United States v. Edwin Flores , 901 F.3d 1150 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50096
Plaintiff-Appellee,
D.C. No.
v. 3:15-cr-00268-MMA-1
EDWIN RICARDO FLORES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted July 13, 2017
Pasadena, California
Filed August 28, 2018
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,
and Mary H. Murguia,* Circuit Judges.
Opinion by Judge Wardlaw
*
This case was submitted to a panel that included Judge Stephen R.
Reinhardt. Following Judge Reinhardt’s death, Judge M. Murguia was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge M.
Murguia has read the briefs, reviewed the record, and listened to oral
argument.
2 UNITED STATES V. FLORES
SUMMARY**
Criminal Law
The panel affirmed a conviction for attempting to reenter
the United States after being deported in violation of 8 U.S.C.
§ 1326(a).
The panel held that receiving stolen property under
California Penal Code § 496(a) is a categorical match for the
generic federal crime of receipt of stolen property, and that it
is therefore not unreasonable for the Board of Immigration
Appeals to construe it as a felony “theft offense (including
receipt of stolen property),” that is, as an aggravated felony
as defined in the Immigration and Nationality Act. The panel
concluded that the defendant’s deportation based on a prior
conviction for receipt of stolen property, along with a
sentence of more than one year of imprisonment, was not
fundamentally unfair and was a proper basis for the
defendant’s illegal reentry conviction.
The panel rejected the defendant’s contention that he had
plausible grounds for relief from his 2009 expedited removal
in the form of withdrawal of his application for admission,
and therefore concluded that even assuming the expedited
removal proceedings violated his due process rights, he could
not establish prejudice.
The panel held that the district court, which applied
Daubert explicitly in the proceeding on the defendant’s
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FLORES 3
motion in limine and during the bench trial, did not abdicate
its gatekeeping function by admitting the testimony of a
fingerprint expert.
COUNSEL
Ryan V. Fraser (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant.
D. Benjamin Holley (argued), Assistant United States
Attorney; Helen H. Hong, Chief, Appellate Division; United
States Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
WARDLAW, Circuit Judge:
Edwin Flores, a native and citizen of Mexico, appeals his
conviction for attempting to reenter the United States after
being deported in violation of 8 U.S.C. § 1326(a). Flores
moved to dismiss the indictment because the underlying basis
of his deportation was a 2001 conviction of three counts of
receiving stolen property under California Penal Code
§ 496(a), which the Immigration and Naturalization Service
(“INS”) deemed an aggravated felony theft offense under
8 U.S.C. § 1101(a)(43)(G). Section 1227(a)(2)(A)(iii) of that
chapter renders deportable aliens convicted of aggravated
felonies, which include “a theft offense (including receipt of
stolen property) . . . for which the term of imprisonment [is]
at least one year.” 8 U.S.C. § 1101(a)(43)(G).
4 UNITED STATES V. FLORES
We therefore must decide whether a California conviction
for receipt of stolen property is categorically an aggravated
felony within the Immigration and Naturalization Act
(“INA”). Although our court has previously ruled that
California’s receipt of stolen property statute “fits within the
generic definition of theft,” Verdugo-Gonzalez v. Holder,
581 F.3d 1059, 1061 (9th Cir. 2009), Flores challenges this
conclusion because the federal generic definition of “theft”
requires a lack of consent on the part of the property owner,
and property may be “stolen” under California law with the
owner’s consent, e.g. by fraudulent means. We nonetheless
hold that California’s receipt of stolen property offense is a
categorical match for the generic federal crime of receipt of
stolen property and that it is therefore not unreasonable for
the Board of Immigration Appeals (“BIA”) to construe it as
a felony “theft offense (including receipt of stolen property),”
that is, as an aggravated felony as defined in the INA. For
that and other reasons discussed below, we conclude that the
district court properly denied Flores’s motion to dismiss the
indictment, and we affirm his conviction.
I.
Born in 1977 and brought to the United States by his
grandmother when he was five, Flores attended school and
eventually studied radio communications at Los Angeles
Trade-Tech. Flores worked at Ramirez Electronics from
1999 to 2009, except for the times he was in custody or
outside of the United States.
UNITED STATES V. FLORES 5
Flores has an extensive criminal history.1 Most relevant
here is his 2001 conviction for three counts of receipt of
stolen property, for which he was sentenced to two years in
custody. In 2002, while incarcerated, Flores was charged by
the INS as deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)
because his convictions were for aggravated felonies as
defined by 8 U.S.C. § 1101(a)(43)(G), that is, “a theft offense
(including receipt of stolen property).” He was ordered
removed on that basis; the order was executed on September
3, 2002.
Between 2002 and 2009, this administrative removal
order was reinstated three times. However, in 2009, Flores
was subject to expedited removal proceedings after he
presented a counterfeit Resident Alien Card, I-551, to border
officers at the San Ysidro Port of Entry. Flores signed sworn
admissions that he had purchased the counterfeit I-551 in
1
In 1997, Flores was convicted of receipt of stolen property and
sentenced to 180 days in custody and thirty-six months of probation.
Later that year, he was convicted of auto theft and sentenced to sixty days
in custody and thirty-six months of probation. In 2000, Flores was
charged with being a felon in possession of a firearm; he was convicted in
2001 and sentenced to six days in custody and thirty-six months of
probation. Later in 2000, Flores was charged with one count of grand
theft auto and eleven counts of receipt of stolen property. The ultimate
conviction and sentence (two years in custody for three counts of receipt
of stolen property) is the basis of the underlying deportation here. In
2005, Flores was convicted of felony burglary and sentenced to two years
in prison. He was paroled to Immigration and Customs Enforcement in
2006, returned in May 2008, and paroled in December 2008. In 2007,
Flores was charged with driving with a suspended license; he was
convicted in 2008 and sentenced to ten days in custody and three years
probation. In April 2008, he was convicted of receipt of stolen property,
sentenced to sixteen months in custody, and paroled to ICE in December
2008.
6 UNITED STATES V. FLORES
Tijuana, presented it at the Port of Entry hoping to make it to
Los Angeles, was previously deported, and failed to apply for
permission to reenter the United States. He was removed to
Mexico.2
This appeal stems from Flores’s January 6, 2015, re-entry
and indictment for violating 8 U.S.C. § 1326. He moved to
dismiss the indictment pursuant to 8 U.S.C. § 1326(d) for
lack of a valid predicate order of deportation. Flores argued
that the 2002 removal was invalid because receipt of known
stolen property, California Penal Code § 496(a), is not an
aggravated felony and that the 2009 expedited removal was
invalid because his due process rights were violated.3 The
district court denied the motion.
Flores subsequently moved in limine to exclude the
government’s fingerprint expert, David Beers, on Daubert
grounds, which the district court denied. Beers testified that
Flores’s fingerprint matched the fingerprint on his prior
deportation orders.
2
After Flores’s expedited removal, he continued to return to the
United States. Flores was apprehended in the United States on February
10, 2009, January 26, 2011, and June 5, 2012. In 2009 and 2012, Flores
was convicted of violating 8 U.S.C. § 1326, illegal reentry of removed
aliens, and sentenced to twenty-seven months and thirty-three months in
custody, respectively. Each time he was removed to Mexico.
3
Flores claims that during the expedited removal proceedings, no one
explained to him what was happening other than to indicate he would be
deported to Mexico, he did not have an opportunity to read the documents,
and he did not understand what he was signing. The government does not
contest these assertions.
UNITED STATES V. FLORES 7
The district court, after a bench trial, found Flores guilty
of violating 8 U.S.C. § 1326(a) & (b) and imposed a sentence
at the midrange of the guidelines, forty months, noting that
Flores had previously served twenty-seven months and thirty-
three months for two prior section 1326 convictions.4 Flores
timely appeals.
II.
We have jurisdiction to review Flores’s criminal
conviction pursuant to 28 U.S.C. § 1291. “The Court of
Appeals reviews de novo the denial of a motion to dismiss an
8 U.S.C. § 1326 indictment when the motion to dismiss is
based on alleged due process defects in an underlying
deportation proceeding.” United States v. Muro-Inclan,
249 F.3d 1180, 1182 (9th Cir. 2001). De novo review also
applies when an appellant argues that the conviction
underlying the challenged removal proceeding does not
constitute an aggravated felony within the meaning of
8 U.S.C. § 1101(a)(43)(G). See United States v. Gonzalez-
Corn, 807 F.3d 989, 993 (9th Cir. 2015). The district court’s
factual findings, however, are reviewed for clear error.
United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129
(9th Cir. 2013). “We review the admission of expert
testimony at trial for an abuse of discretion.” Estate of
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir.
2014) (en banc).
4
The district court agreed with the PSR and the government that an
eight-level enhancement was warranted because Flores’s prior convictions
for receipt of stolen property constituted aggravated felonies within the
guidelines.
8 UNITED STATES V. FLORES
III.
Flores collaterally attacks his underlying 2002 removal
order as “fundamentally unfair,” 8 U.S.C. § 1326(d)(3),5
because the INS incorrectly determined that California’s
crime of receipt of stolen property is an aggravated felony.
See Gonzalez-Corn, 807 F.3d at 993. He also claims that due
process violations prejudiced his 2009 expedited removal
proceedings. See United States v. Barajas-Alvarado,
655 F.3d 1077, 1087–88 (9th Cir. 2011).
A. Receipt of Stolen Property
The question before us is whether Flores’s convictions
under California Penal Code section 496(a)6 for receipt of
stolen property are aggravated felonies under the INA. We
have previously applied the categorical analysis to hold that
“there is a categorical match between the full range of
5
The first two statutory requirements, administrative exhaustion and
judicial review, 8 U.S.C. § 1326(d)(1), (2), are met because the expedited
removal proceedings afforded Flores no opportunity for administrative or
judicial review. United States v. Raya-Vaca, 771 F.3d 1195, 1202 (9th
Cir. 2014).
6
“Every person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting theft or
extortion, knowing the property to be so stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, selling, or withholding
any property from the owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in a county jail for not more
than one year, or imprisonment pursuant to subdivision (h) of Section
1170. . . . A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both
pursuant to this section and of the theft of the same property.” Cal. Penal
Code § 496(a).
UNITED STATES V. FLORES 9
conduct proscribed by section 496(a) of the California Penal
Code and the generic definition of a theft offense.” Verdugo-
Gonzalez, 581 F.3d at 1061. But wait, says Flores, how can
this be when this court has also repeatedly held that
California’s theft statute, California Penal Code section
484(a),7 is not a categorical match with the generic “theft
offense” in 8 U.S.C. § 1101(a)(43)(G) because the generic
federal theft offense encompasses only takings without
consent and, in contrast, California’s theft statute expressly
criminalizes takings with consent—“such as theft of labor,
false credit reporting, and theft by false pretenses.” Lopez-
Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015);8 see
Bell v. Feibush, 151 Cal. Rptr. 3d 546, 551 (Ct. App. 2013).
7
“Every person who shall feloniously steal, take, carry, lead, or drive
away the personal property of another, or who shall fraudulently
appropriate property which has been entrusted to him or her, or who shall
knowingly and designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real or personal
property, or who causes or procures others to report falsely of his or her
wealth or mercantile character and by thus imposing upon any person,
obtains credit and thereby fraudulently gets or obtains possession of
money, or property or obtains the labor or service of another, is guilty of
theft.” Cal. Penal Code § 484(a).
8
See also Garcia v. Lynch, 786 F.3d 789, 794–95 (9th Cir. 2015);
United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011); Carrillo-
Jaime v. Holder, 572 F.3d 747, 751–53 (9th Cir. 2009). To the extent our
2009 opinion in Verdugo-Gonzalez, 581 F.3d at 1061, holds otherwise, it
does so because it based its holding on a misreading of California law: that
it encompasses only theft without consent, when in fact it encompasses
theft with consent.
10 UNITED STATES V. FLORES
1. The Meaning of the Word “Including”
Flores’s argument rests on the express language of
8 U.S.C. § 1101(a)(43)(G), which defines aggravated felonies
to include “a theft offense (including receipt of stolen
property).” He contends that if “theft” includes receipt of
stolen property, and California’s definition of theft is not a
categorical match for generic theft, receipt of stolen property
must also be deemed overbroad. This argument, however,
fails to address the inherent ambiguity in the word
“including.”
Flores is right that, on the one hand, “including” could
mean a subset: the generic federal offense of “receipt of
stolen property” must satisfy the elements of a generic federal
“theft offense,” that is, the property must have been stolen
through a generic theft offense, meaning without the owner’s
consent. California Penal Code section 496(a), however,
lacks such a requirement. Instead, it criminalizes receipt of
property taken from its owner through any theft, with or
without consent.9 Therefore, if we conclude that “including”
has only the one meaning of “subset,” receiving known stolen
property under California law would not be a categorical
match with the generic federal offense of “receipt of stolen
property.”
9
California Penal Code section 496(a) uses the term “theft” without
including a definition, thereby incorporating California’s general theft
definition set forth in California Penal Code section 484(a). See, e.g.,
Carrillo-Jaime v. Holder, 572 F.3d 747, 751 (9th Cir. 2009). And
furthermore, California Penal Code section 490a mandates that “stolen”
within section 496(a) be read and interpreted as if it said “theft.”
UNITED STATES V. FLORES 11
On the other hand, however, the word “including” could
have been used by Congress to add a theft-related crime,
receipt of stolen property, into the list of qualifying offenses
even though it may not otherwise technically be a generic
“theft offense.” See Torres v. Lynch, 136 S. Ct. 1619, 1628
(2016) (describing 8 U.S.C. § 1101(a)(43)(G) as
incorporating “any state or foreign conviction for . . .
nonviolent activity [such] as receiving stolen property”
without mentioning “theft offense”); see generally United
States v. Yochum (In re Yochum), 89 F.3d 661, 668 (9th Cir.
1996) (“‘[I]nclude’ is frequently, if not generally used as a
word of extension or enlargement rather than as one of
limitation or enumeration.”) (quoting Am. Sur. Co. v.
Marotta, 287 U.S. 513, 517 (1933)).
Reading “including” in this way is consistent with the
distinct function of the term “stolen” in “receipt of stolen
property”: unlike the adjective “theft” in “theft offense,”
which indicates the nature of the offender’s conduct, “stolen”
describes the nature of the property involved in the offense,
independent of the offender’s conduct. One consequence of
this difference is that the elements of generic theft, “[1] the
taking of property or an exercise of control over property
[2] without consent [3] with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent,” Verdugo-
Gonzalez, 581 F.3d at 1061, are distinct from the elements of
receipt of stolen property, [1] possession [2] of stolen
property [3] knowing it was stolen, Lopez-Valencia, 798 F.3d
at 868. See also Receiving Stolen Property, Model Penal
Code § 223.6. Another consequence is that, in many
jurisdictions, including California, theft is not a lesser
12 UNITED STATES V. FLORES
included offense of receiving stolen property.10 See, e.g.,
People v. Ceja, 229 P.3d 995, 998 (Cal. 2010); Roark v.
Commonwealth, 90 S.W.3d 24, 38 (Ky. 2002); Williams v.
State, 496 N.E.2d 1282, 1284 (Ind. 1986); City of Maumee v.
Geiger, 344 N.E.2d 133, 136 (Ohio 1976) (per curiam); State
v. Kelly, 365 S.W.2d 602, 606 (Mo. 1963); Bargesser v. State,
116 So. 12, 13 (Fla. 1928). And the difference between the
generic theft definition, which requires lack of consent, and
that of California law, which does not, is irrelevant to a
conviction for receipt of stolen property. The offender must
know (or believe) the property was “stolen”; he does not need
to know how it was stolen to be convicted. See, e.g., People
v. Moss, 127 Cal. Rptr. 454, 456 (Ct. App. 1976) (“[I]t is not
necessary for the People to allege or prove that the defendant
had had any prior connection with the thief, or that the goods
received had been stolen.”); Wertheimer v. State, 169 N.E.
40, 43 (Ind. 1929) (“[I]t is not necessary to prove that the
accused knew from whom the property was stolen, or when
or where it was stolen, or who stole it, or the circumstances
under which it was stolen.”); State v. Van Treese, 200 N.W.
570, 571 (Iowa 1924) (“It was not necessary for the state to
prove that the defendant had personal knowledge of the
larceny in the sense that he was present as a witness
thereof.”); State v. Lewark, 186 P. 1002, 1003 (Kan. 1920)
(“It was not necessary to a rightful conviction that the
defendant should have been advised of the past history of the
car—from whom and when and where the larceny had taken
place, or that he should have had absolute knowledge of the
theft.” (citation omitted)); Yeargain v. State, 45 P.2d 1113,
10
One cannot be convicted for both theft and receipt of the same
stolen property because a thief cannot receive property from himself, not
because of the prohibition on double punishment. See, e.g., People v.
Ceja, 229 P.3d 995, 998–99 (Cal. 2010).
UNITED STATES V. FLORES 13
1115 (Okla. Crim. App. 1935) (“It is not necessary to prove
that the accused knew from whom the property was stolen, or
who stole it, or the circumstances under which it was
stolen.”).
Because we conclude that the term “including” in the INA
is ambiguous, we must turn to the familiar Chevron
framework, where, as here, the Board of Immigration
Appeals’ (“BIA” or “Board”) has previously interpreted the
term “including” within 8 U.S.C. § 1101(a)(43)(G). See, e.g.,
Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1160 (9th Cir.
2011). Under Chevron, we must defer to the precedential
opinions of the BIA interpreting the term so long as the
interpretation is based on a permissible construction of the
statute. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815
(9th Cir. 2016).
In Matter of Alday-Dominguez, 27 I. & N. Dec. 48 (B.I.A.
2017), the BIA definitively interpreted the term “including”
within the meaning of section 1101(a)(43)(G), squarely
holding that “the receipt of stolen property provision in
[section 1101(a)(43)(G)] does not require that [the]
unlawfully received property be obtained by means of
theft.”11 Id. at 49. The BIA reasoned that, rather than saying
“receipt of property obtained by theft,” the statute simply
reads “receipt of stolen property,” thus not limiting it to the
generic federal definition of theft. Id. at 50. Furthermore,
section 1101(a)(43)(G) is not the only entry within
1101(a)(43)’s list of aggravated felonies that uses the word
“including” “to cover a broader range of offenses than those
11
In Verdugo-Gonzalez we did not directly address the question of
whether the crime of receipt of stolen property required that the property
be obtained by means of theft. See Verdugo-Gonzalez, 581 F.3d at 1061.
14 UNITED STATES V. FLORES
previously referenced.” Id. at 51 n.7 (discussing section
1101(a)(43)(B)). The Board also noted that the Supreme
Court has held in a different context that the term “stolen”
“should . . . be interpreted broadly as including offenses of
embezzlement, false pretenses, and any other felonious
takings.” Id. at 50–51 (citing United States v. Turley,
352 U.S. 407, 415–15 (1957)).
The BIA also relied heavily on its 2009 decision in Matter
of Cardiel-Guerrero, 25 I. & N. Dec. 12 (B.I.A. 2009), where
the Board concluded that “‘receipt of stolen property’ is not
merely a subset of ‘theft’ as that term is used in [section
1101(a)(43)(G)].” Id. at 14. The Board in Cardiel reasoned
that (1) in a significant number of jurisdictions, an offender
cannot be convicted of both theft and receipt of the same
stolen property; (2) many states do not include an element of
theft in their receipt of stolen property statutes; and (3) if
receipt of stolen property within section 1101(a)(43)(G) is
merely a subset of the generic theft offense, then the phrase
“receipt of stolen property” in that section would be mere
surplusage. Id. Other precedential BIA opinions have also
treated “receipt of stolen property” as a separate, independent
aggravated felony. Cf. In Re Bahta, 22 I. & N. Dec. 1381,
1391 (B.I.A. 2000) (“We conclude that the reference to
‘receipt of stolen property’ in [section 1101(a)(43)(G)] of the
Act was intended in a generic sense to include the category of
offenses involving knowing receipt, possession, or retention
of property from its rightful owner.”). And, as the Board later
observed in Matter of Deang, 27 I. & N. Dec. 57 (B.I.A.
2017):
[A] necessary element of a receipt of stolen
property offense is an intent to deprive the
owner of his or her property. We observe that
UNITED STATES V. FLORES 15
this shared element is likely responsible for
Congress’ decision to group within [section
1101(a)(43)(G)] the aggravated felonies of
theft and receipt of stolen property, which
otherwise contain several nonmatching
features and constitute distinct and separate
offenses.
Id. at 59.
We defer to the BIA’s permissible, reasonable
construction of the term “including.” Therefore, “receipt of
stolen property” is a distinct aggravated felony independent
of theft and the property received need not have been stolen
by means of “theft” as generically defined.
2. Generic Receipt of Stolen Property
“To determine the elements of a federal generic crime, we
must first consider whether Congress provided any specific
guidance.” Trung Thanh Hoang, 641 F.3d at 1160 (citation
omitted). While there are various federal criminal provisions
relating to theft and stolen property, which are principally
included in Chapter 31 (“Embezzlement and Theft”) and
Chapter 113 (“Stolen Property”) of Title 18 of the United
States Code, they enumerate specific instances of receipt of
stolen property but none “clearly set[s] forth the elements” of
a generic federal crime. See id. Nor does section
1101(a)(43)(G) or the remainder of the INA provide a generic
definition of receipt of stolen property. See id. Therefore, we
must determine whether the BIA, which is charged with
implementing the INA, has interpreted the term and, if so, we
must defer to the BIA’s interpretation of generic receipt of
16 UNITED STATES V. FLORES
stolen property within the INA, if it is reasonable.12 Id.; see
also Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9th
Cir. 2008).
BIA decisions define “receipt of stolen property” as
having the following elements: (1) receipt, possession,
concealment, or retention of property, (2) knowledge or belief
that the property has been stolen, and (3) intent to deprive the
owner of his property. Matter of Deang, 27 I. & N. Dec. 57,
59–63 (B.I.A. 2017); Matter of Cardiel-Guerrero, 25 I. & N.
Dec. 12, 16 (B.I.A. 2009); In Re Bahta, 22 I. & N. Dec. at
1384–91. A mens rea equivalent to the presence of a reason
to believe that the property had been stolen is insufficient.
Matter of Deang, 27 I. & N. Dec. at 59–63; Matter of
Cardiel-Guerrero, 25 I. & N. Dec. at 24–25. Intent to
deprive can be inferred from knowledge that the property was
stolen. See Matter of Sierra, 26 I. & N. Dec. 288, 291 (B.I.A.
2014) (relying on Randhawa v. Ashcroft, 298 F.3d 1148, 1154
(9th Cir. 2002)). The generic offense also includes aiding the
receipt of stolen property as a second-degree principal.13
12
Deference is appropriate here because the BIA’s reasoning in the
precedential opinions discussed below properly adheres to the INA’s text
and draws on state criminal codes to glean the “the generic sense in
which” receipt of stolen property is “used in the criminal codes of most
States.” Taylor v. United States, 495 U.S. 575, 598 (1990); cf. Martinez-
Cedillo v. Sessions, 896 F.3d 979, 1005–06 (9th Cir. 2018) (Wardlaw, J.,
dissenting). Furthermore, the BIA’s decision is stable and specific. Cf.
Valenzuela Gallardo v. Lynch, 818 F.3d 808, 813–15, 819–22 (9th Cir.
2016) (refusing to defer to the BIA’s definition of “relating to obstruction
of justice” which had repeatedly changed and used an amorphous phrase).
13
The generic federal offenses in section 1101(a)(43) do not include
after the fact accessories. See United States v. Vidal, 504 F.3d 1072,
1077–80 (9th Cir. 2007) (en banc); United States v. Arriaga-Pinon,
852 F.3d 1195, 1199 (9th Cir. 2017). That is not relevant to “receipt of
UNITED STATES V. FLORES 17
Matter of Cardiel-Guerrero, 25 I. & N. Dec. at 17; see also
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189–90 (2007)
(holding that the generic “theft offense” in section
1101(a)(43)(G) includes second-degree principals and
accessories before the fact).
In Matter of Alday-Dominguez, the BIA concluded that
the receipt of stolen property “is not limited to receipt
offenses in which the property was obtained by means of
theft.” Matter of Alday-Dominguez, 27 I. & N. Dec. at 51;
see also id. at 51 n.6 (describing survey of state law
indicating that “most jurisdictions broadly define ‘stolen’
beyond the common law offenses of theft and larceny to
include property obtained by unlawful means such as
robbery, extortion, coercion, burglary, false pretenses, deceit,
embezzlement, and other illegal conduct.”). The BIA
reasoned from the Supreme Court’s decision in Turley, in
which the Court broadly interpreted the term “stolen” in the
National Motor Vehicle Theft Act, 18 U.S.C. § 2312
(criminalizing transport of stolen motor vehicles and aircraft)
to mean any felonious taking, including false pretenses.
Turley, 352 U.S. at 416–17 (“[A]n automobile is no less
‘stolen’ because it is rented . . . and sold without the
permission of the owner (embezzlement). The same is true
where an automobile is purchased with a worthless check . . .
and sold (false pretenses). Professional thieves resort to
innumerable forms of theft.”).
stolen property,” however, because it is a continuing crime encompassing
possession, concealment, and retention. See also Verdugo-Gonzalez,
581 F.3d at 1061–62 (holding that section 496(a) does not extend to
accessories after the fact).
18 UNITED STATES V. FLORES
The BIA’s reasonable interpretation of the elements of
generic receipt of stolen property is a categorical match to the
elements of that crime in California Penal Code section
496(a). To secure a conviction under section 496(a), the
government must prove these elements: (1) stolen property;
(2) knowledge that the property was stolen; and
(3) possession, purchase, receipt, concealment, sale, or
withholding of the stolen property. Cal. Penal Code § 496(a);
People v. King, 96 Cal. Rptr. 2d 817, 819–20 (Ct. App.
2000); People v. Stuart, 77 Cal. Rptr. 531, 533 (Ct. App.
1969); see Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th
Cir. 2009). The statute extends to those who aid in the action
but it “does not cover someone whose role was limited to that
of an accessory after the fact.” Alvarez-Reynaga v. Holder,
596 F.3d 534, 537 (9th Cir. 2010). The mens rea element
requires actual knowledge of or belief that the property is
stolen. People v. Tessman, 168 Cal. Rptr. 3d 29, 35 (Ct. App.
2014). Pursuant to California Penal Code sections 484(a) and
490a, “stolen” includes taking, carrying, leading, driving
away, fraudulently appropriating, defrauding, and false
pretenses. See Bell, 151 Cal. Rptr. 3d at 551.
California’s “stolen property” element does not preclude
a categorical match. California courts have squarely held that
it is unnecessary for the property to have been actually stolen,
but rather that the perpetrator believes it to be stolen,
matching the generic federal offense’s “actual knowledge or
belief” requirement. See, e.g., People v. Moss, 127 Cal. Rptr.
454, 455–56 (Ct. App. 1976).
Nor does the generic federal offense’s “intent to deprive”
element, which is not an independent element of the
California offense, preclude a categorical match. We have
previously held that the act of buying or receiving stolen
UNITED STATES V. FLORES 19
property, knowing it was stolen inherently “entails . . . the
intent to deprive the owner of rights and benefits of
ownership.” Verdugo-Gonzalez, 581 F.3d at 1061; see
Castillo-Cruz, 581 F.3d at 1161 (acknowledging an intent for
at least temporary deprivation in section 496(a)); Matter of
Cardiel-Guerrero, 25 I. & N. Dec. at 24–25 (examining
California law and concluding that even though section
496(a) lacks an explicit intent requirement, California
requires a general criminal intent to at least temporarily
deprive the owner of their property).
Flores was properly deported in 2002: conviction for
receipt of stolen property, along with a sentence of more than
one year of imprisonment,14 is categorically an aggravated
14
As we have previously recognized, California Penal Code section
496(a) is a “wobbler,” an offense punishable as either a misdemeanor or
a felony. United States v. Hernandez-Mejia, 292 F. App’x 681, 682 (9th
Cir. 2008); see Ewing v. California, 538 U.S. 11, 16 (2003) (O’Connor,
J., joined by Rehnquist, C.J., and Kennedy, J.). “Under California law, a
‘wobbler’ is presumptively a felony and ‘remains a felony except when
the discretion is actually exercised’ to make the crime a misdemeanor.”
Ewing, 538 U.S. at 16–17 (quoting People v. Williams, 163 P.2d 692, 696
(Cal. 1945)). The fact that receipt of stolen property under California law
can result in a sentence below section 1101(a)(43)(G)’s one year threshold
does not negate our conclusion that section 496(a) is a categorical match
for “receipt of stolen property” in section 1101(a)(43)(G). Renteria-
Morales, 551 F.3d at 1083 (“[A] sentence authorized by or subsequently
imposed for a criminal offense is not an element of [a section 1101(a)(43)]
offense.”)
There is no evidence such discretion was exercised here and, in fact,
Flores was sentenced to a two-year term of imprisonment, satisfying
8 U.S.C. § 1101(a)(43)(G)’s one year requirement. See Alberto-Gonzalez
v. INS, 215 F.3d 906, 909–10 (9th Cir. 2000) (holding that “for which the
term of imprisonment [is] at least one year” refers to actual sentence).
20 UNITED STATES V. FLORES
felony.15 As that deportation was not fundamentally unfair,
8 U.S.C. § 1326(d)(3), it was a proper basis for Flores’s
illegal reentry conviction under 8 U.S.C. § 1326(a).16
B. Due Process
Flores also contends that his 2009 expedited removal
proceeding violated his due process rights. Expedited
removal proceedings must comport with the due process
rights to notice and an opportunity to respond. See Raya-
Vaca, 771 F.3d at 1203–05. However, here, we need not
determine whether Flores’s due process rights were violated
and to what extent, if any, the typographical page numbering
on the removal paperwork supports such a finding. Cf. id. at
1205 (page number discrepancy supported existence of due
process violation). Even assuming a due process violation,
Flores must “establish that he suffered prejudice as a result of
the entry of the order.” Id. at 1206. To demonstrate
prejudice, Flores must show that he had “plausible grounds
for relief” from the removal order, that is, more than a
theoretical possibility of relief. Id. at 1205–07.
Flores contends that he had plausible grounds for relief
from removal in the form of withdrawal of his application for
admission. See 8 U.S.C § 1225(a)(4). If he had been granted
leave to withdraw his admission application, he would have
been allowed to leave the United States voluntarily, escaping
15
For this reason, we need not reach questions of divisibility or resort
to the modified categorical approach.
16
Because Flores’s conviction was for an aggravated felony, to the
extent he challenges the eight-level increase in his offense level under
U.S.S.G. § 2L1.2(b)(1)(C), his argument is unavailing.
UNITED STATES V. FLORES 21
the harsh consequences that result from a removal order.
8 C.F.R. § 1235.4. To determine whether an alien could have
received relief from removal by withdrawing his application,
we look first to the factors that the agency must consider in
exercising its discretion to grant relief, and second, in light of
those factors, and based on the unique circumstances of
Flores’s case, we determine whether it was plausible that
Flores would have been granted relief. United States v.
Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013).
To evaluate the factors relevant to the immigration
officer’s decision, our cases have turned to the Inspector’s
Field Manual for guidance, as it provides direction to field
officers who must determine whether to grant relief. United
States v. Barajas-Alvarado, 655 F.3d 1077, 1090 & n.16 (9th
Cir. 2011); see also Raya-Vaca, 771 F.3d at 1206–07. While
the Inspector’s Field Manual instructs officers to consider
all relevant facts and circumstances “to determine
whether permitting withdrawal would be in the best
interest of justice,” Raya-Vaca, 771 F.3d at 1207 (quoting
Inspector’s Field Manual § 17.2(a) (2007), available at 2007
WL 7710869), it also enumerates six specific considerations:
“(1) the seriousness of the immigration violation; (2) previous
findings of inadmissibility against the alien; (3) intent on the
part of the alien to violate the law; (4) ability to easily
overcome the ground of inadmissibility; (5) age or poor
health of the alien; and (6) other humanitarian or public
interest considerations,” Barajas-Alvarado, 655 F.3d at 1090
(citing Inspector’s Field Manual § 17.2(a)). Application of
these nonexhaustive factors involves a highly individualized
determination. Raya-Vaca, 771 F.3d at 1207. However, the
manual also instructs that withdrawal should “ordinarily” not
be permitted “in situations where there is obvious, deliberate
fraud on the part of the applicant,” such as the use of
22 UNITED STATES V. FLORES
counterfeit documents. Id. (quoting Inspector’s Field Manual
§ 17.2(a)).
Flores concedes the obvious: the first five enumerated
factors weigh heavily against an exercise of discretion to
grant him the relief of withdrawal. He presented a counterfeit
I-551 at the San Ysidro port of entry. That, combined with
the fact that Flores’s 2009 entry was at least his fourth
unlawful entry in seven years, makes his immigration
violation particularly serious. See Raya-Vaca, 771 F.3d at
1208 & n.12; Barajas-Alvarado, 655 F.3d at 1090. Flores’s
prior unlawful entries and use of counterfeit documents
demonstrate his intent to violate the law. Raya-Vaca,
771 F.3d at 1208; Barajas-Alvarado, 655 F.3d at 1090. Even
though Flores was married to a United States citizen, his
immigration violations, combined with his extensive criminal
history, which includes numerous felony convictions, are a
virtually insurmountable block to any basis for
admissibility.17 Raya-Vaca, 771 F.3d at 1208 & n.13;
Barajas-Alvarado, 655 F.3d at 1090. And in 2009, Flores
was 31 years old and there is no indication that he was in
poor health. Raya-Vaca, 771 F.3d at 1208 (same for thirty-
three year old in apparent good health); Barajas-Alvarado,
655 F.3d at 1090 (holding that factor weighed against relief
for thirty-five year old with no evidence of poor health).
As to the sixth factor, humanitarian or public interest
concerns, Flores places great emphasis on the humanitarian
component of this factor, highlighting the fact of his
residence in the Los Angeles area since age five (that is,
17
Indeed, Flores’s 2001 convictions for receipt of stolen property
render him deportable as an aggravated felon, as we have described
earlier.
UNITED STATES V. FLORES 23
while he was in the US and not incarcerated), that he speaks
English fluently, had obtained vocational training, and has
supported his wife, three young children, his sister, and his
mother, while being a primary caregiver for his middle
daughter who suffers from autism. The government counters
with public interest concerns, arguing that Flores’s
“egregious” criminal record going back twelve years and
including multiple theft and burglary offenses and a firearms
conviction outweighs Flores’s assorted humanitarian
considerations.
Consideration of the unique humanitarian and public
interest concerns related to Flores’s circumstances leads us to
conclude that this factor also weighs against the plausibility
of an immigration officer’s grant of withdrawal. Flores’s
circumstances mirror those in Barajas-Alvarado, in which we
determined relief was implausible, much more closely than
those in Raya-Vaca, in which we found the plausibility of
relief. In Raya-Vaca, the “other humanitarian or public
interest concerns” weighed significantly in Raya’s favor
because his partner, their children, and his mother, siblings,
and much of his extended family lived in the United States
and his criminal history was “fairly minimal,” comprising
three misdemeanors resulting in thirteen days in jail. Raya-
Vaca, 771 F.3d at 1198–99, 1208–09. By contrast, despite
Barajas’s Los Angeles family (parents, ten siblings, two
children, and partner), we stated that he had “no humanitarian
or public interest considerations weighing in his favor.”
Barajas-Alvarado, 655 F.3d at 1080, 1090; see Brief of
Appellant, United States v. Barajas-Alvarado, No. 10-50134,
2010 WL 6762749 at *4 (9th Cir. Sept. 13, 2010). Moreover,
Barajas’s criminal history was significantly less serious than
Flores’s. He had only two prior convictions, one over twenty
years earlier for transportation and sale of marijuana resulting
24 UNITED STATES V. FLORES
in sixty days in jail and the other seven years earlier for being
a deported alien found in the United States, resulting in
twenty-one months imprisonment. Barajas-Alvarado,
655 F.3d at 1080 n.3. And, unlike Raya, but like Barajas,
Flores committed immigration fraud. Compare id. at 1080
with Raya-Vaca, 771 F.3d at 1210.
Flores relies on two comparator cases and statistics to
support his argument that leave to withdraw his admission
application plausibly would have been granted, despite his
use of fraudulent documents, i.e., the counterfeit
identification he attempted to use for admission. But in the
first comparator case, the petitioner, Jose Carlos Garcia-
Gonzalez, did not have a criminal history nearly as serious as
Flores18 and had been deported only once before. The
second, that of Omar Argueta-Rosales, omits details of his
criminal history and indicates only at least two prior
deportations. Both these cases involved fraud, a circumstance
where relief is ordinarily not available. But otherwise, those
cases do not present circumstances analogous to Flores’s
situation, given Flores’s significantly more serious criminal
history and his more numerous, repeated deportations. As for
the statistics, the evidence Flores presents demonstrates that
in 2013, 9,387 individuals with fraudulent documents were
subject to expedited removal. Only three were allowed to
withdraw their admission application in lieu of expedited
18
Garcia was convicted of vehicle theft in May 2005 and then of
being a felon in possession of a firearm in July 2005. For the first offense
he received a 180 day suspended sentence and the second resulted in
sixteen months in prison. He withdrew his application in 2009.
UNITED STATES V. FLORES 25
removal.19 Even were we to extrapolate from 2013 to 2009,
the vanishingly small number of individuals comparable to
Flores who were allowed to withdraw in lieu of expedited
removal demonstrates the implausibility of him receiving that
relief.
C. Admission of the Fingerprint Expert’s Testimony
Conviction under 8 U.S.C. § 1326 requires the
government to prove that a defendant had previously been
deported. United States v. Castillo-Basa, 483 F.3d 890, 898
(9th Cir. 2007). The government must demonstrate “(1) that
a deportation proceeding occurred as to the defendant and as
a result, (2) a warrant of deportation was issued and
(3) executed by the removal of the defendant from the United
States.” Id. To meet this burden here, the government relied
on the testimony of David Beers, a fingerprint expert, who
identified Flores by his fingerprints as the subject of an Alien
file (“A-file”) whose documents were offered to prove a 2014
deportation and removal.
Flores moved in limine under Federal Rule of Evidence
702 and Daubert20 to preclude Beers from testifying. He
19
Flores claims that the relevant percentage is 13.4%. But his
calculation compares the total number of individuals subject to expedited
removal to the total number who were allowed to withdraw, rather than
the more pertinent comparison, the subset of aliens presenting fraudulent
documents compared to those who were allowed to withdraw in lieu of
expedited removal.
20
Expert opinion testimony must be the product of “reliable principles
and methods . . . reliably applied . . . to the facts of the case.” Fed. R.
Evid. 702. The expert must have “a reliable basis in the knowledge and
experience of the relevant discipline.” Kumho Tire Co. v. Carmichael,
26 UNITED STATES V. FLORES
contended that “the government could not show Beers was
adhering to contemporary professional practices in his field,
or that his work was reliable, tested, or subject to peer
review.” Flores presented evidence that Beers failed to
consult with other professionals, had taken no certification
test in forty years, had no verification of his work done in this
case, and had no regular continuing education in the field.
The government responded that Beers had over 25 years’
experience in fingerprint comparison, had worked as a
Federal Bureau of Investigation fingerprint technician, and
had been qualified as an expert in federal and state court more
than thirty times. The district court denied Flores’s motion
based on its familiarity with Beers’s expertise, testimony,
background, and methodology.
At trial, Beers testified over Flores’s renewed objections,
and Flores was allowed extensive cross-examination as to his
reliability as an expert. In his findings of Flores’s guilt, the
district court found Beers qualified and credible.
We disagree with Flores’s argument that by admitting
Beers’s testimony the district court abdicated its gatekeeping
function and thereby abused its discretion.21 See Estate of
526 U.S. 137, 149 (1999) (citation omitted and alterations incorporated).
“[E]videntiary reliability [is] based upon scientific validity.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 590 n.9 (1993).
21
Flores’s additional argument that the district court erred by refusing
to consider evidentiary materials submitted the night before the trial is
unavailing. Flores had adequate notice that the court would accept such
material only up until one day before trial, yet he submitted the material
late. And even if this were error it was harmless: the documents Flores
wanted to submit were incorporated into his cross-examination of Beers,
which was the purpose of submitting the evidence in the first place.
UNITED STATES V. FLORES 27
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir.
2014) (en banc). Flores waived his right to a jury trial and
was convicted after a bench trial. “Daubert is meant to
protect juries from being swayed by dubious scientific
testimony. When the district court sits as the finder of fact,
there is less need for the gatekeeper to keep the gate when the
gatekeeper is keeping the gate only for himself.” David E.
Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir.
2012) (quotations omitted) (emphasis in original); see also
FTC v. BurnLounge, Inc., 753 F.3d 878, 888 (9th Cir. 2014)
(“When we consider the admissibility of expert testimony, we
are mindful that there is less danger that a trial court will be
unduly impressed by the expert’s testimony or opinion in a
bench trial.” (quotation omitted)); United States v. Brown,
415 F.3d 1257, 1268–69 (11th Cir. 2005) (Daubert “barriers
are even more relaxed in a bench trial situation.”); Deal v.
Hamilton Cty. Bd. of Educ., 392 F.3d 840, 852 (6th Cir. 2004)
(“The ‘gatekeeper’ doctrine was designed to protect juries
and is largely irrelevant in the context of a bench trial.”). In
bench trials, the district court is able to “make its reliability
determination during, rather than in advance of, trial. Thus,
where the factfinder and the gatekeeper are the same, the
court does not err in admitting the evidence subject to the
ability later to exclude it or disregard it if it turns out not to
meet the standard of reliability established by Rule 702.” In
re Salem, 465 F.3d 767, 777 (7th Cir. 2006).
This is exactly what the district court properly did here,
making an explicit finding regarding the scientific validity of
Beers’s testimony. See Barabin, 740 F.3d at 464 (requiring
courts to make findings regarding the scientific validity or
methodology of an expert opinion before admitting it). The
district court identified and applied Daubert explicitly in the
proceeding on Flores’s motion in limine, and every time
28 UNITED STATES V. FLORES
Flores objected the district court mentioned or at least alluded
to the relevant factors, and even reiterated its finding as to
Beers’s qualifications in its verdict.
Moreover, fingerprinting is far from junk science—it can
be tested and peer reviewed and is generally accepted by the
relevant scientific community. See United States v.
Calderon-Segura, 512 F.3d 1104, 1109 (9th Cir. 2008)
(“[F]ingerprint identification methods have been tested in the
adversarial system for roughly a hundred years.”). The
combination of such a well-established practice and the bench
trial render the district court’s statements sufficient under
Barabin.22 See Lopez v. Brewer, 680 F.3d 1068, 1072–73
(9th Cir. 2012) (engaging with the relevant factors, even
briefly, is sufficient).
IV.
For the reasons set forth above, we AFFIRM Flores’s
conviction.
22
We refuse to hold, as Flores urges, that a district court abuses its
discretion in a bench trial when it admits expert testimony based on
methodologies that differ from the standards that the federal government
or fingerprinting trade organizations desire. Doing so would hamstring
the discretion and flexible inquiry that are at the core of Rule 702.