United States v. Gonzalez-Corn

• Decision Date: 17 July 2015
• Docket Number: No. 13–50480.,13–50480.
• Citation: 807 F.3d 989
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mario Modesto GONZALEZ–CORN, aka Mario M. Gonzalez, aka Mario Modesto Gonzalez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

807 F.3d 989

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.

Argued and Submitted May 5, 2015.

Filed July 17, 2015.

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, CA, 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, CA, for Plaintiff–Appellee.

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

Before: RAYMOND C. FISHER, CARLOS T. BEA and MICHELLE T. FRIEDLAND, Circuit Judges.

OPINION

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, ––– U.S. ––––, 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 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 violation of his right to due process under the Fifth Amendment. See 8 U.S.C. § 1326(d). Specifically, he argued the immigration judge erred in determining his marijuana conviction was for an aggravated felony. The district court denied the motion. Gonzalez appeals that ruling.

In the ensuing trial, the government was required to prove Gonzalez was an alien at the time of the offense. See United States v. Ruiz–Lopez, 749 F.3d 1138, 1141 (9th Cir.2014). The government's evidence of alienage included Gonzalez's prior deportation order, his prior statements that he was a native and citizen of Mexico and not of the United States, and his Mexican photo identification and voter registration cards. The parties disputed how the jury should be instructed in considering this evidence.

Gonzalez proposed three jury instructions on the subject: (1) the jury may not rely on an IJ's order of deportation to determine whether Gonzalez was an alien, because he was not entitled to counsel in immigration court and the government had a lower burden of proof there; (2) an IJ's order of deportation, by itself, is insufficient to establish alienage; and (3) Gonzalez's prior admissions of Mexican citizenship were not sufficient, without more, to prove alienage. The district court rejected the first instruction but said the second and third might be appropriate if combined. At the court's request, the parties submitted a joint instruction combining the second and third instructions, and included an additional statement that a defendant's admissions of foreign citizenship in combination with a deportation order or other corroborating evidence may establish alienage.

The district court ultimately gave the jury a slightly modified version of the jointly proposed instruction, without objection from the defense. The instruction stated:

The Government has presented evidence that Defendant was ordered removed by an immigration judge in a deportation proceeding. An immigration judge's order of deportation alone is insufficient as a matter of law to establish defendant's status as an alien. Similarly, a defendant's statement about his citizenship is not sufficient, without independent corroborating evidence, to prove that he is an alien. However, a defendant's admissions in combination with a prior deportation order or other corroborating evidence may establish alienage.

During deliberations, the jury submitted a note to the court asking two questions about the alienage instruction:

(1) Is it enough that the government considered [Gonzalez-]Corn an alien at the time he entered the country for [Gonzalez-]Corn to be determined to be an alien?

(2) Does the word may in the [alienage instruction] mean it does establish alienage[?]

The court responded to the first question by referring the jury to the language in the instruction: "an immigration judge's order of deportation alone is insufficient as a matter of law to establish a defendant's status as an alien." The court further explained that if the only evidence the government offered on alienage was the deportation order, that would not be enough. In response to the second question, the court said "the word ‘may’ ... means that it can establish or it cannot establish. In other words, there's a possibility. It's up to the jury to weigh the evidence and decide whether or not the defendant's admissions in combination with a prior deportation order or other corroborating evidence may establish alienage."

The next day the jury found Gonzalez guilty. We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we affirm.

II. STANDARD OF REVIEW

We review de novo the denial of a motion to dismiss a charge for illegal reentry based on a deportation order that is alleged to be fundamentally unfair. See United States v. Sandoval–Orellana, 714 F.3d 1174, 1178 (9th Cir.2013). We also review de novo whether a district court's jury instructions stated the law correctly. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir.2011).

III. DISCUSSION

A. Aggravated Felony Determination

"Because the underlying removal order serves as a predicate element of [a § 1326 illegal reentry offense], a defendant charged with that offense may collaterally attack the removal order under the due process clause." United States v. Camacho–Lopez, 450 F.3d 928, 930 (9th Cir.2006) (alteration in original) (quoting United States v. Pallares–Galan, 359 F.3d 1088, 1095 (9th Cir.2004) ). To do so, a defendant must show: (1) he exhausted any administrative remedies to appeal the order, (2) the deportation proceedings deprived him of the opportunity for judicial review, and (3) the entry of the order was fundamentally unfair. See 8 U.S.C. § 1326(d). At issue in this appeal is the third element: whether Gonzalez's deportation was fundamentally unfair because the IJ incorrectly determined Gonzalez's prior conviction was for an aggravated felony. See Camacho–Lopez, 450 F.3d at 930. We hold Gonzalez's conviction was for an aggravated felony and his deportation order was therefore valid and not fundamentally unfair.

The INA authorizes 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 term "aggravated felony" includes "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." Id. § 1101(a)(43)(B). Section 924(c), in turn, defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq. )." 18 U.S.C. § 924(c)(2). A "felony" is classified as an offense for which the "maximum term...