United States v. Martinez-Hernandez

Decision Date09 January 2019
Docket Number No. 17-50295,No. 16-50423,16-50423
Citation912 F.3d 1207
Parties UNITED STATES of America, Plaintiff-Appellee, v. Josue MARTINEZ-HERNANDEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Oscar Carcamo-Soto, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Doug Keller (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendants-Appellants.

Daniel Earl Zipp (argued), Assistant United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.

Before: Johnnie B. Rawlinson, Michael J. Melloy,* and Andrew D. Hurwitz, Circuit Judges.

HURWITZ, Circuit Judge:

Josue Martinez-Hernandez and Oscar Carcamo-Soto (the "Defendants") are Mexican citizens; each entered the United States without inspection while young. Years later, each Defendant was convicted of robbery in violation of California Penal Code ("CPC") § 211. Upon completion of their prison terms, both Defendants were deported to Mexico after immigration officers determined that their robbery convictions were for "crimes of violence"—and thus constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(F).

After returning to the United States, both defendants were convicted of illegal reentry in violation of 8 U.S.C. § 1326. In these consolidated appeals, they collaterally attack their removal orders, arguing that a conviction under CPC § 211 no longer qualifies under § 1101(a)(43)(F) as a crime of violence. We agree with that argument. But that agreement avails the Defendants little, because the district courts in both cases correctly held that § 211 robbery qualifies as a generic theft offense under 8 U.S.C. § 1101(a)(43)(G), and thus is an aggravated felony under 18 U.S.C. § 1227(a)(2)(A)(iii). We therefore affirm the Defendants’ convictions.


Martinez pleaded guilty to robbery in violation of CPC § 211 in 2004 and was sentenced to five years imprisonment. Carcamo pleaded guilty to CPC § 211 robbery in 2009 and received a three-year sentence. After release from prison, each Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice") and placed in expedited removal proceedings pursuant to 8 U.S.C. § 1228. The materially identical Notices alleged that each Defendant had (1) entered the United States "without inspection, admission, or parole by an immigration officer," and (2) been later convicted of robbery in violation of CPC § 211. The Notices stated that the named Defendant was deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)"because you have been convicted of an aggravated felony as defined in ... 8 U.S.C. § 1101(a)(43)(F)." After hearings before immigration officers, both Defendants were ordered to be deported to Mexico.

Both Defendants later reentered the country, and were individually charged with violating 8 U.S.C. § 1326. They each filed motions to dismiss pursuant to 8 U.S.C. § 1326(d), claiming that their removal orders were invalid because CPC § 211 robbery was no longer treated as a crime of violence under recent Ninth Circuit decisions. The district courts denied the motions, reasoning that even if CPC § 211 robbery were not a "crime of violence" aggravated felony under § 1101(a)(43)(F), it still was a "theft offense" aggravated felony under § 1101(a)(43)(G). Carcamo entered into a conditional plea agreement allowing him to appeal the denial of his § 1326(d) motion. Martinez initially entered a guilty plea, but later withdrew it, and appealed the denial of his § 1326(d) motion. We have jurisdiction over the Defendants’ consolidated appeals under 28 U.S.C. § 1291, and review the denial of a motion to dismiss under 8 U.S.C. § 1326(d) de novo. United States v. Cisneros-Rodriguez , 813 F.3d 748, 755 (9th Cir. 2015).


A defendant charged with illegal reentry in violation of 8 U.S.C. § 1326 may "bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction." United States v. Ochoa , 861 F.3d 1010, 1014 (9th Cir. 2017). A successful collateral attack requires proof not only of a deficiency in the original removal process, but also that "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d)(2)(3). "An underlying removal 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." United States v. Ubaldo-Figueroa , 364 F.3d 1042, 1048 (9th Cir. 2004) (internal alteration omitted).


The Defendants were removed under 8 U.S.C. § 1227(a)(2)(A)(iii), which applies to an "alien who is convicted of an aggravated felony at any time after admission." Under § 1101(a)(43)(F) an "aggravated felony" is a "crime of violence" as defined in 18 U.S.C. § 16, for which the term of imprisonment is at least one year. A crime of violence under 18 U.S.C. § 16 includes, as relevant in this case, "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a).1

When the Defendants were removed, we treated a robbery conviction under CPC § 211 as a crime of violence under § 1101(a)(43)(F). See Nieves-Medrano v. Holder , 590 F.3d 1057, 1057–58 (9th Cir. 2010). But, in 2011, the California Supreme Court clarified that CPC § 211 can be violated by the accidental use of force. See People v. Anderson , 51 Cal.4th 989, 125 Cal.Rptr.3d 408, 252 P.3d 968, 972 (2011). We therefore subsequently held that a CPC § 211 conviction is not categorically a violent felony as defined in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). United States v. Dixon , 805 F.3d 1193, 1197–98 (9th Cir. 2015).

The ACCA defines a "violent felony" as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The definition of a crime of violence in 18 U.S.C. § 16(a) is materially indistinguishable, and the government has therefore wisely conceded that the defendants’ robbery convictions do not today qualify as "crimes of violence" under 8 U.S.C. § 1101(a)(43)(F). The government has also correctly conceded that the current state of Circuit law governs the Defendants’ collateral attacks of their removal orders. See United States v. Aguilera-Rios , 769 F.3d 626, 633 (9th Cir. 2014) (noting in this context that "statutory interpretation opinions are fully retroactive.").


But, the government’s concessions, while helpful, merely start our inquiry. A successful collateral attack requires proof that "entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d)(3). Thus, the Defendants must therefore "demonstrate that prejudice resulted" from a defect in the administrative process. United States v. Garcia-Martinez , 228 F.3d 956, 963 (9th Cir. 2000).


The Notices characterized the DefendantsCPC § 211 convictions as aggravated felonies because they constituted "crimes of violence" as defined in 8 U.S.C. 1101(a)(43)(F). The district courts in these cases instead found the § 211 convictions to be aggravated felonies because they were theft offenses, as defined in 8 U.S.C. § 1101(a)(43)(G). The Defendants first argue that we may not consider whether their CPC § 211 convictions qualify as aggravated felonies for a reason other than the one specified in their Notices.

The Defendants rely on the settled premise that, when considering a petition for review of a decision of the Bureau of Immigration Appeals, we "have no power to affirm the BIA on a ground never charged by the [government] or found by the IJ." Al Mutarreb v. Holder , 561 F.3d 1023, 1029 (9th Cir. 2009). But, this case arrives in a quite different procedural posture than our direct review of BIA decisions. In addressing petitions for review, our inquiry is limited to determining whether the agency decision is supported by substantial evidence or the BIA made an error of law. See Morgan v. Mukasey , 529 F.3d 1202, 1206 (9th Cir. 2008). If the agency erred, we lack the power to tell it to reach the same result for a different reason, as we would be substituting our judgment for that of the executive with respect to the discretionary decision to afford relief from removal. See Gomez-Lopez v. Ashcroft , 393 F.3d 882, 884 (9th Cir. 2005) (Judicial review is precluded "with respect to decisions that constitute an exercise of the Attorney General’s discretion."); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec. , 908 F.3d 476, 494 (9th Cir. 2018) ("[T]he APA also forecloses judicial review under its procedures to the extent that agency action is committed to agency discretion by law.") (internal quotation omitted).

Here, however, we do not directly review executive agency action. Rather, we consider appeals from district court orders rejecting collateral attacks on prior executive orders. In this context, the central issue for decision is whether a defendant "was removed when he should not have been." Aguilera-Rios , 769 F.3d at 630 (quoting United States v. Camacho-Lopez , 450 F.3d 928, 930 (9th Cir. 2006) ). If a violation of CPC § 211 is categorically a theft offense under 8 U.S.C. § 1101(a)(43)(G), the Defendants should have been removed, albeit perhaps on different statutory bases than those cited in their Notices.

The determination of whether CPC § 211 robbery is a theft offense under § 1101(a)(43)(G) is purely a question of law. See Menendez v. Whitaker , 908 F.3d 467, 471 (9th Cir. 2018). Even if the Defendants did not have occasion to address that legal question at the time of their removals, they have thoroughly done so today. If CPC § 211 robbery is an aggravated felony under § 1101(a)(...

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