United States v. Guizar-Rodriguez

• Citation: 900 F.3d 1044
• Decision Date: 17 August 2018
• Docket Number: No. 16-10507,16-10507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo GUIZAR-RODRIGUEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

900 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee,

v.Ricardo GUIZAR-RODRIGUEZ, Defendant-Appellant.

No. 16-10507

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2018—San Francisco, California

Filed August 17, 2018

Cristen C. Thayer (argued) and Amy B. Cleary, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Reno, Nevada; for Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; United States Attorney's Office, Reno, Nevada; for Plaintiff-Appellee.

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and David C. Nye,^* District Judge.

N.R. SMITH, Circuit Judge

As we have previously determined, "even the least touching with a deadly weapon or instrument is violent in nature." United States v. Grajeda , 581 F.3d 1186, 1192 (9th Cir. 2009). Thus, battery committed with the use of a deadly weapon under Nevada Revised Statute § 200.481(2)(e)(1) is a crime of violence as defined in 18 U.S.C. § 16(a).

I. FACTS AND PROCEDURAL HISTORY

In 1998, Ricardo Guizar-Rodriguez, a citizen of Mexico, was convicted in Nevada of battery committed with the use of a deadly weapon. See Nev. Rev. Stat. § 200.481(2)(e)(1). The Immigration and Naturalization Service ("INS") determined that battery committed with the use of a deadly weapon under Nevada law was an aggravated felony and ordered Guizar-Rodriguez's removal on that basis.¹ Guizar-Rodriguez was removed from this country.

In 1999, Guizar-Rodriguez illegally reentered the United States. In 2004, Guizar-Rodriguez was again removed, this time based on his illegal reentry. After his second deportation, Guizar-Rodriguez again reentered the United States.

On April 20, 2016, a Nevada grand jury indicted Guizar-Rodriguez with unlawful reentry. Guizar-Rodriguez moved to dismiss the indictment on the ground that his initial deportation was unlawful, because battery committed with the use of a deadly weapon under Nevada law is not an aggravated felony. The district court rejected this argument. Consequently, Guizar-Rodriguez pleaded guilty but reserved the right to challenge the district court's ruling on appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. "We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 [for illegal reentry] when the motion is based on alleged due process defects in an underlying deportation proceeding." United States v. Vega-Ortiz , 822 F.3d 1031, 1034 (9th Cir. 2016) (quoting United States v. Alvarado-Pineda , 774 F.3d 1198, 1201 (9th Cir. 2014) ). Similarly, we review de novo a district court's determination that a state crime is a crime of violence. United States v. Rivera-Muniz , 854 F.3d 1047, 1048–49 (9th Cir. 2017).

III. DISCUSSION

A.

"A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order, because the removal order serves as a predicate element of his conviction." United States v. Ubaldo-Figueroa , 364 F.3d 1042, 1047 (9th Cir. 2004). Section 1326(d) allows a defendant collaterally to attack the underlying deportation order if "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." In this appeal, we need review only whether the entry of Guizar-Rodriguez's initial removal order was fundamentally unfair.²

"An underlying order is ‘fundamentally unfair’ if (1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." Id. "Where a prior removal order is premised on the commission of an aggravated felony, a defendant who shows that the crime of which he was previously convicted was not, in fact, an aggravated felony, has established both that his due process rights were violated and that he suffered prejudice as a result." United States v. Martinez , 786 F.3d 1227, 1230 (9th Cir. 2015). Thus, Guizar-Rodriguez is entitled to a dismissal if his conviction for battery with the use of a deadly weapon was not a crime of violence.

To determine whether battery committed with the use of a deadly weapon is a crime of violence, "we apply the categorical and modified categorical approaches." Mendoza v. Holder , 623 F.3d 1299, 1302 (9th Cir. 2010) (quotation marks omitted).

This requires following a three-step process. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). First, "we compare the statute of conviction to the removal statute's definition of aggravated felony." Carlos-Blaza v. Holder , 611 F.3d 583, 587 (9th Cir. 2010). "If every conviction under the statute of conviction is also an aggravated felony, then there is a ‘categorical match’ and the defendant's conviction perforce qualifies as an aggravated felony." Id. Second, if section 200.481(2)(e)(1) is " ‘overbroad,’ meaning that it criminalizes conduct that goes beyond the elements of the federal offense," we then must determine "whether the statute is ‘divisible’ or ‘indivisible.’ "³ Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015) (quoting Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014) ). Third, if the statute is divisible, "we may examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating." Id . at 868. As we explain below, we need not determine whether the statute is divisible, because Nev. Rev. Stat. § 200.481(2)(e)(1), battery committed with a deadly weapon, is a categorical crime of violence.

B.

A crime of violence is "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."⁴ 18 U.S.C. § 16(a) ; 8 U.S.C. § 1101(a)(43)(F) (defining an "aggravated felony" as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year"). " ‘[P]hysical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (original emphasis omitted). Guizar-Rodriguez must show that there is "a realistic probability, not a theoretical possibility, that [Nevada] would apply its statute to conduct that falls outside [this definition]." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Ordinarily, "he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the [overbroad] manner for which he argues." Id. However, "when a ‘state statute's greater breadth is evident from its text,’ a [defendant] need not point to an actual case applying the statute of conviction in a[n overbroad] manner." Chavez-Solis v. Lynch , 803 F.3d 1004, 1010 (9th Cir. 2015) (quoting United States v. Grisel , 488 F.3d 844, 850 (9th Cir. 2007) ). In determining whether the statute's overbreadth is "evident," we look both to the text of the statute and to state court interpretations of the statute. United States v. Strickland , 860 F.3d 1224, 1226 (9th Cir. 2017). Here, Guizar-Rodriguez contends that, based on Nevada Supreme Court precedent, section 200.481(2)(e)(1) is not a crime of violence.

Section 200.481(2)(e)(1) prohibits "any willful and unlawful use of force or violence upon the person of another ... committed with the use of a deadly weapon ... [that results in] [n]o substantial bodily harm to the victim." § 200.481(1)(a), (2)(e). To commit simple battery in Nevada, the "force need not be violent or severe and need not cause bodily pain or bodily harm." Hobbs v. State , 127 Nev. 234, 251 P.3d 177, 179 (2011). As a result, simple battery in Nevada would not ordinarily be a crime of violence under Johnson 's definition of "physical force." See Grajeda , 581 F.3d at 1192. However, "even the least touching with a deadly weapon or instrument is violent in nature," because it "demonstrates at a minimum the threatened use of actual force."⁵ Id. Thus, the outcome of this case depends on Nevada's definition of "use of a deadly weapon" in section 200.481(2)(e). If Nevada law requires actual use of a truly "deadly" weapon, then it is a crime of violence. Grajeda , 581 F.3d at 1192.

1.

Nevada courts have an extensive common law tradition of defining the term "deadly weapon." "As early as 1870, [the Nevada Supreme C]ourt defined objects as ‘deadly weapons’ if they satisfied either the inherently dangerous or the functional test." Rodriguez v. State , 407 P.3d 771, 773 (Nev. 2017) (emphasis omitted). Under the inherently dangerous test, a deadly weapon is any instrument that "if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death." Zgombic v. State , 106 Nev. 571, 798 P.2d 548, 551 (1990)superseded by statute as recognized in Rodriguez , 407 P.3d at 774. Under the functional test, a deadly weapon is any instrumentality that is "used in a deadly manner." Id. at 550.

The Nevada Supreme Court recently addressed the definition of "deadly weapon" in section 200.481(2)(e). Rodriguez , 407 P.3d at 772. The Rodriguez Court held conclusively that "the Legislature intended ‘deadly weapon’ within [ section] 200.481(2)(e) to be interpreted broadly, according to both the functional definition and the inherently dangerous definition ." Id. at 774 (emphasis added). We take the Nevada Supreme Court at its word.

The disjunctive definition of "deadly weapon" articulated by the Nevada Supreme Court is nearly identical to the definition of "deadly weapon" in...