United States v. Vasquez-Gonzalez

• Decision Date: 22 August 2018
• Docket Number: No. 15-10285,15-10285
• Citation: 901 F.3d 1060
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo VASQUEZ-GONZALEZ, AKA Gonzalo Vasquez-Gonzalez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

901 F.3d 1060

UNITED STATES of America, Plaintiff-Appellee,

v.Gonzalo VASQUEZ-GONZALEZ, AKA Gonzalo Vasquez-Gonzalez, Defendant-Appellant.

No. 15-10285

United States Court of Appeals, Ninth Circuit.

Filed August 22, 2018

Submission Deferred November 15, 2016^*

Robert Carlin and Lara S. Vinnard, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Jose, California, for Defendant-Appellant.

Meredith B. Osborn and Kirstin M. Ault, Assistant United States Attorneys; J. Douglas Wilson, Chief, Appellate Division; Alex G. Tse, Acting United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: J. Clifford Wallace, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

This case presents the question whether a conviction for assault with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury under California Penal Code § 245(a)(1), as it was written prior to its amendment in 2011, qualifies as a conviction for a "crime of violence" within the meaning of 18 U.S.C. § 16(a). We hold that it does.

Gonzalo Vasquez-Gonzalez, a citizen of Mexico, was convicted under § 245(a)(1) in 1995. He was removed from the United States because that conviction was determined to be a crime of violence. He later returned to the United States and was eventually convicted of illegal reentry in violation of 8 U.S.C. § 1326. He now appeals that illegal reentry conviction.

A valid removal order is a predicate element of a conviction for illegal reentry under § 1326. A defendant may therefore challenge a conviction for illegal reentry by collaterally attacking his underlying removal. Vasquez brings two collateral attacks on his removal. In his first collateral attack, he argues that his removal was invalid because his California conviction was not a crime of violence within the meaning of 18 U.S.C. § 16. Section 16 contains two subsections, (a) and (b), and the Supreme Court held § 16(b) void for vagueness in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). Thus, we must look only to § 16(a) in determining whether Vasquez's conviction was for a crime of violence. We conclude that his prior conviction was for a crime of violence under § 16(a).

In his second collateral attack, Vasquez argues that he was eligible for discretionary relief from removal at the time of his deportation and that the immigration judge failed to inform him of that eligibility. The failure to inform Vasquez of his eligibility for relief can serve as a basis to collaterally attack a removal order if Vasquez can establish that it was plausible that he would have been granted relief from removal. Based on the facts of his case, however, we conclude that it is not plausible that he would have been granted relief at the time of his removal.

We affirm Vasquez's conviction for illegal reentry.

I. Background

Vasquez was brought by his mother to the United States when he was five years old, and he became a legal permanent resident when he was fourteen. He graduated from high school in 1993.

In 1994, Vasquez was arrested for felony grand theft from a person. The same day, he was arrested for misdemeanor battery arising out of a separate incident with a different victim. He was convicted of both crimes and sentenced to 180 days of imprisonment and 36 months of probation. Just over six months after his conviction, Vasquez stabbed a man on the street after stealing two bottles of beer from him. He was convicted of assault with a deadly weapon pursuant to California Penal Code § 245(a)(1), and he was sentenced to four years of imprisonment.

While incarcerated, Vasquez was involved in eight gang-related fights, and he was found guilty of being in possession of a stabbing instrument. According to Vasquez, the guards at Corcoran State Prison forced him to fight other inmates. He acknowledges, though, that he was charged with involvement in a fight before his transfer to Corcoran. He also admits that two fights and the charge for weapons possession occurred after he was transferred away from Corcoran.

In 1998, while Vasquez was in prison, he was placed in removal proceedings following the issuance of a notice to appear which alleged that he was removable under the Immigration and Nationality Act (INA) for being convicted of an aggravated felony. Vasquez was removed to Mexico on September 7, 1999. He re-entered the United States without inspection or permission thirteen days later. After his reentry, Vasquez worked full-time as a furniture deliveryman and furniture assembler.

He also helped to raise two daughters, a biological daughter who is now 17 and a step-daughter who is now 21.

On May 13, 2014, Vasquez was charged with one count of violating 8 U.S.C. § 1326 by illegally reentering the United States. Prior to his charge for illegal reentry, Vasquez had not been charged with any crime since his arrests in 1994.

Vasquez filed a motion to dismiss the information, arguing that the 1999 removal order was invalid because the immigration judge failed to advise him that he was eligible for relief from removal under former section 212(c) of the INA. The district court denied the motion, and Vasquez was convicted of illegal reentry following a stipulated facts bench trial. Vasquez was sentenced to 15 months of imprisonment and a three-year term of supervised release.¹

II. Discussion

"We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on alleged due process defects in an underlying deportation proceeding." United States v. Alvarado-Pineda , 774 F.3d 1198, 1201 (9th Cir. 2014) (citation omitted).

A. California Penal Code § 245(a)(1)

Vasquez challenges the validity of his underlying removal order. "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. Ochoa , 861 F.3d 1010, 1014 (9th Cir. 2017) (citations omitted); see also United States v. Martinez , 786 F.3d 1227, 1230 (9th Cir. 2015).

Under the INA, an alien is removable if he "is convicted of an aggravated felony at any time after admission." 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes a "crime of violence" as defined by 18 U.S.C. § 16. See 8 U.S.C. §§ 1101(a)(43)(F). Vasquez was removed because his California conviction was determined to be a crime of violence under § 16. He argues now that his removal order was invalid because his conviction did not qualify as a crime of violence.

To determine whether Vasquez's state law conviction qualifies as a crime of violence, we apply the categorical approach laid out in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Fernandez-Ruiz v. Gonzales , 466 F.3d 1121, 1125 (9th Cir. 2006) (en banc). The categorical approach requires us to compare the elements of the state statute of conviction to the elements of the generic federal crime, and then to determine whether the full range of conduct covered by the state statute falls within the conduct covered by the federal statute. Suazo Perez v. Mukasey , 512 F.3d 1222, 1225 (9th Cir. 2008).²

Vasquez was convicted for violating California Penal Code § 245(a)(1). At the time of Vasquez's conviction, that statute provided punishment for:

Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.

1993 Cal. Stat. 2168 (formerly codified at Cal. Penal Code § 245(a)(1) ).

The term "crime of violence" is defined in § 16 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.

The Supreme Court held that § 16(b) is void for vagueness in Dimaya . See Dimaya , 138 S.Ct. at 1223. That holding is retroactive to Vasquez's removal. See Aguilera-Rios , 769 F.3d at 633 (when challenging a conviction for illegal re-entry, a court's decision is retroactive to the time of removal if it invalidates the basis for removal). We must therefore consider whether the full range of conduct covered by the California statute falls within the definition provided in § 16(a).

We have previously concluded that a conviction for violation of California Penal Code § 245(a)(1) is categorically a crime of violence for federal sentencing purposes. United States v. Grajeda , 581 F.3d 1186 (9th Cir. 2009) ; see also United States v. Jimenez-Arzate , 781 F.3d 1062, 1065 (9th Cir. 2015). In doing so, we relied on our opinion in United States v. Heron-Salinas , 566 F.3d 898 (9th Cir. 2009), in which we held that assault with a firearm under California Penal Code § 245(a)(2) is categorically a crime of violence under 18 U.S.C. § 16. See Grajeda , 581 F.3d at 1195–97 (discussing Heron-Salinas ). Our analysis in Heron-Salinas referred to language contained in both subsections of § 16, both (a) and (b), so it arguably relied, at least in part, on the language of § 16(b). Heron-Salinas , 566 F.3d at 899. As § 16(b) has since been held void, we revisit the question to determine whether our past holdings remain valid. See Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (discussing circumstances in which a three-judge panel of this court may conclude that our prior precedent is no longer valid).

Vasquez argues that the mens rea requirements for the two statutes are not a categorical match.³ According to Vasquez, § 16(a) requires an intentional...