United States v. Rigoberto Hernandez-Rivera , 362 F. App'x 647 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50151
Plaintiff - Appellee, D.C. No. 3:08-CR-00719-L-1
v.
MEMORANDUM *
RIGOBERTO HERNANDEZ-RIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted December 8, 2009
Pasadena, California
Before: REINHARDT, TROTT, and WARDLAW, Circuit Judges.
Rigoberto Hernandez-Rivera, a native and citizen of Mexico, appeals the
district court’s denial of his motion to dismiss the indictment, which was based on
an allegedly invalid order of deportation; and the district court’s determination that
a conviction for attempted sodomy under California Penal Code §§ 664 and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
286(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part,
vacate in part, and remand for further proceedings.
The district court properly denied the motion to dismiss the indictment
because Hernandez-Rivera failed to demonstrate he had a plausible basis for
seeking pre-conclusion voluntary departure, adjustment of status, or relief under
the Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). See
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (requiring
prejudice to sustain a collateral attack on an underlying deportation order); United
States v. Pallares-Galan, 359 F.3d 1088, 1103 (9th Cir. 2004) (“To prove
prejudice, [a petitioner] . . . must show . . . he had a ‘plausible’ basis for seeking
relief from deportation.”); 8 C.F.R. § 212.7(d) (stating that INA § 212(h) relief will
not be granted in cases involving violent or dangerous crimes unless the alien
clearly demonstrates exceptional and extremely unusual hardship).
However, with respect to Hernandez-Rivera’s sentence, we conclude that
attempted sodomy under California Penal Code §§ 664 and 286(c)(2) is not a
categorical “crime of violence” under U.S.S.G. § 2L1.2 because the state statutes
do not require the use of physical force beyond that inherent to penetration, nor do
they require the use, attempted use, or threatened use of violent physical force. See
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U.S.S.G. § 2L1.2, cmt. 1(B)(iii)); United States v. Bolanos-Hernandez, 492 F.3d
1140, 1145–46 (9th Cir. 2007) (holding that forcible sex offenses require more
physical force than that inherent to penetration, but that under the catch-all
provision, the force used “‘must actually be violent in nature’”). Accordingly, we
vacate Hernandez-Rivera’s sentence and remand to the district court on an open
record to allow it to apply the modified categorical approach in the first instance.
See United States v. Grisel, 488 F.3d 844, 852 (9th Cir. 2007) (en banc) (finding
remand for resentencing on an open record appropriate when the district court has
erred in applying a categorical inquiry).
AFFIRMED in part; VACATED in part; and REMANDED for further
proceedings.
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