one part really that, and that is that after admission you have been convicted as a aggravated, of an aggravated felony under 101(a)43 (b). That's it.

PS: Okay. You're right sir.

IJ: So I don't see how it's divisible really.

PS: He admits it.

IJ: Okay. I find I agree. I find that the respondent is removable as charged.

Sheth reserved Lopez–Chavez's right to appeal, but did not file an appeal of the removal order with the BIA, nor did he petition the Court of Appeals for the Seventh Circuit for review; ¹ finally, he did not discuss with Lopez–Chavez the possibility of challenging the aggravated felony charge. Lopez–Chavez was deported on August 1, 2003.

On September 30, 2010, Lopez–Chavez was arrested at the San Ysidro, California, Port of Entry, pedestrian facility, where he had attempted to elude inspection. He was indicted for attempted reentry under 8 U.S.C. § 1326(a) and (b) and illegal entry under 8 U.S.C. § 1325. Lopez–Chavez moved to dismiss the illegal reentry charge by collaterally attacking the underlying removal order. He argued that his removal was invalid, and in violation of his right to due process, because his immigration attorney had provided ineffective assistance throughout the removal proceedings and because the state conviction for possession with intent to deliver did not constitute an aggravated felony under the INA. The district judge denied the motion. Lopez–Chavez pleaded guilty to count one, the attempted reentry charge, reserving the right to appeal the district court's denial of his motion to dismiss the indictment based on an invalid deportation. Lopez–Chavez appeals.

II.

“We review de novo the district court's denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion to dismiss is based on alleged due-process defects in the underlying deportation proceeding.” United States v. Moriel–Luna, 585 F.3d 1191, 1196 (9th Cir.2009).

III.

“Because the underlying removal order serves as a predicate element of an illegal reentry offense under § 1326, a defendant charged with that offense may collaterally attack the removal order under the due process clause.” United States v. Reyes–Bonilla, 671 F.3d 1036, 1042 (9th Cir.2012) (quoting United States v. Pallares–Galan, 359 F.3d 1088, 1095 (9th Cir.2004)). In order to prevail on such an attack, a defendant must show, among other things,² that the removal was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). A removal is “fundamentally unfair” if the defendant's due process rights were violated in the removal proceedings and he suffered prejudice as a result. United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004).

In his motion to dismiss the indictment, Lopez–Chavez argued that the removal was fundamentally unfair because he received ineffective assistance of counsel throughout the removal proceedings and because his state crime of conviction was not an aggravated felony as defined in federal law. The district court denied the motion. We agree with Lopez–Chavez that his due process rights were violated in the removal proceedings, that he suffered prejudice as a result, that the removal order was fundamentally unfair, and that the indictment must be dismissed.

A

To determine whether Lopez–Chavez received ineffective assistance of counsel, we first consider the question whether his state crime of conviction—possession of a controlled substance with intent to deliver, a violation of Missouri Revised Statutes § 195.211—had been held to be an aggravated felony under the INA at the time of the immigration proceedings. We then examine the question whether his counsel rendered ineffective assistance of counsel in conceding that Lopez–Chavez was convicted of an aggravated felony under the INA and whether counsel's performance resulted in prejudice that rendered his removal fundamentally unfair.

Lopez–Chavez was charged as removable on the ground of having “been convicted of an aggravated felony as defined in Section 101(a)(43)(B)” of the INA. To determine whether Lopez–Chavez's conviction qualifies as an aggravated felony, we look “to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). “[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense ‘necessarily’ involved facts equating to the generic federal offense.” Id. (citing Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion) (alterations and internal quotation marks omitted)).

The Controlled Substances Act treats possession of marijuana with intent to distribute as a felony, except that “distributing a small amount of marihuana for no remuneration” is a misdemeanor. 21 U.S.C. § 841(a) & (b); Moncrieffe, 133 S.Ct. at 1685–86.³Missouri Revised Statutes § 195.211,⁴ however, criminalizes conduct that may fit under either the felony or the misdemeanor provisions of the Controlled Substances Act, because convictions under the Missouri statute can involve small amounts of marijuana distributed for no remuneration; yet all the conduct prohibited by the Missouri statute constitutes a felony under state law. See, e.g., State v. Kellner, 103 S.W.3d 363, 365–66 (Mo.Ct.App.2003) (distribution includes being in possession of a substance and giving it to another person); State v. Lawson, 232...