United States v. Ochoa, 15-10354

Decision Date03 July 2017
Docket NumberNo. 15-10354,15-10354
Parties UNITED STATES of America, Plaintiff-Appellee, v. Jose OCHOA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Geoffrey A. Hansen (argued), Chief Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.

Phillip Kopczynski (argued), Special Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Susan P. Graber and M. Margaret McKeown, Circuit Judges, and Barbara M.G. Lynn,* Chief District Judge.

Concurrence by Judge Graber


Appellant's petition for panel rehearing is GRANTED. The memorandum disposition previously filed December 14, 2016, and appearing at 665 Fed.Appx. 635, is hereby withdrawn. As the court's memorandum disposition is withdrawn, Appellant's petition for rehearing en banc is DENIED as moot. A published opinion will be filed contemporaneously with this order. Further petitions for rehearing and rehearing en banc may be filed.



Defendant Jose Ochoa, a citizen of Mexico, was convicted of conspiracy to export defense articles without a license, 18 U.S.C. § 371, 22 U.S.C. § 2778, and was removed from the United States because of that conviction. When he returned to the United States, he was convicted of illegal reentry in violation of 8 U.S.C. § 1326. In this appeal, he argues that the removal order was invalid because his 18 U.S.C. § 371 conviction for conspiring to violate 22 U.S.C. § 2778 was not a categorical match to the Immigration and Nationality Act's ("INA") aggravated felony or firearms offense categories. Reviewing de novo, United States v. Alvarado-Pineda , 774 F.3d 1198, 1201 (9th Cir. 2014), we hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.


In 1998, Defendant was indicted for violating 18 U.S.C. § 371, the generic conspiracy statute; the object of the conspiracy was a violation of the Arms Export Control Act, 22 U.S.C. § 2778, exporting defense articles without a license. Defendant pleaded guilty to those charges in 1998 and was sentenced to a term of imprisonment. While in federal prison, he was served with a notice to appear in November 1998, charging him with removability. The notice to appear alleged, among other things, that Defendant was convicted on April 6, 1998, of conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778(a), and that the " ‘defense articles' included firearms and ammunition per criminal indictment #CR-M-97-387." Defendant's purported removability was predicated on conviction of an aggravated felony as set forth in 8 U.S.C. § 1101(a)(43)(C) and on conviction of a firearms offense as set forth in 8 U.S.C. § 1227(a)(2)(C).

At the hearing before an immigration judge ("IJ") on January 21, 1999, Defendant appeared without a lawyer, though he was offered more time to secure one. At the outset, the IJ explained that Defendant could appeal any decision rendered and provided Defendant with a document correctly explaining his appellate rights. With respect to the underlying conviction, the IJ asked if "some of the things [he was] exporting [were] firearms and ammunition," and Defendant answered, "Yes I was." After reviewing the certified indictment and judgment, the IJ explained that those documents "indicate[d] that between December 4th of 1997 and December 7th of that same year, [Defendant] and others conspired to ship firearms and ammunition from the United States to Mexico," and that the "[vehicle] [Defendant] was in possession of contained 9 firearms and approximately 28,000 rounds of ammunition." The IJ "f[ou]nd that the charge of deportability under section [237(a)(2)(C) ] of the [INA] has been sustained" and allowed the government "to amend by pen and ink the charge under 237 to read 101(a)(43)(U)," clarifying that Defendant's conviction was for conspiracy. The IJ found Defendant removable as charged.

After an exchange with Defendant, the IJ concluded: "I don't see that there is any relief available to you." He continued: "Now, you can accept that decision but if you disagree with it, you would have 30 days to appeal it. Did you want to accept my decision or reserve your right to appeal?" Defendant accepted. He served the remainder of his federal prison sentence and was removed to Mexico following his release on April 13, 2001.

In 2014, federal agents discovered Defendant in California; he was indicted for illegal reentry, under 8 U.S.C. § 1326. Defendant moved to dismiss the indictment, arguing that his 2001 removal proceedings violated due process because his prior conviction constituted neither an aggravated felony nor a firearms offense—an argument known as a "collateral attack" on the removal order. The district court denied that motion, Defendant was convicted, and the court sentenced Defendant to 16 months in prison. Following his release, Defendant was removed to Mexico once again. Defendant timely appeals.

A. Availability of Collateral Review

A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to 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. Aguilera-Rios , 769 F.3d 626, 629–30 (9th Cir. 2014) ; see also United States v. Mendoza-Lopez , 481 U.S. 828, 838, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (holding, before enactment of § 1326(d), that due process requires an opportunity to collaterally challenge a removal proceeding "at the very least where the defects ... foreclose judicial review of that proceeding"). The mechanism for mounting such a challenge is codified in § 1326(d). To succeed, Defendant must demonstrate that: (1) he has exhausted any administrative remedies that may have been available to seek relief from the order; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). But under our circuit's law, if Defendant was not convicted of an offense that made him removable under the INA to begin with, he is excused from proving the first two requirements. See United States v. Camacho-Lopez , 450 F.3d 928, 930 (9th Cir. 2006) (holding all three requirements satisfied when notice to appear had charged removability solely on the basis of a crime that was not an aggravated felony under intervening case law); United States v. Pallares-Galan , 359 F.3d 1088, 1096, 1103–04 (9th Cir. 2004) (analyzing the statute of conviction to determine that the removal order was improper, satisfying first two elements, but remanding for the district court to consider the third element).

As explained below, we conclude that Defendant's statute of conviction was not an aggravated felony. And "§ 1326(d)(1) and (d)(2) [a]re satisfied when the IJ improperly characterized a prior conviction as an aggravated felony and erroneously informed the alien that he was ineligible for discretionary relief." United States v. Gonzalez-Villalobos , 724 F.3d 1125, 1131 (9th Cir. 2013). With respect to § 1326(d)(3), we have explained that, if Defendant " ‘was removed when he should not have been,’ his ... removal was fundamentally unfair, and he may not be convicted of reentry after deportation." Aguilera-Rios , 769 F.3d at 630 (quoting Camacho-Lopez , 450 F.3d at 930 ). In its original briefing, the government conceded that "[Defendant's] appeal turns on the third prong of this test" and that, if the third prong is satisfied, "his appeal should be granted."

When evaluating whether a defendant "would have had the right to be in the United States, as a lawful permanent resident, but for the IJ's determination that he was removable," we have adopted the view that "statutory interpretation decisions are fully retroactive." Id. at 633 (applying intervening Supreme Court precedent retroactively); see also Pallares-Galan , 359 F.3d at 1103–04 (conducting statutory interpretation and applying it retroactively). As a result, we can identify no bar in 8 U.S.C. § 1326(d) to considering Defendant's challenge on the merits. Here, the § 1326(d) inquiry collapses into a de novo review of Defendant's removability in 1998.

B. Categorical Analysis

Defendant argues that his prior conviction did not support removal. To analyze that question, we apply the categorical approach announced by the Supreme Court in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny. The analysis proceeds in three steps:

[W]e inquire first "whether the elements of the crime of conviction sufficiently match the elements of the generic federal crime." If the statute is overbroad and thus not a categorical match, we next ask whether the statute's elements are also an indivisible set. Finally, if the statute is divisible, then the modified categorical approach applies and "a sentencing court looks to a limited class of documents to determine what crime, with what elements, a defendant was convicted of."

United States v. Arriaga-Pinon , 852 F.3d 1195, 1198–99 (9th Cir. 2017) (alterations omitted) (quoting Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016) ).

1. Overbreadth

In determining whether the statute of conviction "categorically qualifies as a predicate offense" for immigration purposes, "we focus solely on whether the elements of the statute of conviction match the elements of the identified qualifying federal offense." Id. at 1199 (citing Taylor , 495...

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