807 F.3d 989 (9th Cir. 2015), 13-50480, United States v. Gonzalez-Corn

Docket Nº:13-50480
Citation:807 F.3d 989
Opinion Judge:FISHER, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO MODESTO GONZALEZ-CORN, AKA Mario M. Gonzalez, AKA Mario Modesto Gonzalez, Defendant-Appellant
Attorney:Kurt Mayer and Kathryn A. Young (argued), Deputy Federal Public Defenders; Sean K. Kennedy, Federal Public Defender; Hilary Potashner, Acting Federal Public Defender, Los Angeles, California, for Defendant-Appellant. Allison L. Westfahl Kong (argued) and Jamie A. Lang, Assistant United States Att...
Judge Panel:Before: Raymond C. Fisher, Carlos T. Bea and Michelle T. Friedland, Circuit Judges. Opinion by Judge Fisher.
Case Date:July 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Defendant appealed his conviction for illegally reentering the United States after deportation, arguing that his deportation violated due process because the IJ incorrectly determined he had previously been convicted of an aggravated felony, as defined by the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43). The court held that defendant's prior conviction under the federal Controlled... (see full summary)

 
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807 F.3d 989 (9th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARIO MODESTO GONZALEZ-CORN, AKA Mario M. Gonzalez, AKA Mario Modesto Gonzalez, Defendant-Appellant

No. 13-50480

United States Court of Appeals, Ninth Circuit

July 17, 2015

Argued and Submitted, Pasadena, California May 5, 2015

Page 990

Appeal from the United States District Court for the Central District of California. D.C. No. 2:13-cr-00120-GW-1. George H. Wu, District Judge, Presiding.

SUMMARY[*]

Criminal Law

The panel affirmed a conviction for illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a).

The panel held that the defendant's prior conviction under the federal Controlled Substances Act (CSA), for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony under the Immigration and Nationality Act (INA). The panel held that because the INA incorporates felony violations of the CSA into its definition of " aggravated felony," and because the defendant was convicted of a felony violation of the CSA, his conviction qualifies as an aggravated felony on its face. The panel concluded that there is, accordingly, no need to compare the elements of his conviction to the elements of a generic federal offense of possession with intent to distribute marijuana to determine if his conviction was for an aggravated felony, as set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). The panel explained that in the aggravated felony context, the Taylor approach is intended for cases in which the defendant (or petitioner, in the immigration context) was convicted under a statutory scheme that is not directly incorporated into the INA, such as a conviction under state law.

The panel held that the district court did not err when it instructed the jury that it could infer the defendant's alienage from his prior deportation order in combination with his admissions regarding his alienage.

Kurt Mayer and Kathryn A. Young (argued), Deputy Federal Public Defenders; Sean K. Kennedy, Federal Public Defender; Hilary Potashner, Acting Federal Public Defender, Los Angeles, California, for Defendant-Appellant.

Allison L. Westfahl Kong (argued) and Jamie A. Lang, Assistant United States Attorneys; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division; Stephanie Yonekura, Acting United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Before: Raymond C. Fisher, Carlos T. Bea and Michelle T. Friedland, Circuit Judges. Opinion by Judge Fisher.

OPINION

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FISHER, Circuit Judge:

Mario Modesto Gonzalez-Corn was convicted by a federal jury of illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a). He appeals his conviction, arguing his deportation violated due process because the immigration judge (IJ) incorrectly determined he had previously been convicted of an aggravated felony, as defined by the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43). He also contends the district court improperly instructed the jury about the evidence it could consider in determining his alienage.

We hold Gonzalez's prior conviction under the federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony under the INA. Because the INA incorporates felony violations of the CSA into its definition of " aggravated felony," and because Gonzalez was convicted of a felony violation of the CSA, his conviction qualifies as an aggravated felony on its face. Accordingly, there is no need to compare the elements of his conviction to the elements of a generic federal offense of possession with intent to distribute marijuana to determine if his conviction was for an aggravated felony, as set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). In the aggravated felony context, the Taylor approach is intended for cases in which the defendant (or petitioner, in the immigration context) was convicted under a statutory scheme that is not directly incorporated into the INA, such as a conviction under state law.

We also hold the district court did not err when it instructed the jury on the evidence it could consider to determine alienage. We therefore affirm.

I. BACKGROUND

Gonzalez immigrated to the United States as a teenager and later became a legal permanent resident. In 2003 he pled guilty to possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a), (b)(1)(D). He received a sentence of 15 months in prison.

After his conviction, the government initiated removal proceedings under a provision of the INA authorizing the removal of noncitizens who have been " convicted of an aggravated felony at any time after admission." 8 U.S.C. § 1227(a)(2)(A)(iii). The government alleged Gonzalez had been convicted of " illicit trafficking in a controlled substance," which is an aggravated felony under the INA. See id. § 1101(a)(43)(B). During removal proceedings before the IJ, Gonzalez admitted he was not a U.S. citizen, his mother and father were not U.S. citizens, and he was a native and citizen of Mexico. The immigration judge found he was convicted of an aggravated felony and ordered him removed from the United States. He was deported in 2009.

Gonzalez then returned to the United States without inspection and was discovered

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by immigration agents in January 2013. He was charged in federal district court with illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). He moved to dismiss the information under § 1326(d), alleging the illegal reentry charge was based on a deportation order that was fundamentally unfair, in...

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