United States v. Vega-Ortiz

• Decision Date: 28 October 2013
• Docket Number: Case No. 13–cr–1636–BTM.
• Citation: 994 F.Supp.2d 1091
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Martin VEGA–ORTIZ, Defendant.

994 F.Supp.2d 1091

UNITED STATES of America, Plaintiff,

v.Martin VEGA–ORTIZ, Defendant.

Case No. 13–cr–1636–BTM.

United States District Court,

S.D. California.

Signed Oct. 28, 2013.

Anne K. Perry and Mark R. Rehe, Assistant United States Attorneys, Office of the United States Attorney, San Diego, CA, for Plaintiff.

Sara D. Brin, Assistant Federal Public Defender, Federal Defenders of San Diego, Inc., for Defendant.

Order Denying Defendant's Motion to Dismiss the Information

BARRY TED MOSKOWITZ, Chief Judge.

Defendant Martin Vega–Ortiz (“Mr. Vega” or “the defendant”) is charged with a single count of being a removed alien unlawfully present in the United States in violation of 8 U.S.C. § 1326. He entered a not guilty plea on May 28, 2013. The defendant has moved to dismiss the information. The Court denies the motion for the reasons set forth herein.

I. BACKGROUND¹

Mr. Vega emigrated to the United States without a visa in 1983 and joined his lawfully present family in California. (Decl. ¶¶ 2–4.) He remained in California for some 28 years, working primarily as a forklift driver. (Decl. ¶ ¶ 6, 8.) He has three children, each a U.S. citizen. (Decl. ¶ 7.) In December 2010, he was convicted of possessing a controlled substance (methamphetamine) for sale in violation of Cal. Health & Safety Code § 11378 and § 11379(a).² On June 29, 2011, a Notice to Appear was issued alleging his unlawful presence and directing him to appear before an immigration judge (“IJ”). A deportation hearing was held on August 15, 2011. (Opp'n, Ex. 3.) At that hearing, the government added charges of deportability, alleging the December 7, 2010 conviction to be an aggravated felony under § 101(a)(43)(B) of the INA. The IJ entered an order of removal to Mexico following the hearing. (Opp'n, Exs. 5 & 6.) On August 16, 2011, the defendant was removed to Mexico. (Opp'n Ex. 7.)

During the hearing, Mr. Vega admitted, inter alia, to two convictions for violations of the California Health & Safety Code. The IJ also examined the charging documents concerning those convictions and found that Mr. Vega had been convicted of an aggravated felony. Mr. Vega was accordingly found subject to removal pursuant to (1) Immigration & Nationality Act (“INA”) § 237(a)(2)(B)(i) (8 U.S.C. § 1227(a)(2)(B)(i)) for his conviction of a controlled substance offense, and (2) INA § 237(a)(2)(B)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. (Opp'n 3, Ex. 4.) The IJ informed Mr. Vega that he would not be permitted to return to the United States. A related consequence was that Mr. Vega was ineligible for “pre-conclusion voluntary departure” under INA § 240B(a). See8 U.S.C. § 1229c; 8 C.F.R. § 1240.26.

Some four months after his deportation, Mr. Vega re-entered the United States, and the removal order was reinstated. (Opp'n, Ex. 7.) In April 2013, he was arrested a few miles north of the Mexican border, and he admitted to being a Mexican citizen lacking permission to enter the U.S. He has been charged by information with violating 8 U.S.C. § 1326. He now collaterally attacks his removal orders and seeks dismissal, arguing that (1) his convictions do not constitute aggravated felonies, (2) he was therefore eligible for voluntary departure, and (3) his hearing was constitutionally deficient because he was not so informed. (Mot. to Dismiss 5–6.)

II. LEGAL FRAMEWORK

To sustain a collateral attack under § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). An underlying deportation order is “fundamentally unfair” if (1) the defendant's due process rights were violated by defects in his deportation proceeding, and (2) he suffered prejudice as a result. Id.

An alien cannot collaterally attack an underlying removal order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). However, the exhaustion requirement of 8 U.S.C. § 1326(d) “cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.” United States v. Muro–Inclan, 249 F.3d 1180, 1183 (9th Cir.2001).³ If Mr. Vega was eligible for voluntary departure, the exhaustion requirement is excused here because the IJ did not mention voluntary departure at the hearing, as would be required by 8 C.F.R. § 1240.11(a)(2).

III. DISCUSSION

A. § 11378 Is Not Categorically An Aggravated Felony

The government contends that Mr. Vega was properly deported because an alien “convicted of an aggravated felony at any time after admission is deportable,” 8 U.S.C. § 1227(a)(2)(A)(iii), and is ineligible for voluntary departure. U.S. v. Valdavinos–Torres, 704 F.3d 679 (9th Cir.2012). Mr. Vega does not dispute that a felony methamphetamine trafficking violation qualifies as an aggravated felony. Rather, the parties argue vigorously over whether the Court may look to Mr. Vega's underlying conviction to determine whether it constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), which includes drug trafficking crimes. See generally Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.2008). According to Mr. Vega, neither the IJ nor this Court may “look behind the curtain” of the conviction to determine whether the substance was one prohibited under the federal Controlled Substances Act (“CSA”), 21 U.S.C. § 802. This argument is based on the fact that § 11378 does not name methamphetamine or any other substance. Instead, like the CSA, it references five lists or “Schedules” of substances in other Code sections. For clarity, California Health & Safety Code § 11378 is reproduced here in extenso:

Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision of Section 11054, (4) (20) except paragraphs (13), (14), (15), (20), (21), (22), of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, 4 specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) an (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

To determine whether Mr. Vega's conviction under that statute constitutes an aggravated felony, the Court uses the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, the Court looks only to the fact of conviction and the elements of the alleged predicate offense to determine whether it satisfies the definition of the qualifying federal offense (i.e., whether it is an aggravated felony). Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013) (“to satisfy the categorical approach, a state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that is an offense under the [CSA], and the [CSA] must ‘necessarily’ prescribe felony punishment for that conduct.”). Here, it is undisputed that not all convictions under § 11378 qualify as drug trafficking offenses because it criminalizes a “broader swath” of drugs than those proscribed by the CSA. Cabantac v. Holder, 693 F.3d 825, 825–26 (9th Cir.2012)amended on denial of reh'g by736 F.3d 787, 793–94 (9th Cir.2013); Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir.2009). Since it is possible to violate § 11378 without violating the CSA, Mr. Vega's conviction is not categorically an aggravated felony. Valdavinos–Torres, 704 F.3d at 686–87. Typically, the Court would therefore turn to the “modified categorical approach,” examining certain “approved documents” in the record to identify the substance underlying the conviction and determining whether it was one proscribed by the CSA. ⁴ But Mr. Vega argues that approach is impermissible here under the Supreme Court's recent decision in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). If he's right, the categorical analysis ends here, short of the proof necessary to establish an aggravated felony conviction. The Court therefore turns to Descamps to determine whether the modified categorical approach is applicable. Cf.She v. Holder, 629 F.3d 958, 963–4 (9th Cir.2010).

B. § 11378 Is Subject to the Modified Categorical Approach

In Descamps, the defendant pled guilty to burglary in violation of a statute that applies whenever someone enters a certain place intending to commit a crime therein. Some thirty years later, he was sentenced in federal court for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In deciding whether a sentence enhancement applied, the court had to determine whether the burglary conviction constituted a “violent felony” under the federal Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The definition of violent felony includes burglary, but that crime is given a “generic” definition which requires not just entering, but also “breaking” (i.e., unlawful entry), and thus does not encompass, e.g., shoplifting. Using the modified categorical approach, the district judge read the plea colloquy, found that the defendant had admitted to breaking and entering a grocery store, and applied the ACCA sentence enhancement. The Ninth Circuit affirmed.

The Supreme Court reversed,...