United States v. Sandoval-Orellana

• Decision Date: 09 May 2013
• Docket Number: No. 12–50095.,12–50095.
• Citation: 714 F.3d 1174
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Irvin SANDOVAL–ORELLANA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

714 F.3d 1174

UNITED STATES of America, Plaintiff–Appellee,

v.Irvin SANDOVAL–ORELLANA, Defendant–Appellant.

No. 12–50095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2013.

Filed May 9, 2013.

L. Marcel Stewart, San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; and Victor P. White (argued), Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:11–cr–00920–BEN–1.

Before: SIDNEY R. THOMAS and ANDREW D. HURWITZ, Circuit Judges, and RALPH R. BEISTLINE, Chief District Judge.^*

OPINION

BEISTLINE, Chief District Judge:

Irvin Sandoval–Orellana appeals his conviction of attempted entry after deportationin violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

Sandoval–Orellana was born in Guatemala in 1979 and was admitted to the United States on or about August 28, 1992, as a lawful permanent resident. In August 2003, he was convicted of “sexual penetration by foreign object” in violation of California Penal Code (“PC”) § 289(a)(1), for which he was sentenced to three years in custody.

On April 27, 2010, Sandoval–Orellana was served with a notice to appear, and on May 24, 2010, was placed in deportation proceedings. The immigration judge (“IJ”) found him removable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), which states that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).¹ Sandoval–Orellana requested voluntary departure, but the IJ found him ineligible because he was an aggravated felon. Sandoval–Orellana was removed from the United States to Guatemala on or about June 15, 2010.

On December 31, 2010, Sandoval–Orellana applied for entry into the United States at the San Ysidro, California, Port of Entry. He presented what appeared to be a valid permanent resident card and indicated that he was traveling back to Los Angeles from a visit with family in Mexico. He was detained by immigration. On March 9, 2011, a grand jury returned an indictment charging Sandoval–Orellana with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b).

A person accused of violating 8 U.S.C. § 1326 may collaterally attack the underlying deportation in certain circumstances. 8 U.S.C. § 1326(d). Accordingly, on April 26, 2011, Sandoval–Orellana filed a motion to dismiss the indictment, claiming that his original deportation was invalid.

On July 25, 2011, the district court issued a written decision denying Sandoval–Orellana's Motion to Dismiss. United States v. Sandoval–Orellana, No. 11–cr–920–BEN, 2011 WL 3205299 (S.D.Cal. July 25, 2011). Sandoval–Orellana subsequently entered a conditional guilty plea and was sentenced to fifty-seven months in prison and three years of supervised release.

Sandoval–Orellana appeals, arguing that he was wrongfully deported because he was never convicted of an aggravated felony and thus was eligible for various types of discretionary relief, including cancellation of removal under 8 U.S.C. § 1229b(a), voluntary departure under 8 U.S.C. § 1229c, and waiver of excludability under 8 U.S.C. § 1182(h). Sandoval–Orellana also argues the fifty-seven month sentence imposed was more severe than necessary to meet the goals of 18 U.S.C. § 3553(a).

II.

Under Section 237(a)(2)(A)(iii) of the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An “aggravated felony” includes “a crime of violence” as defined in 18 U.S.C. § 16 for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). A crime of violence under Title 18 (and for purposes of the INA) is defined as

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (emphasis added).

We review whether a prior conviction constitutes a crime of violence de novo. United States v. Bonilla–Montenegro, 331 F.3d 1047, 1049 (9th Cir.2003). We also review de novo the denial of a motion to dismiss pursuant to 8 U.S.C. § 1326(d). United States v. Ramos, 623 F.3d 672, 679 (9th Cir.2010). A district court's findings of fact underlying its denial of such a motion are reviewed for clear error, and we may affirm the denial of a motion to dismiss on any basis supported by the record. See United States v. Reyes–Bonilla, 671 F.3d 1036, 1042 (9th Cir.2012).

To determine whether a criminal offense qualifies as an aggravated felony, we first apply the categorical approach set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).² Under that approach, we “look only to the fact of conviction and the statutory definition of the prior offense and compare it to the generic definition of the offense.” Ramirez–Villalpando v. Holder, 645 F.3d 1035, 1039 (9th Cir.2010) (internal quotation marks and citation omitted).

PC § 289(a)(1) states, in relevant part: “Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment.” (emphasis added). Sandoval–Orellana notes that PC § 289 can be violated with consent given under duress, and therefore argues that commission of the crime does not necessarily involve violence. He attempts to draw a parallel with Valencia v. Gonzales, in which we held that statutory rape in violation of PC § 261.5(c) is not categorically a crime of violence given the possible consensual nature of such sexual intercourse. See439 F.3d 1046, 1051, 1053 (9th Cir.2006). The Valencia court noted that the statute prohibits a broad range of conduct including “consensual sexual intercourse between a twenty-one-year-old and a minor one day shy of eighteen,” and thus reasoned that violation of the statute did not necessarily involve a substantial risk of violence under § 16(b). Id. at 1051–52. Sandoval–Orellana suggests the same rationale demonstrates that PC § 289(a)(1) is not categorically a “crime of violence” under § 16(b).

But a conviction under PC § 289(a) does not rest on the victim's legal incapacity to consent to sexual penetration; rather, it requires that the sexual penetration be accomplished “against the victim's will.” PC § 289(a)(1). The statutory rape provision in Valencia,PC § 261.5(c), contains no comparable language.³ The rationale of Valencia therefore does not apply.

Section 16(b) does not require actual violence, but rather only a substantial risk of violence. We agree with the district court's conclusion that although some violations of PC § 289(a) may not involve actual violence, all will involve a substantial risk of violence. Although sexual penetration against the victim's will may be accomplished without the use of any physical force because psychological coercion may suffice, this is precisely the type of felony that “by its nature” brings with it a “substantial risk” that physical force will be used during the course of the crime. See Lisbey v. Gonzales, 420 F.3d 930 (9th Cir.2005) (finding that sexual battery under California PC § 243.4(a) carries a substantial risk of force). ⁴ The district court aptly noted that “sexual penetration of another person's body is not the type of conduct that occurs accidentally or negligently,” and that it involves an intimate violation likely to elicit physical resistance from the victim. It therefore concluded that Sandoval–Orellana's prior California conviction for violating PC § 289(a)(1) categorically qualified as a “crime of violence” under 18 U.S.C. § 16(b), and therefore he had committed an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), making him deportable under INA § 237(a)(2)(A)(iii).

We agree. In James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), the Supreme Court explained that the “ordinary case” is the proper focal point of a court's inquiry under the categorical approach:

[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury—for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets[.]

Id. at 208, 127 S.Ct. 1586 (emphasis added) (citation omitted). Sandoval–Orellana would have us do precisely what James advises against, hypothesizing a case where a person consents to sexual intercourse under duress in circumstances not presenting a real risk of violence, such as where the victim agrees to have sex to avoid eviction or professional reprisals. He argues that in both examples duress could support a conviction, and the statute therefore criminalizes conduct that does not create a “substantial risk that physical force may be used” because the intercourse would be consensual. But this argument requires the sort of theoretical possibility that was cautioned against in Gonzales v. Duenas–Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)⁵:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a...