United States v. Aguilera-Rios

Citation769 F.3d 626
Decision Date17 June 2014
Docket NumberNo. 12–50597.,12–50597.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jorge AGUILERA–RIOS, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, CA, for DefendantAppellant.

Mark R. Rehe (argued) and Bruce R. Castetter, Assistant United States Attorneys, San Diego, CA, for PlaintiffAppellee.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:11–cr–02734–H–1.



The opinion filed on June 17, 2014, is hereby amended. The superseding amended opinion will be filed concurrently with this order. No further petitions for rehearing or petitions for rehearing en banc will be entertained.


BERZON, Circuit Judge:

Jorge Aguilera–Rios (Aguilera), a citizen of Mexico, was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction under California Penal Code § 12021(c)(1) was not a categorical match for the Immigration and Nationality Act's (“INA”) firearms offense. We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.


Aguilera entered the United States without inspection at the age of five to live with his parents, who were lawful permanent residents. He became a lawful permanent resident in 2000. Two years later, he was convicted of unlawful firearms possession in violation of California Penal Code § 12021(c)(1).1

In 2005, Aguilera was served with a Notice to Appear, alleging that he had been convicted of a crime involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and a firearms offense, 8 U.S.C. § 1227(a)(2)(C), and so was subject to removal. One week later, Aguilera appeared before an Immigration Judge (“IJ”). He admitted that he had been convicted of unlawful firearms activity in violation of California Penal Code § 12021(c)(1), but did not concede removability. The IJ nonetheless held Aguilera “subject to removal as charged,” and denied him any relief from removal. Aguilera was removed to Mexico.

Six years later, Aguilera was charged with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Aguilera moved to dismiss the indictment under § 1326(d), arguing that, during the 2005 removal proceedings, the IJ did not meaningfully advise him of his opportunity to apply for voluntary departure. The district court denied the motion, and Aguilera was found guilty of illegal reentry. Aguilera was sentenced to time served, and has since been removed to Mexico.

On April 23, 2013, after Aguilera filed his opening brief in this case, the Supreme Court issued its decision in Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), concerning application of the categorical approach in immigration cases. Although that case involved a marijuana conviction, the majority opinion addressed an argument by the Solicitor General that, under the Court's analysis, “a conviction under any state firearms law that lacks ... an exception [for antique firearms present in the federal firearms statute] will be deemed to fail the categorical inquiry.” Id. at 1693. Aguilera moved to file a substitute opening brief in this case, arguing that, after Moncrieffe, his 2005 removal order was invalid for a second reason (in addition to the previously asserted due process violation): Aguilera was never deportable as charged because the California statute of conviction lacked an antique firearms exception. We accepted the substitute brief, and the government responded to Aguilera's arguments in its answering brief.

We review Aguilera's collateral attack on his 2005 removal order de novo. See United States v. Lopez–Velasquez, 629 F.3d 894, 896 (9th Cir.2010) (en banc).


“A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has a due process right to bring a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction.” United States v. Melendez–Castro, 671 F.3d 950, 953 (9th Cir.2012) (per curiam) (citation omitted). Section 1326(d) expressly provides for such collateral attacks on an underlying deportation order, but establishes limits on them. A defendant must demonstrate that: (1) he exhausted all administrative remedies available to appeal his prior removal order; (2) the prior removal proceedings “improperly deprived [him] of the opportunity for judicial review;” and (3) the entry of the prior removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d).

The government recognizes that the first two elements of § 1326(d) have been met. It maintains, however, that Aguilera “cannot meet the last element, i.e., ‘fundamental unfairness.’

“An underlying removal order is ‘fundamentally unfair’ if (1) an alien's ‘due process rights were violated by defects in the underlying deportation proceeding,’ and (2) he suffered prejudice as a result of the defects.’ United States v. Pallares–Galan, 359 F.3d 1088, 1095 (9th Cir.2004) (citation omitted). If Aguilera “was removed when he should not have been,” his 2005 removal was fundamentally unfair, and he may not be convicted of reentry after deportation. United States v. Camacho–Lopez, 450 F.3d 928, 930 (9th Cir.2006).


Aguilera's central contention is that the generic “federal definition of a ‘firearm’ specifically exempts antique firearms, while the California definition of a firearm does not. Thus, a person may be convicted under Cal [ifornia] Penal Code § 12021 for conduct that does not fall within the firearms ground of removal.” The government asks us not to reach this argument on the ground that Aguilera waived it by failing to raise it in the district court. In addition, the government argues that Moncrieffe cannot be retroactively applied to invalidate a removal that was proper under the law at the time it was ordered. We address each of these points in turn.


As to waiver, the government contends that Aguilera's failure to raise his new Moncrieffe argument “before trial” as part of his motion to dismiss the indictment effected a waiver pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). That rule provides that “a motion alleging a defect in the indictment or information” “must be raised before trial.” Fed.R.Crim.P. 12(b)(3)(B).

We decline to find such a waiver here. Rule 12(e) sets forth specifically the circumstances under which an argument is waived. It provides that [a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets [for pretrial motions].” Fed.R.Crim.P. 12(e). But Rule 12(e) further indicates that [f]or good cause, the court may grant relief from the waiver.” Id. On appeal, we have held that ‘even issues that are deemed waived [in the district court] under Rule 12 may be addressed by this court and relief may be granted’ where good cause is shown for the party's failure to raise the argument earlier.” United States v. Anderson, 472 F.3d 662, 669 (9th Cir.2006) (quoting United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir.2002) ) (internal quotation marks omitted) (emphasis and alteration in original). We find good cause to excuse Aguilera's failure to raise this argument in the district court.

Prior to Moncrieffe, Aguilera would have had no reason to challenge whether he was properly removed for a “firearms offense.” As we explain below, this Court's caselaw prior to Moncrieffe foreclosed the argument he now makes. See Gil v. Holder, 651 F.3d 1000, 1005–06 (9th Cir.2011). We have previously (albeit not explicitly in the Rule 12 context) “elect[ed] to entertain [an] issue [raised for the first time on appeal] because of a change in the intervening law that brought the issue into focus.” In re Skywalkers, Inc., 49 F.3d 546, 548 n. 4 (9th Cir.1995) (citing Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986) (holding that a change in the law during the pendency of an appeal permits entertainment of an issue not previously raised), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987) ); cf. United States v. Tekle, 329 F.3d 1108, 1112 (9th Cir.2003) (affirming finding of ‘no good cause’ to excuse a Rule 12 waiver ‘because ... United States v. Gantt, 194 F.3d 987 (9th Cir.1999)... did not change the law. In fact, the Gantt court acknowledged as much.’).

Moreover, Aguilera demonstrated diligence by moving in this Court within a month after Moncrieffe was decided to substitute his opening brief. And the government had a full opportunity to respond in written briefing and at oral argument to this purely legal issue. Aguilera has therefore shown “good cause” to excuse his failure to raise this argument in the district court. We decline to find it waived.


The government next contends that Moncrieffe cannot be retroactively applied to invalidate Aguilera's 2005 removal order. It cites United States v. Vidal–Mendoza, 705 F.3d 1012 (9th Cir.2013), for the proposition that on collateral review, a removal is to be judged “under the applicable law at the time of [the] removal hearing,” id. at 1013, not “post-removal precedent,” id. at 1016.

Vidal–Mendoza concerned the scope of an IJ's duty to advise a noncitizen of his eligibility for discretionary relief. It held that a noncitizen's due process rights are not violated if an IJ informs him, based on controlling law at the time of the removal hearing, that he is ineligible for relief, even if post-removal changes in the law would have altered that analysis. Id....

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