United States v. Flores, 16-50096

• Citation: 901 F.3d 1150
• Decision Date: 28 August 2018
• Docket Number: No. 16-50096,16-50096
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edwin Ricardo FLORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

901 F.3d 1150

UNITED STATES of America, Plaintiff-Appellee,
v.
Edwin Ricardo FLORES, Defendant-Appellant.

No. 16-50096

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2017—Pasadena, California
Filed August 28, 2018

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Ryan V. Fraser (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

D. Benjamin Holley (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Mary H. Murguia,^* Circuit Judges.

WARDLAW, Circuit Judge:

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Edwin Flores, a native and citizen of Mexico, appeals his conviction for attempting to reenter the United States after being deported in violation of 8 U.S.C. § 1326(a). Flores moved to dismiss the indictment because the underlying basis of his deportation was a 2001 conviction of three counts of receiving stolen property under California Penal Code § 496(a), which the Immigration and Naturalization Service ("INS") deemed an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G). Section 1227(a)(2)(A)(iii) of that chapter renders deportable aliens convicted of aggravated felonies, which include "a theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G).

We therefore must decide whether a California conviction for receipt of stolen property is categorically an aggravated felony within the Immigration and Naturalization Act ("INA"). Although our court has previously ruled that California's receipt of stolen property statute "fits within the generic definition of theft," Verdugo-Gonzalez v. Holder , 581 F.3d 1059, 1061 (9th Cir. 2009), Flores challenges this conclusion because the federal generic definition of "theft" requires a lack of consent on the part of the property owner, and property may be "stolen" under California law with the owner's consent, e.g. by fraudulent means. We nonetheless hold that California's receipt of stolen property offense is a categorical match for the generic federal crime of receipt of stolen property and that it is therefore not unreasonable for the Board of Immigration Appeals ("BIA") to construe it as a felony "theft offense (including receipt of stolen property)," that is, as an aggravated felony as defined in the INA. For that and other reasons discussed below, we conclude that the district court properly denied Flores's motion to dismiss the indictment, and we affirm his conviction.

I.

Born in 1977 and brought to the United States by his grandmother when he was five, Flores attended school and eventually studied radio communications at Los Angeles Trade-Tech. Flores worked at Ramirez Electronics from 1999 to 2009, except for the times he was in custody or outside of the United States.

Flores has an extensive criminal history.¹ Most relevant here is his 2001 conviction for three counts of receipt of stolen property, for which he was sentenced to two years in custody. In 2002, while incarcerated, Flores was charged by the INS as deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his convictions

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were for aggravated felonies as defined by 8 U.S.C. § 1101(a)(43)(G), that is, "a theft offense (including receipt of stolen property)." He was ordered removed on that basis; the order was executed on September 3, 2002.

Between 2002 and 2009, this administrative removal order was reinstated three times. However, in 2009, Flores was subject to expedited removal proceedings after he presented a counterfeit Resident Alien Card, I-551, to border officers at the San Ysidro Port of Entry. Flores signed sworn admissions that he had purchased the counterfeit I-551 in Tijuana, presented it at the Port of Entry hoping to make it to Los Angeles, was previously deported, and failed to apply for permission to reenter the United States. He was removed to Mexico.²

This appeal stems from Flores's January 6, 2015, re-entry and indictment for violating 8 U.S.C. § 1326. He moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) for lack of a valid predicate order of deportation. Flores argued that the 2002 removal was invalid because receipt of known stolen property, California Penal Code § 496(a), is not an aggravated felony and that the 2009 expedited removal was invalid because his due process rights were violated.³ The district court denied the motion.

Flores subsequently moved in limine to exclude the government's fingerprint expert, David Beers, on Daubert grounds, which the district court denied. Beers testified that Flores's fingerprint matched the fingerprint on his prior deportation orders.

The district court, after a bench trial, found Flores guilty of violating 8 U.S.C. § 1326(a) & (b) and imposed a sentence at the midrange of the guidelines, forty months, noting that Flores had previously served twenty-seven months and thirty-three months for two prior section 1326 convictions.⁴ Flores timely appeals.

II.

We have jurisdiction to review Flores's criminal conviction pursuant to 28 U.S.C. § 1291. "The Court of Appeals reviews de novo the 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 an underlying deportation proceeding." United States v. Muro-Inclan , 249 F.3d 1180, 1182 (9th Cir. 2001). De novo review also applies when an appellant argues that the conviction underlying the challenged removal proceeding does not constitute an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(G). See United States v. Gonzalez-Corn , 807 F.3d 989, 993 (9th Cir. 2015). The district court's factual findings, however, are reviewed for clear error. United States v. Gonzalez-Villalobos , 724 F.3d 1125, 1129 (9th Cir. 2013). "We review the admission of expert testimony at trial for an abuse of discretion."

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Estate of Barabin v. AstenJohnson, Inc. , 740 F.3d 457, 460 (9th Cir. 2014) (en banc).

III.

Flores collaterally attacks his underlying 2002 removal order as "fundamentally unfair," 8 U.S.C. § 1326(d)(3),⁵ because the INS incorrectly determined that California's crime of receipt of stolen property is an aggravated felony. See Gonzalez-Corn , 807 F.3d at 993. He also claims that due process violations prejudiced his 2009 expedited removal proceedings. See United States v. Barajas-Alvarado , 655 F.3d 1077, 1087–88 (9th Cir. 2011).

A. Receipt of Stolen Property

The question before us is whether Flores's convictions under California Penal Code section 496(a)⁶ for receipt of stolen property are aggravated felonies under the INA. We have previously applied the categorical analysis to hold that "there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense." Verdugo-Gonzalez , 581 F.3d at 1061. But wait, says Flores, how can this be when this court has also repeatedly held that California's theft statute, California Penal Code section 484(a),⁷ is not a categorical match with the generic "theft offense" in 8 U.S.C. § 1101(a)(43)(G) because the generic federal theft offense encompasses only takings without consent and, in contrast, California's theft statute expressly criminalizes takings with consent—"such as theft of labor, false credit reporting, and theft by false pretenses." Lopez-Valencia v. Lynch , 798 F.3d 863, 868 (9th Cir. 2015) ;⁸ see Bell v. Feibush , 212 Cal.App.4th 1041, 151 Cal.Rptr.3d 546, 551 (Ct. App. 2013).

1. The Meaning of the Word "Including"

Flores's argument rests on the express language of 8 U.S.C. § 1101(a)(43)(G),

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which defines aggravated felonies to include "a theft offense (including receipt of stolen property)." He contends that if "theft" includes receipt of stolen property, and California's definition of theft is not a categorical match for generic theft, receipt of stolen property must also be deemed overbroad. This argument, however, fails to address the inherent ambiguity in the word "including."

Flores is right that, on the one hand, "including" could mean a subset: the generic federal offense of "receipt of stolen property" must satisfy the elements of a generic federal "theft offense," that is, the property must have been stolen through a generic theft offense, meaning without the owner's consent. California Penal Code section 496(a), however, lacks such a requirement. Instead, it criminalizes receipt of property taken from its owner through any theft, with or without consent.⁹ Therefore, if we conclude that "including" has only the one meaning of "subset," receiving known stolen property under California law would not be a categorical match with the generic federal offense of "receipt of stolen property."

On the other hand, however, the word "including"...