United States v. Francisco Rodriguez-Garcia ( 2015 )

FILED
NOT FOR PUBLICATION MAY 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50029
Plaintiff - Appellee, D.C. No. 3:12-cr-04668-GPC-1
v.
MEMORANDUM*
FRANCISCO RODRIGUEZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted April 7, 2015
Pasadena, California
Before: D.W. NELSON, REINHARDT, and M. SMITH, Circuit Judges.
Appellant Francisco Rodriguez-Garcia appeals the denial of a motion to
dismiss his indictment for unlawful reentry of a previously removed alien in
violation of 8 U.S.C.§ 1326(a) and (b). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In 2004, Appellant was convicted of aiding and abetting attempted murder in
violation of California Penal Code § 664-187(a). Appellant was subsequently
removed on the grounds that he was not a United States citizen or legal permanent
resident and had been convicted of attempted murder, an aggravated felony as
defined in 8 U.S.C. § 1101(a)(43)(A, F, U). In 2012, Appellant was found illegally
entering the United States and convicted of unlawful reentry of a previously
removed alien.
Pursuant to 8 U.S.C. § 1326(d), Appellant brings a collateral challenge to the
removal order underlying his § 1326 conviction. 8 U.S.C. § 1326(d)(3). Appellant
argues his attempted murder conviction falls outside the federal definition of an
aggravated felony because California’s application of the natural and probable
consequences doctrine is broader than the generic definition of aiding and abetting.
See United States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir. 2008) (per
curiam) (a state offense falls within the definition of an aggravated felony if the
conduct prescribed by the state statute of conviction falls within the generic
definition of the offense).
California’s application of the natural and probable consequences doctrine to
attempted murder is not, alone, sufficient to render that statute over broad.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190–91 (2007). Appellant has not
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shown there is something “special” about California’s version of the natural and
probable consequences doctrine and the way it is applied to attempted murder. Id.
at 191. Although California does apply the natural and probable consequences
doctrine to attempted murder in gang-related cases, Appellant has not shown that
the way the doctrine is applied in such cases “criminalizes conduct that most other”
jurisdictions would not consider attempted murder. Id. Accordingly, Appellant’s
conviction for aiding and abetting attempted murder qualifies as an aggravated
felony, and the removal order underlying his § 1326 conviction is valid.
AFFIRMED.
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