United States v. Armando Cabrera-Perez , 751 F.3d 1000 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50148
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-03248-BTM-1
ARMANDO CABRERA-PEREZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
March 6, 2014—Pasadena, California
Filed May 9, 2014
Before: Jay S. Bybee, Carlos T. Bea, and Sandra S. Ikuta,
Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. CABRERA-PEREZ
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a motion
to dismiss an indictment charging attempted entry after
deportation.
The panel held that the district court did not err in
applying the modified categorical approach – based on the
direct complaint, the plea agreement, and the transcript of the
plea colloquy – to conclude that the defendant’s conviction
for aggravated assault, under Arizona Revised Statutes § 13-
1203(A)(2) and § 13-1204(A)(2), constitutes a “crime of
violence” under the Immigration and Nationality Act
§ 101(a)(43) and 18 U.S.C. § 16, and that the defendant
therefore suffered no prejudice from the immigration judge’s
alleged failure to advise him of his potential eligibility for
voluntary departure.
COUNSEL
Knut S. Johnson, San Diego, California, for Defendant-
Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter
and Jill L. Burkhardt, Assistant United States Attorneys, San
Diego, California, for Plaintiff-Appellee.
*
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. CABRERA-PEREZ 3
OPINION
BEA, Circuit Judge:
This case requires us to determine whether the crime of
aggravated assault, under Arizona Revised Statutes
(“A.R.S.”) § 13-1203(A)(2) and § 13-1204(A)(2), constitutes
a “crime of violence” under the Immigration and Nationality
Act (“I.N.A.”) § 101(a)(43)(F) and 18 U.S.C. § 16, such that
an individual convicted under those Arizona statutes would
be ineligible for voluntary departure under 8 C.F.R.
§ 1240.26(b)(1)(i)(E). Applying the modified categorical
approach, we hold that Defendant-Appellant Armando
Cabrera-Perez’s conviction for aggravated assault under
A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2) constitutes such
a “crime of violence.” As a result, Cabrera-Perez was not
eligible for voluntary departure at his February 9, 2005
immigration hearing. Accordingly, Cabrera-Perez’s attempt
to attack collaterally the deportation order underlying his
illegal reentry conviction because he was not adequately
advised of the voluntary departure remedy fails.1
Background
In 2004, Cabrera-Perez was charged by the state of
Arizona’s direct complaint with aggravated assault under
A.R.S. § 13-1203 and § 13-1204. Count 3 stated:
Armando Cabrera Perez . . . , on or about the
26th day of October, 2003, using a handgun,
a deadly weapon or dangerous instrument,
1
We address other issues raised in this appeal in a concurrently filed
memorandum disposition.
4 UNITED STATES V. CABRERA-PEREZ
intentionally placed [his victim] in reasonable
apprehension of imminent physical injury, in
violation of [A.R.S] § 13-1203, 13-1204 . . . .
Count 4 stated the same but named a different victim. On
April 2, 2004, Cabrera-Perez executed a plea agreement in
which he “agree[d] to plead guilty to: Counts 3 and 4” of the
direct complaint. Two days later, at his change of plea
hearing, the state trial court confirmed that Cabrera-Perez
intended to plead guilty to Counts 3 and 4, as described in the
plea agreement. As to the factual basis for the plea, Cabrera-
Perez’s attorney stated:
On October 26th, 2003 . . . [Cabrera-Perez]
had a gun and he fired the weapon in the
general vicinity of [the two victims], and they
were, in fact, afraid for their safety.
The court accepted Cabrera-Perez’s guilty plea “to the
charges as set forth in the plea agreement” and sentenced him
to twelve months’ incarceration and four years of probation.
On May 4, 2004, the court suspended the imposition of the
sentence and placed Cabrera-Perez on probation for four
years.
On January 26, 2005, the Immigration and Naturalization
Service issued Cabrera-Perez a Notice to Appear, which
notice charged that Cabrera-Perez was subject to removal as
“an alien present in the United States without being admitted
or paroled,” I.N.A. § 212(a)(6)(A)(i), and as an “alien who
has been convicted of . . . a crime involving moral turpitude,”
I.N.A. § 212(a)(2)(A)(i)(I). On February 9, 2005, Cabrera-
Perez appeared at his immigration hearing. When the
Immigration Judge (“IJ”) addressed Cabrera-Perez
UNITED STATES V. CABRERA-PEREZ 5
individually, Cabrera-Perez admitted that he had entered the
U.S. illegally in November 2003 and that he was convicted in
2004 for aggravated assault. Cabrera-Perez agreed that both
of these admissions were “correct reasons [for him] to be
removed from the United States.” The IJ then stated:
Based on your testimony and review of the
statute I find that each of the separate
components of the aggravated assault statute
to be a crime involving moral turpitude.
Based on the felony designation I find you are
subject to be removed. What country do you
want to be deported to?
Cabrera-Perez responded, “Mexico.”
The IJ confirmed that Cabrera-Perez had “seven dollars
for voluntary departure,” and then asked, “Do you want your
case postponed for voluntary departure or do you want the
case ended today?” Cabrera-Perez responded, “End it today.”
The IJ then stated, “You are not eligible to be in the United
States based on the facts of your case, voluntary return was
explained in your presence. . . . It is ordered that you are to
leave the United States to Mexico . . . .” Cabrera-Perez stated
that he understood this decision and that he waived his right
to file an appeal. The IJ signed an order which stated that
Cabrera-Perez “was ordered removed from the United States
to Mexico.” That same day, Cabrera-Perez was deported to
Mexico.
On May 8, 2011, Cabrera-Perez attempted to reenter the
United States at the San Ysidro Port of Entry. Cabrera-Perez
presented a photocopy of a birth certificate and a California
identification card, both bearing the name of another
6 UNITED STATES V. CABRERA-PEREZ
individual, to the Customs and Border Protection (“CBP”)
Officer. The CBP officer noted that Cabrera-Perez did not
appear to be the person in the photograph on the identification
card, and escorted Cabrera-Perez to the Port Enforcement
Team inspection area, where another officer took Cabrera-
Perez’s fingerprint and determined his true identity.
On July 27, 2011, the government indicted Cabrera-Perez
on a single count of attempted entry after deportation
pursuant to 8 U.S.C. § 1326(a) and (b). The government filed
a superseding indictment on August 3, 2011, adding one
count of aggravated identity theft under 18 U.S.C. § 1028A.
Two days later, Cabrera-Perez pleaded not guilty.
On September 12, 2011, Cabrera-Perez filed a motion to
dismiss the superseding indictment, claiming that the
underlying removal order was invalid because the IJ failed to
adequately advise him of his eligibility for voluntary
departure during the removal proceedings in 2005.2 The
district court agreed with the government that Cabrera-Perez
“suffered no prejudice from the IJ’s alleged failure to advise
[Cabrera-Perez] of his eligibility for voluntary departure
because [Cabrera-Perez’s] prior Arizona felony convictions
[for aggravated assault under A.R.S. § 13-1203 and § 13-
1204] rendered him ineligible for such relief,” as those
convictions constituted “crime[s] of violence” within the
meaning of I.N.A. § 101(a)(43)(F) and 18 U.S.C. § 16. As a
2
Cabrera-Perez also argued that the substance of the removal
proceedings established that he was in fact voluntarily departed, rather
than removed from the U.S. in 2005. The district court rejected this
argument “[g]iven the undisputed existence of a signed removal order.”
The jury also determined that “the government ha[d] proved beyond a
reasonable doubt that [Cabrera-Perez] was deported and removed from the
United States on February 9, 2005.”
UNITED STATES V. CABRERA-PEREZ 7
result, the district court denied Cabrera-Perez’s motion to
dismiss the superseding indictment.
After a four day trial, on December 2, 2011, the jury
returned guilty verdicts on both the illegal reentry count and
the identity theft count. On March 18, 2013, the district court
held a sentencing hearing. The district court granted Cabrera-
Perez a downward variance of 40 months from the low end of
the Sentencing Guidelines range, resulting in a 70 month
sentence on the illegal reentry count. In addition, the district
court sentenced Cabrera-Perez to a consecutive 24 months for
the identity theft count, resulting in a total sentence of 94
months, to be followed by three years of supervised release.
Standard of Review
This Court 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 the
underlying deportation proceeding. United States v. Ramos,
623 F.3d 672, 679–80 (9th Cir. 2010).
Analysis
A defendant charged with illegal reentry in violation of
8 U.S.C. § 1326 may collaterally attack his underlying
deportation order if the defendant demonstrates that: “(1) the
alien exhausted any administrative remedies that may have
been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d). “Fundamental unfairness”
requires (1) a due process violation in removal proceedings
8 UNITED STATES V. CABRERA-PEREZ
and (2) prejudice as a result of the due process violation.
United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir.
2009). Before his trial, Cabrera-Perez sought to attack
collaterally his underlying deportation order by filing a
motion to dismiss the superseding indictment, claiming that
the underlying removal order was invalid because the IJ
failed to adequately advise him of his eligibility for voluntary
departure during the removal proceedings in 2005. In its
order denying Cabrera-Perez’s motion, the district court
concluded that “even if the IJ failed to advise [Cabrera-Perez]
of his right to voluntary removal, there was no prejudice”
because Cabrera-Perez “committed a ‘crime of violence’
within the meaning of Section 101(a)(43)(F) of the I.N.A. and
[was therefore] ineligible for voluntary removal.” On appeal,
Cabrera-Perez argues that the district court erred in its
conclusion that his prior conviction for aggravated assault
from 2004 constituted a “crime of violence.”
8 C.F.R. § 1240.26(b)(1)(i)(E) provides that “[a]n alien
may be granted voluntary departure by an immigration judge
. . . only if the alien . . . [h]as not been convicted of a crime
described in [I.N.A.] section 101(a)(43) . . . .” Section
101(a)(43) includes “crime[s] of violence (as defined in
section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least one
year.” I.N.A. § 101(a)(43)(F). In turn, 18 U.S.C. § 16
defines a “crime of violence” as:
(a) an offense that has an element of the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
UNITED STATES V. CABRERA-PEREZ 9
(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.
The statute under which Cabrera-Perez was convicted,
A.R.S. § 13-1203, provides:
A. A person commits assault by:
1. Intentionally, knowingly or recklessly
causing any physical injury to another person;
or
2. Intentionally placing another person in
reasonable apprehension of imminent physical
injury; or
3. Knowingly touching another person with
the intent to injure, insult or provoke such
person.
A.R.S. § 13-1204(A) provides that a “person commits
aggravated assault if the person commits assault as prescribed
by § 13-1203 under any of the following circumstances: . . .
(2) If the person uses a deadly weapon or dangerous
instrument.”
In determining whether Cabrera-Perez’s conviction under
A.R.S. § 13-1203 and § 13-1204 constituted a “crime of
violence,” the district court correctly employed the two-part
analysis applicable to “divisible statutes,” as described by the
Supreme Court in Descamps v. United States, 133 S. Ct. 2276
10 UNITED STATES V. CABRERA-PEREZ
(2013).3 First, the district court determined that under the
categorical approach, “A.R.S. § 13-1203 in its entirety is not
categorically a ‘crime of violence’ because subpart (A)(1) can
be violated with a mens rea of ‘recklessness,’ and a ‘crime of
violence’ under 18 U.S.C. § 16 requires a mens rea of at least
extreme recklessnesss.” See Fernandez-Ruiz v. Gonzalez,
466 F.3d 1121, 1130 (9th Cir. 2006) (“[N]either recklessness
nor gross negligence is a sufficient mens rea to establish that
a conviction is for a crime of violence under [18 U.S.C.]
§ 16.”). Both parties agree with the district court’s
conclusion in this respect.
Second, the district court applied the modified categorical
approach, under which courts “consult a limited class of
documents[4] . . . to determine which alternative [element]
formed the basis of the defendant’s prior conviction.”
Descamps, 133 S. Ct. at 2281. “The court can then . . .
compare the elements of the crime of conviction (including
the alternative element used in the case) with the elements of
the generic crime.” Id. Both parties agree that the district
court was correct to apply the modified categorical approach.
The parties, however, disagree about the validity of the
district court’s conclusion that under the modified categorical
approach Cabrera-Perez’s crimes of conviction constituted
“crimes of violence.”
3
A “divisible statute . . . sets out one or more elements of the offense in
the alternative.” Descamps, 133 S. Ct. at 2281 (internal quotation marks
omitted).
4
These documents include “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which [the defendant] assented.”
United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir. 2007).
UNITED STATES V. CABRERA-PEREZ 11
In reaching this conclusion, the district court considered
three documents. First, the district court looked at the direct
complaint which charged Cabrera-Perez with aggravated
assault. Counts 3 and 4 of the direct complaint both stated:
Armando Cabrera Perez . . . using a handgun,
a deadly weapon or dangerous instrument,
intentionally placed [the victim] in reasonable
apprehension of imminent physical injury, in
violation of [A.R.S.] § 13-1203, 13-1204 . . . .
The district court noted that Counts 3 and 4 “track the
language” of § 13-1203(A)(2) (“[i]ntentionally placing
another person in reasonable apprehension of imminent
physical injury”) and § 13-1204(A)(2) (use of “a deadly
weapon or other dangerous instrument”). Second, the district
court looked at Cabrera-Perez’s plea agreement, in which he
agreed to plead guilty to Counts 3 and 4 from the direct
complaint. Third, the district court looked at the change of
plea colloquy at which Cabrera-Perez pleaded guilty to
Counts 3 and 4, and Cabrera-Perez’s attorney adopted the
factual basis for the plea.
Based on this record of conviction, the district court
determined that Cabrera-Perez was convicted under subpart
(A)(2) of A.R.S. § 13-1203 and subpart (A)(2) of A.R.S.
§ 13-1204. Finally, the district court concluded that Cabrera-
Perez committed a “crime of violence” because “the Ninth
Circuit has held that convictions under subpart (A)(2) of § 13-
1203 and subpart (A)(2) of § 13-1204 satisfy both alternative
prongs of the test for a ‘crime of violence’ under 18 U.S.C.
§ 16.” See United States v. Ceron-Sanchez, 222 F.3d 1169,
1172–73 (9th Cir. 2000), overruled on other grounds by
Fernandez-Ruiz, 466 F.3d at 1125 n.6.
12 UNITED STATES V. CABRERA-PEREZ
On appeal, Cabrera-Perez first claims that the record of
conviction does not indicate that he was convicted under
subpart (A)(2) of § 13-1203 and subpart (A)(2) of § 13-1204.
He argues that the plea agreement did not state under which
subpart of these statutes he agreed to plead guilty. However,
as the district court correctly noted, Counts 3 and 4 of the
direct complaint track the language of subpart (A)(2) of § 13-
1203 and subpart (A)(2) of § 13-1204 word-for-word.
Moreover, in his plea agreement, Cabrera-Perez agreed to
plead guilty to Counts 3 and 4 in the direct complaint.5
Therefore, applying the modified categorical approach, we
conclude that Cabrera-Perez was convicted under subpart
(A)(2) of A.R.S. § 13-1203 and subpart (A)(2) of A.R.S.
§ 13-1204.6
Second, Cabrera-Perez asserts that “this Circuit [has]
repeatedly held that charging documents [such as the direct
5
The plea agreement stated only that Cabrera-Perez agreed to plead
guilty to “Counts 3 and 4.” The plea agreement did not explicitly
reference the direct complaint. However, Cabrera-Perez does not argue
on appeal that the reference to “Counts 3 and 4” in the plea agreement was
a reference to charges other than in the direct complaint.
6
Cabrera-Perez also argues that “[t]he change of plea colloquy was
completely devoid of evidence [that] Mr. Cabrera-Perez[] admitted that he
intended to cause fear in others when he fired a weapon in the general
vicinity of his neighbors.” (emphasis added). Cabrera-Perez suggests that
the district court therefore should not have concluded that he was
convicted under § 13-1203(A)(2), which requires intentional action.
While Cabrera-Perez is correct that the factual basis adopted by his
counsel at the change of plea colloquy was “devoid of evidence” regarding
Cabrera-Perez’s intent, Counts 3 and 4 of the direct complaint, to which
Cabrera-Perez agreed to plead guilty, stated that Cabrera-Perez
“intentionally placed [his victims] in reasonable apprehension of imminent
physical injury.” Therefore, this argument fails.
UNITED STATES V. CABRERA-PEREZ 13
complaint here] are insufficient alone to prove the facts to
which [a defendant] [has] admitted.” (third alteration in
original) (internal quotation marks omitted). However, in
United States v. Vidal, cited by Cabrera-Perez, the court
rejected the use of Vidal’s charging documents to prove the
facts to which he admitted because the record did not contain
“a transcript of Vidal’s change of plea hearing or any record[]
of the terms of his plea bargain.” 504 F.3d 1072, 1089 (9th
Cir. 2007). By contrast, here, we have: (1) the direct
complaint, (2) the plea agreement, and (3) the transcript of
the change of plea colloquy. And, as the government argues,
“each step in [Cabrera-Perez’s] process of conviction
refer[red] back to Counts 3 and 4 of the [direct complaint],
which [counts] by their charging language allege” that
Cabrera-Perez “intentionally placed [his victims] in
reasonable apprehension of imminent physical injury.”
Therefore, because the complaint is “‘a charging document
that narrows the charge to generic limits,’ the fact that
[Cabrera-Perez] pleaded guilty to th[ese] charge[s]
establishes that he was convicted of [the generic offense].”
United States v. Rivera, 658 F.3d 1073, 1078 (9th Cir. 2011)
(citation omitted).
Finally, Cabrera-Perez takes issue with the district court’s
reliance on Ceron-Sanchez for the proposition that
“convictions under subpart (A)(2) of § 13-1203 and subpart
(A)(2) of § 13-1204 satisfy both alternative prongs of the test
for a ‘crime of violence’ under 18 U.S.C. § 16.” In Ceron-
Sanchez,7 the Ninth Circuit considered whether a conviction
7
Ceron-Sanchez pleaded guilty to attempted aggravated assault with a
deadly weapon in violation of A.R.S. § 13-1204(A)(2). After Ceron-
Sanchez was released from prison, he was deported. Ceron-Sanchez
returned to the United States, was arrested, and was charged with illegal
14 UNITED STATES V. CABRERA-PEREZ
under A.R.S. § 13-1203(A) and § 13-1204(A)(2) constituted
a “crime of violence” under 18 U.S.C. § 16. 222 F.3d at
1172. The court concluded that each of A.R.S. §§ 13-
1203(A)(1), (A)(2), and (A)(3)
requires either the use, attempted use, or
threatened use of force against the person of
another, and by incorporation, a conviction
under [A.R.S.] § 13-1204(A)(2) meets the
definition of crime of violence set out in
18 U.S.C. § 16(a).
Id. at 1173.8
reentry under 8 U.S.C. § 1326. He pleaded guilty, and, at sentencing, the
district court “increased Ceron-Sanchez’s offense level by 16 under
U.S.S.G. § 2L1.2(b)(1)(A) which applies if the defendant previously was
deported after a criminal conviction for an aggravated felony,” as defined
in I.N.A. § 101(a)(43). 222 F.3d at 1171. Under subsection (F) of I.N.A
§ 101(a)(43)—the same provision at issue in the instant case—the term
“aggravated felony” includes a “crime of violence” as defined by
18 U.S.C. § 16. On appeal, Ceron-Sanchez argued that his attempted
aggravated assault conviction did not constitute a “crime of violence”
because that conviction “was based on reckless conduct and, therefore,
[did] not constitute a crime of violence for aggravated felony purposes.”
Id. at 1172. Applying the categorical approach, the Ninth Circuit affirmed
the district court, concluding that “Ceron-Sanchez’s statute of conviction
reaches only conduct that would constitute a crime of violence.” Id. at
1173.
8
The court also concluded that a “conviction under [A.R.S.] § 13-
1204(A)(2) [] satisfies the alternative definition of a crime of violence set
out in 18 U.S.C. § 16(b),” which covers felony convictions which by their
nature “involve[] a substantial risk that physical force . . . may be used
against the person or property of another.” Id. (third alteration in original)
(internal quotation marks omitted).
UNITED STATES V. CABRERA-PEREZ 15
Cabrera-Perez argues that Ceron-Sanchez does not
support the proposition that A.R.S. § 13-1203(A)(2) and § 13-
1204(A)(2) constitute “crimes of violence” in light of our
more recent en banc opinion in Fernandez-Ruiz. However,
while the en banc court in Fernandez-Ruiz did overrule
Ceron-Sanchez, “the specific focus of [the analysis in
Fernandez-Ruiz was] whether the offense defined in [A.R.S.]
§ 13-1203(A)(1) [as opposed to § 13-1203(A)(2)] [was] a
crime of violence under 18 U.S.C. § 16(a).” 466 F.3d at
1125. Indeed, the Fernandez-Ruiz court stated that “because
we ultimately conclude that not all of the conduct proscribed
by [A.R.S.] § 13-1203(A)(1) meets the definition of a crime
of violence, we do not consider [A.R.S.] § 13-1203(A)(2).”
Id. at 1125 n.6.
As a result, the reasoning applied by the Ceron-Sanchez
court to conclude that a violation of A.R.S. § 13-1203(A)(2)
constitutes a “crime of violence” is still valid. In particular,
A.R.S. § 13-1203(A)(2) satisfies the first prong of 18 U.S.C.
§ 16 because “[i]ntentionally placing another person in
reasonable apprehension of imminent physical injury,” A.R.S.
§ 13-1203(A)(2), has as an element “the use, attempted use,
or threatened use of physical force against the person or
property of another,” 18 U.S.C. § 16(a). Unlike in
Fernandez-Ruiz, where the court determined that not all
conduct proscribed by A.R.S. § 13-1203(A)(1) constituted a
“crime of violence” under 18 U.S.C. § 16(a) because
subsection (A)(1) included “reckless” conduct, subsection
(A)(2) proscribes only intentional conduct. 466 F.3d 1132.
We therefore hold that convictions under A.R.S. § 13-
1203(A)(2), and convictions under A.R.S. § 13-1204(A)(2)
which incorporate A.R.S. § 13-1203(A)(2), constitute “crimes
of violence” under 18 U.S.C. § 16.
16 UNITED STATES V. CABRERA-PEREZ
Ultimately, the district court did not err in applying the
modified categorical approach to conclude that Cabrera-
Perez’s crimes of conviction constituted “crimes of violence”
under 18 U.S.C. § 16, such that Cabrera-Perez suffered no
prejudice from the IJ’s alleged failure to advise Cabrera-
Perez of his potential eligibility for voluntary departure. We
therefore affirm the district court in this respect.
Conclusion
For the foregoing reasons, we AFFIRM the district
court’s denial of Cabrera-Perez’s motion to dismiss the
indictment.