United States v. Alonso Chavez-Gonzalez ( 2011 )

FILED
NOT FOR PUBLICATION DEC 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50615
Plaintiff - Appellee, D.C. No. 3:10-cr-01365-IEG
v.
MEMORANDUM *
ALONSO CHAVEZ-GONZALEZ, etc.
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted October 11, 2011
Pasadena, California
Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Appellant Alonso Chavez-Gonzalez (“Chavez”) appeals from the denial by
the district court of his Motion to Dismiss the Indictment. The Indictment charged
Chavez under 8 U.S.C. § 1326(a) and (b) with being a deported alien, previously
removed to Mexico, who was later found in the United States without permission.
Chavez argues that the Indictment should have been dismissed because two orders
removing him, in 2000 and 2005, were invalid, since they were based on the
erroneous conclusion by immigration officials that his prior conviction of
possession for sale of a controlled substance under California Health and Safety
Code § 11351 was for a substance listed in the federal Controlled Substances Act,
and an aggravated felony. Chavez claims the record does not establish that the
controlled substance at issue in his prior conviction was cocaine.
Chavez entered a conditional guilty plea to the Indictment, retaining the
right to appeal the denial of the Motion to Dismiss. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, Dallas, sitting by designation.
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We review the denial of a Motion to Dismiss an Indictment de novo “when
the motion is based upon an alleged due process defect in the underlying
deportation proceeding.” United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th
Cir. 2006)(citations omitted). We review the District Court’s factual findings for
clear error. Id.This Court has held that in a criminal prosecution under 8 U.S.C. § 1326, the
Fifth Amendment “requires a meaningful opportunity for judicial review of the
underlying deportation.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th
Cir. 2001)(citations omitted). Therefore, an underlying deportation may be
collaterally attacked in a criminal proceeding.
The district court correctly applied the modified categorical approach to
evaluate the underlying conviction. Here, the judicially noticeable documents
include the criminal information, the abstract of judgment, the minute order, and
the transcript of Chavez’s plea hearing.
Count 1 of the state court criminal information, to which Chavez pled no
contest, charged Chavez with possession for sale of “a controlled substance, to wit,
cocaine.” The abstract of judgment reflected a conviction for possession of a
controlled substance for sale. The minute order indicated that Chavez pled nolo
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contendere to Count 1. The transcript of the plea hearing before the trial court
connects these documents. The transcript demonstrates that in response to the
prosecutor’s description of the charge as possession for sale of a controlled
substance, “in this case cocaine,” Chavez pleaded “no contest,” which he expressly
acknowledged knowing was the same as a guilty plea. Under the modified
categorical approach, these documents in the record of conviction demonstrate that
Chavez was convicted of possession for sale of cocaine. These documents also
corroborate an admission Chavez made to the Immigration Judge during the
pleading stage of his 2000 hearing, and that admission can be used by an
Immigration Judge to find removability. Perez-Mejia v. Holder, --- F.3d ----, 2011
WL 5865888 (9th Cir. 2011). All of these documents were properly considered by
the district court, and are sufficient to demonstrate that Chavez was convicted of
possession for sale of cocaine, a substance listed in the federal Controlled
Substances Act, and an aggravated felony.
Chavez argues that he did not admit the factual basis of his conviction by
pleading no contest, and, therefore, he claims his admission during the state court
plea hearing cannot be relied upon to demonstrate that the substance involved was
cocaine. However, whether or not Chavez admitted to committing the crime is not
the relevant inquiry for removal of him as an aggravated felon; for purposes of
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establishing removability under immigration law, the record must demonstrate that
“the defendant was in fact convicted of a crime that met the definition of aggravated
felony.” Sandoval-Lua v. Gonzalez, 499 F.3d 1121, 1129 (9th Cir. 2007)(internal
citation and quotations omitted)(emphasis added). As discussed above, an analysis
of the record under the modified categorical approach makes clear that Chavez’s
conviction was for possession of cocaine, as charged in the information. Therefore,
he was subject to removal.
In United States v. Smith, this Court used the modified categorical approach
in examining a sentence enhancement under the Armed Career Criminal Act.
United States v. Smith, 390 F.3d 661 (9th Cir. 2004). In Smith, the defendant
pleaded nolo contendere to a burglary charge, and this Court looked at the transcript
of the plea colloquy to determine the facts of the offense, as described by the
prosecutor at the hearing, and to which the defendant pled nolo contendere. This
Court reasoned that when a defendant pleads nolo contendere, each factual
allegation to which a defendant pleads is taken as true for purposes of an analysis
under the modified categorical approach. Smith, 390 F.3d at 665-66 (citing United
States v. Williams, 47 F.3d 993, 995 (9th Cir.1995)). As in Smith, in this case
Chavez pleaded no contest to specific facts that the prosecutor stated during the
hearing, namely that the charge of possession for sale of a controlled substance was
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“in this case cocaine.” Under Smith, this Court must accept that fact as true when
conducting its analysis under the modified categorical approach, regardless of the
fact that Chavez’s plea was nolo contendere instead of guilty.
The facts shown by the record demonstrate that the substance which Chavez
admitted to possessing for sale was cocaine. In addition to the proof in the record
of his conviction, during the pleading stage of the 2000 removal proceeding,
Chavez admitted that he was convicted of possession for sale of cocaine, as alleged
in the Notice to Appear. The second removal proceeding, in 2005, was based on the
2000 proceeding. Under Perez-Mejia and Pagayon v. Holder, --- F.3d ----, 2011
WL 6091276 (9th Cir. 2011), Chavez’s admission before the Immigration Judge at
the pleading stage was properly considered under the modified categorical approach
and further supports the district court’s decision. Thus, the district court properly
denied Chavez’s Motion to Dismiss the Indictment.
AFFIRMED.
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