Ruben Ceron v. Eric H. Holder Jr. , 712 F.3d 426 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN ADOLFO CERON , aka Ruben No. 08-70836
Ceron-Casco,
Petitioner, Agency No.
A073-969-493
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 8, 2012—Pasadena, California
Filed April 2, 2013
Before: Myron H. Bright,* Susan P. Graber,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Ikuta
*
The Honorable Myron H. Bright, Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
2 CERON V . HOLDER
SUMMARY**
Immigration
The panel denied Ruben Adolfo Ceron’s petition for
review of the Board of Immigration Appeals’ decision finding
that his conviction for assault with a deadly weapon, in
violation of California Penal Code § 245(a)(1), constituted a
crime involving moral turpitude (“CIMT”) for which a
sentence of at least one year’s imprisonment could have been
imposed.
The panel held that this court’s holding in Gonzales v.
Barber, 207 F.2d 398 (9th Cir. 1953), aff’d on other grounds,
347 U.S. 637 (1954), that an earlier but substantially similar
version of CPC § 245 is a categorical CIMT, remains good
law. The panel also held that Ceron’s conviction is a felony,
because although the offense is a wobbler, the minute order
designated it as a felony and CPC § 17(b) did not apply to
automatically convert it into a misdemeanor since the state
court suspended imposition of sentence and ordered probation
instead.
Dissenting, Judge Ikuta would hold that the majority lacks
authority not to follow the en banc opinion in Navarro-Lopez
v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), overruled on
other grounds by United States v. Aguila-Montes de Oca, 655
F.3d 915 (9th Cir. 2011), and multiple rulings by this court,
which established that assault with a deadly weapon is not a
CIMT. Judge Ikuta wrote that the majority erred in holding
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CERON V . HOLDER 3
that statements in a prior opinion are not binding if the
majority decides that the statements relate to an issue that was
not presented for review. Judge Ikuta also wrote that the
majority further erred in holding that this court can ignore or
overrule a statement in an en banc opinion if it relies on
precedent that is not directly on point.
COUNSEL
Mario Acosta, Jr., Martinez Goldsby & Associates, PLC, Los
Angeles, California, for Petitioner.
Joseph A. O’Connell, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Ruben Adolfo Ceron pleaded nolo contendere
in California state court to assault with a deadly weapon, in
violation of California Penal Code section 245(a)(1). The
state court sentenced Petitioner to 364 days to be served in
county jail, but it suspended that sentence and imposed
probation instead. The Board of Immigration Appeals
(“BIA”) held that Petitioner was removable pursuant to
8 U.S.C. § 1227(a)(2)(A)(i) for having committed a crime
involving moral turpitude for which a sentence of at least one
year’s imprisonment could have been imposed. Reviewing
questions of law de novo, Blanco v. Mukasey, 518 F.3d 714,
718 (9th Cir. 2008), we deny the petition for review.
4 CERON V . HOLDER
First, California Penal Code section 245(a)(1) is
categorically a “crime involving moral turpitude.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(I). We held long ago that assault with a
deadly weapon under California Penal Code section 245 is a
crime involving moral turpitude. Gonzales v. Barber,
207 F.2d 398, 400 (9th Cir. 1953) (construing an earlier, but
substantially similar version of section 245), aff’d on other
grounds, 347 U.S. 637 (1954). That decision accorded with
a long-standing BIA interpretation. In re G- R-, 2 I. & N.
Dec. 733 (B.I.A. 1946); see also In re Sanudo, 23 I. & N.
Dec. 968, 971 (B.I.A. 2006) (reaffirming that “assault and
battery with a deadly weapon has long been deemed a crime
involving moral turpitude by both this Board and the Federal
courts” (citing Barber, 207 F.2d at 400)).
In Carr v. INS, 86 F.3d 949, 951 (9th Cir. 1996), we
wrote that California Penal Code section 245(a)(2), assault
with a firearm, “is not a crime of moral turpitude.” We leave
for another day the government’s argument that Carr’s
statement is dictum. See Barapind v. Enomoto, 400 F.3d 744,
750–51 (9th Cir. 2005) (en banc) (per curiam) (defining
dictum). Even assuming that Carr’s statement is a holding,
it has no effect here: Carr concerned California Penal Code
section 245(a)(2), assault with a firearm, whereas here we
deal with California Penal Code section 245(a)(1), assault
with a deadly weapon. Nothing in Carr suggests that it
intended to overrule Barber. Nor could Carr have overruled
Barber in the absence of an intervening change in law. See
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en
CERON V . HOLDER 5
banc) (describing the limits of a three-judge panel’s
authority).1
In later cases, we have cited Carr’s statement in passing.
Complicating matters, although Carr plainly concerned
assault with a firearm, some of our later cases have
mischaracterized Carr’s holding as concerning assault with
a deadly weapon. See Castrijon-Garcia v. Holder, 704 F.3d
1205, 1212 (9th Cir. 2013) (“’Indeed, we have determined,
for example, that . . . assault with a deadly weapon, [Carr,
86 F.3d at 951,] do[es] not involve moral turpitude.’”
(citation omitted) (quoting Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1074–75 (9th Cir. 2007) (en banc) (Reinhardt,
J., concurring for the majority))); Robles-Urrea v. Holder,
678 F.3d 702, 708 (9th Cir. 2012) (same); Nicanor-Romero
v. Mukasey, 523 F.3d 992, 1018 n.6 (9th Cir. 2008)
(“[A]ssault with a deadly weapon does not constitute [a crime
involving moral turpitude].” (citing Carr, 86 F.3d at
950–51)); Marmolejo-Campos v. Gonzales, 503 F.3d 922,
927 (9th Cir. 2007) (Nelson, D.W., J., dissenting) (“[A]ssault
with a deadly weapon [and other crimes] have all been found
not to involve moral turpitude.” (citing Carr with the
parenthetical “assault with a deadly weapon”)). Those
erroneous passing descriptions of Carr’s statement are dicta;
they cannot and do not overrule Barber. Barapind, 400 F.3d
at 750–51; see Ruff v. Sullivan, 907 F.2d 915, 918 (9th Cir.
1990) (“This panel is not bound by dicta from prior cases
1
Carr did not mention Barber, and it contains very little reasoning.
Indeed, the only reasoning in Carr is a citation to two cases and
corresponding parentheticals. In our view, the cases and parentheticals do
not support Carr’s conclusion. Nor does logic. As a three-judge panel,
however, we cannot overrule Carr in the absence of certain circumstances.
Miller, 335 F.3d at 899–900. W e need not decide whether those
circumstances are present here, for the reasons described in text.
6 CERON V . HOLDER
. . . .” (internal quotation marks omitted)). The issue whether
assault with a deadly weapon under California Penal Code
section 245(a)(1) is a crime involving moral turpitude plainly
was not an “issue presented for review.” Barapind, 400 F.3d
at 750. Neither Carr nor our later cases purported to
consider—let alone overrule—our decision in Barber.
Barber remains good law.2
Nor are we persuaded by Petitioner’s arguments
concerning mens rea and the extent of the injury. Under
California law, “[a]ssault is . . . a general intent crime . . .
[and] mere recklessness or criminal negligence is . . . not
2
The dissent argues that, because we mischaracterized Carr’s holding
in a later case, we are bound by that plain mischaracterization. We
disagree for two reasons. First, as we noted in text, the issue whether
assault with a deadly weapon is a crime involving moral turpitude was not
“presented for review” in any of the later cases. Barapind, 400 F.3d at
750. That fact fatally undermines the dissent’s argument that we are
bound by the later cases’ misstatements. See, e.g., Chen v. Mukasey,
524 F.3d 1028, 1033 (9th Cir. 2008) (“Because the interplay between the
two statutory provisions was not ‘presented for review’ in He, we are not
bound by He’s offhand observation.” (quoting Barapind, 400 F.3d at
750)); United States v. Macias-Valencia, 510 F.3d 1012, 1015 (9th Cir.
2007) (“In neither case, then, was the issue we face today ‘presented for
review’ and decided. Accordingly, we are free to decide the issue without
referring it to the court en banc.” (quoting Barapind, 400 F.3d at 750)).
The dissent never addresses that key point.
Second, common sense dictates that a plain misstatement by one
panel cannot bind future panels. Suppose we hold in “Smith” that section
12 of a statute is unconstitutional. If we later accidentally invert the digits
and mischaracterize our holding in “Smith” as declaring section 21 of the
statute unconstitutional, that mischaracterization certainly would not bind
us with respect to the constitutionality of section 21. The mere description
of the holding of an earlier case is not, itself, a holding— at a minimum
where, as here, the description is plainly erroneous and the issue plainly
was not considered by the later cases.
CERON V . HOLDER 7
enough” to sustain a conviction. People v. Williams, 29 P.3d
197, 203 (Cal. 2001) (citations omitted). Moreover,
Petitioner glosses over the fact that section 245(a)(1) does not
concern simple assault; it prohibits assault with a deadly
weapon. As the BIA has recognized, that fact is an
“aggravating factor.” In re Solon, 24 I. & N. Dec. 239, 245
(B.I.A. 2007). “Although as a general rule, a simple assault
and battery offense does not involve moral turpitude, an
aggravating factor can alter our determination.” In re Sejas,
24 I. & N. Dec. 236, 237 (B.I.A. 2007); see Solon, 24 I. & N.
Dec. at 245 (“[T]he presence of an aggravating factor can be
important in determining whether a particular assault amounts
to a crime involving moral turpitude.”). “The ‘aggravating
dimensions’ recognized as sufficiently increasing the
culpability of an assault to turn an assault into a [crime
involving moral turpitude] have been the use of a deadly
weapon . . . .” Uppal v. Holder, 605 F.3d 712, 717 (9th Cir.
2010) (citing In re Medina, 15 I. & N. Dec. 611 (B.I.A.
1976)); In re Sanudo, 23 I. & N. Dec. at 971 (reaffirming that
“assault and battery with a deadly weapon has long been
deemed a crime involving moral turpitude by both this Board
and the Federal courts” (citing Barber, 207 F.2d at 400)).
In sum, we conclude that our holding in Barber—that
assault with a deadly weapon under California Penal Code
section 245(a)(1) is a crime involving moral
turpitude—remains good law.
Second, Petitioner’s conviction under California Penal
Code section 245(a)(1) is a conviction for a “crime for which
a sentence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). A person convicted of violating
section 245(a)(1) “shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for
8 CERON V . HOLDER
not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000), or by both the fine and
imprisonment.”
At first glance, it seems clear that Petitioner committed a
crime for which a sentence of one year or longer could have
been imposed. Indeed, under the statutory text, he could have
received up to four years in state prison. But we have
rejected that analysis, for reasons that require some
explanation.
In California, “[a] felony is a crime that is punishable
with death, by imprisonment in the state prison, or . . . by
imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170.” Cal. Penal Code § 17(a).
“Every other crime . . . is a misdemeanor . . . .” Id. Some
crimes, however, are punishable by both felony-type
punishments and non-felony-type punishments—for example,
by imprisonment in state prison (felony-type punishment) and
by imprisonment in county jail (non-felony-type punishment).
Those crimes are known as “wobblers.” See generally Ewing
v. California, 538 U.S. 11, 16–17 (2003) (describing
“wobblers”).
For wobblers, California Penal Code section 17(b)
describes a number of circumstances in which the wobbler “is
a misdemeanor for all purposes.” Relevant here, that section
states:
When a crime is punishable, in the
discretion of the court, either by imprisonment
in the state prison or imprisonment in a
county jail under the provisions of subdivision
(h) of Section 1170, or by fine or
CERON V . HOLDER 9
imprisonment in the county jail, it is a
misdemeanor for all purposes under the
following circumstances:
(1) After a judgment imposing a
punishment other than imprisonment in the
state prison or imprisonment in a county jail
under the provisions of subdivision (h) of
Section 1170.
....
(3) When the court grants probation to a
defendant without imposition of sentence and
at the time of granting probation, or on
application of the defendant or probation
officer thereafter, the court declares the
offense to be a misdemeanor.
Cal. Penal Code § 17(b).
In Garcia-Lopez v. Ashcroft, 334 F.3d 840, 842 (9th Cir.
2003), the petitioner had pleaded guilty to having violated
California Penal Code section 487.2 (1992). That crime “is
punishable by ‘imprisonment in a county jail not exceeding
one year or in the state prison.’” Id. at 844 (quoting Cal.
Penal Code § 489(b) (1992)). The state court had suspended
the proceedings and ordered the petitioner to serve probation.
Id. at 842. The state court later designated the petitioner’s
offense a misdemeanor and dismissed the charges. Id.
The relevant federal question in Garcia-Lopez was
whether the “maximum penalty possible” exceeded one year.
Id. at 843. We began our analysis by recognizing that section
10 CERON V . HOLDER
487.2 is a “wobbler” under California law. Id. at 844. We
next looked to California Penal Code section 17(b)’s list of
circumstances in which a wobbler is considered a
misdemeanor “for all purposes.” Id. We held that, because
the court suspended the sentence and imposed only probation,
section 17(b)(1) did not apply. Id. at 844–45. But we then
held that, because the court declared the offense to be a
misdemeanor, section 17(b)(3) did apply, and the petitioner’s
conviction was a “misdemeanor for all purposes.” Id. at
845–46.
At that point in the analysis, we could have concluded
that the maximum penalty possible was one year, because the
applicable statutory section specified that imprisonment in
county jail (the non-felony-type punishment) was limited to
one year. Because the federal inquiry was whether the
maximum penalty exceeded one year, the analysis would
have been complete. In a step that had no consequence to
that case, but that has much consequence to this one, we
wrote: “Because the offense of which he was convicted was
a misdemeanor, Garcia-Lopez’s maximum possible penalty
under California law was less than six months. See Cal.
Penal Code § 19 (West 1992).” Garcia-Lopez, 334 F.3d at
846.
In Ferreira v. Ashcroft, 382 F.3d 1045, 1048 (9th Cir.
2004), the petitioner had pleaded guilty to violating
California Health & Safety Code section 11377(a) (1998).
“The statute provided that offenders ‘shall be punished by
imprisonment in the county jail for a period of not more than
one year or the state prison.’” Id. (quoting Cal. Health &
Safety Code § 11377(a) (1998)). The state court had
sentenced the petitioner to four months in the county jail. Id.
CERON V . HOLDER 11
The relevant federal question in that case, as in Garcia-
Lopez, was whether the maximum possible penalty exceeded
one year. Ferreira, 382 F.3d at 1049–50. We held that,
although the criminal statute was a wobbler, “[o]nce the state
court sentenced [the petitioner] to a county jail term rather
than a term in the state prison, the offense automatically
converted from a felony into a misdemeanor for all
purposes.” Id. at 1051 (citing Cal. Penal Code § 17(b)(1) and
Garcia-Lopez, 334 F.3d at 844). Then, as in Garcia-Lopez,
we took the unnecessary final step of holding that, “[u]nder
California law, the maximum penalty for a misdemeanor is
six months’ imprisonment, and [the petitioner’s] offense is
therefore not an aggravated felony.” Id. (citing Garcia-
Lopez, 334 F.3d at 846, with the parenthetical: “holding with
regard to a ‘wobbler’ offense that ‘[b]ecause the offense of
which he was convicted was a misdemeanor, Garcia-Lopez’s
maximum possible penalty under California law was less than
six months’” (alteration in original)).
In our view, we erred in Garcia-Lopez and Ferreira in
that final analytical step. California Penal Code section 19
provides:
Except in cases where a different
punishment is prescribed by any law of this
state, every offense declared to be a
misdemeanor is punishable by imprisonment
in the county jail not exceeding six months, or
by fine not exceeding one thousand dollars
($1,000), or by both.
(Emphasis added.) As its text plainly states, the provision
applies only when a statute is designated a “misdemeanor”
without further description of the possible penalties. See,
12 CERON V . HOLDER
e.g., Cal. Penal Code § 372 (“Every person who maintains or
commits a public nuisance . . . is guilty of a misdemeanor.”);
id. § 374c (“Every person who shoots any firearm from or
upon a public road or highway is guilty of a misdemeanor.”).
Where a criminal statute specifies a range of punishment,
however, that range controls and section 19 does not apply.
See, e.g., In re Jennings, 95 P.3d 906, 917–18 (Cal. 2004)
(explaining that, “[i]n general, punishment for a misdemeanor
cannot exceed confinement in a county jail for up to six
months [pursuant to section 19]” but that a “violation of
section 25658(c) [(2004)], though not a felony, provides for
a punishment greater than that prescribed for the typical
misdemeanor because a violator ‘shall be punished [for
amounts differing from section 19]’”). Because the relevant
criminal statutes at issue in Garcia-Lopez and Ferreira gave
specific punishments, we erred in looking to section 19’s
general range.
Although that analytical step had no legal consequence in
those cases, it does have legal consequence here. The federal
inquiry here is whether the state statute permitted
imprisonment of at least one year. 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). California Penal Code section
245(a)(1) specifies punishment of “imprisonment in the state
prison for two, three, or four years, or in a county jail for not
exceeding one year, or by a fine not exceeding ten thousand
dollars ($10,000), or by both the fine and imprisonment.”
(Emphasis added.) Even assuming that Petitioner’s crime
was a misdemeanor, the statute permits imprisonment “in a
county jail for not exceeding one year.” Id. Because the
statute permits imprisonment for one year, the one-year
requirement under 8 U.S.C. § 1227(a)(2)(A)(i)(II) is met even
if Petitioner’s crime was a misdemeanor.
CERON V . HOLDER 13
Nevertheless, Garcia-Lopez and Ferreira held, in
circumstances indistinguishable from these, that section 19
applies. Accordingly, we must follow those cases and
analyze whether Petitioner’s crime was a misdemeanor or a
felony. Barapind, 400 F.3d at 750–51; Gammie, 335 F.3d at
899–900.
The minute order here designated Petitioner’s conviction
as a felony. That fact is not necessarily conclusive, however.
Ferreira, 382 F.3d at 1051 n.3. If section 17(b) applies, the
conviction “is automatically converted for all purposes into
a misdemeanor.” Id.
Unfortunately for Petitioner, section 17(b) does not apply.
Section 17(b)(1) does not apply because the state court
suspended the imposition of the sentence and ordered
probation instead, just as in Garcia-Lopez. See Garcia-
Lopez, 334 F.3d at 844 (holding, in circumstances
indistinguishable from Petitioner’s here, that “because
Garcia-Lopez was never subject to a judgment imposing
punishment, § 17(b)(1) is inapplicable to his case”). Nor does
section 17(b)(3) apply. Unlike in Garcia-Lopez, the state
court never declared Petitioner’s offense to be a
misdemeanor. Id. at 845.
Because section 17(b) does not apply and because the
minute order designated Petitioner’s conviction as a felony,
we hold that Petitioner’s conviction was a felony. See United
States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992)
(holding, in circumstances identical to Petitioner’s here, that
“the requirements of § 17(b)(1) and (3) of the California
Penal Code were not met” and, accordingly, the conviction
was a felony), recognized as overruled in other part by
Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019–20 (9th
14 CERON V . HOLDER
Cir. 2006). The felony sentencing provisions of section
245(a)(1) allow for imprisonment of more than one year.
Accordingly, Petitioner’s conviction under California Penal
Code section 245(a)(1) is a conviction for a “crime for which
a sentence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(II).
Petition DENIED.
IKUTA, Circuit Judge, dissenting:
Today, the majority adopts an idiosyncratic approach to
precedent to avoid following one of our en banc decisions.
Although an en banc panel stated that “assault with a deadly
weapon” is not a crime involving moral turpitude, see
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.
2007), overruled on other grounds by United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), and
although this statement has been followed by subsequent
panels, see, e.g., Robles-Urrea v. Holder, 678 F.3d 702, 708
(9th Cir. 2012), Castrijon-Garcia v. Holder, 704 F.3d 1205,
1212 (9th Cir. 2013), the majority decides it is not bound by
this precedent because Navarro-Lopez was mistaken in the
way it reached this conclusion. Because we are not free to
cast off precedent, however mistaken, unless we correct it
through en banc rehearing, see United States v. Parker,
651 F.3d 1180, 1184 (9th Cir. 2011); Hart v. Massanari,
266 F.3d 1155, 1171 (9th Cir. 2001), I respectfully dissent.
CERON V . HOLDER 15
I
Ruben Ceron was convicted of assault with a deadly
weapon in violation of California Penal Code section
245(a)(1). The question before us is whether this crime
categorically involves moral turpitude.
A
We established our analytical approach to this question in
Navarro-Lopez. In that case, we considered whether a
conviction for accessory after the fact was a crime involving
moral turpitude. See Navarro-Lopez, 503 F.3d at 1067. In
analyzing this issue, we first derived the generic definition of
the term, stating that “a crime involving moral turpitude is a
crime involving conduct that (1) is base, vile, or depraved,
and (2) violates accepted moral standards.” Id. at 1068.
Despite the breadth of this definition, we warned that it was
not limitless, because “at some level all illegal acts violate
societal norms and values—that is why the acts are illegal.”
Id. at 1072 n.9. Rather, we explained, “‘crimes involving
moral turpitude’ is a limited category of crimes and does not
extend to cover all conduct that violates the law.” Id. In
order to determine whether “accessory after the fact” fell into
this limited category, we compared it to other crimes not
deemed to be morally turpitudinous. See id. at 1072–73.
Because “neither burglary nor assault with a deadly weapon
constitute crimes of moral turpitude,” and because one could
be an accessory to such non-turpitudinous conduct, we
concluded that acting as an accessory after the fact could not
categorically constitute a “crime involving moral turpitude.”
Id. at 1073.
16 CERON V . HOLDER
The concurrence (which is precedential, because it was
joined by seven other judges) agreed that accessory after the
fact was not a crime of moral turpitude, and echoed the
majority’s concern about defining crimes of moral turpitude
too expansively.1 See id. at 1075. The concurrence then
echoed the majority’s reasoning that in order to identify what
sort of conduct “offend[s] the most fundamental moral values
of society” a comparative approach must be used: namely, we
must “compare a crime’s depravity with that of crimes we
have previously determined to be base, vile and
depraved—crimes such as murder, rape, and incest.” Id. at
1074–75. It likewise noted that assault with a deadly weapon
was not a crime involving moral turpitude. Id. at 1074.
Throughout the en banc panel’s effort to delimit the
boundaries of crimes involving moral turpitude, the majority
and the concurrence stated three times that the offense of
assault with a deadly weapon is not a crime involving moral
turpitude. See, e.g., id. at 1072 (“No court has ever found
possession of a weapon to be a crime involving moral
turpitude. Cf. Carr, 86 F.3d at 950–51 (holding that assault
with a deadly weapon was not a crime involving moral
turpitude)”); id. at 1073 (“We have held that neither burglary
nor assault with a deadly weapon constitute crimes of moral
turpitude.”); id. at 1075 (Reinhardt, J., concurring) (“There
are other offenses that are so base, vile, and depraved that
they qualify as crimes of moral turpitude . . . . Not all serious
1
The concurrence disagreed with the portion of the majority’s opinion
which held that crimes involving fraud were not a “per se category of
crimes involving moral turpitude.” Id. at 1074 (Reinhardt, J., concurring).
The precedential concurrence held instead that under longstanding case
law, crimes involving fraud should be analyzed as a separate category of
crimes involving moral turpitude rather than acts that are “base, vile, or
depraved.” Id.
CERON V . HOLDER 17
crimes meet this standard, however. Indeed, we have
determined, for example, that burglary . . . and assault with a
deadly weapon . . . do not involve moral turpitude.”) (internal
citation omitted).
Our categorization of assault with a deadly weapon as a
non-turpitudinous offense was a significant part of the en
banc panel’s analysis and was necessary to the ultimate
holding of Navarro-Lopez. Accordingly, we are bound by
this statement absent “intervening higher authority” that
“effectively overrule[s]” it, see Miller v. Gammie, 335 F.3d
889, 892–83 (9th Cir. 2003) (en banc), and indeed,
subsequent panels have continued to cite to Navarro-Lopez as
an authoritative statement that assault with a deadly weapon
is not a crime involving moral turpitude. See, e.g., Robles-
Urrea, 678 F.3d at 708; Castrijon-Garcia, 704 F.3d at 1212.
Moreover, when we sit en banc and act in our supervisory
role, our statements are binding whether or not they are
technically necessary to our holdings. See Barapind v.
Enomoto, 400 F.3d 744, 751 n.8 (9th Cir. 2005) (en banc)
(stating that “[o]ur [en banc] opinion provides a supervisory
function” by instructing three-judge panels and district courts
about “how to determine what law is binding on them.”).
This logic applies equally to our categorization of different
offenses in Navarro-Lopez.
B
Contrary to our longstanding rules about binding
precedent, however, the majority concludes that we are not
bound by Navarro-Lopez’s categorization of assault with a
deadly weapon because Navarro-Lopez cites to Carr v. INS,
86 F.3d 949 (9th Cir. 1996), which held that assault with a
firearm was not a crime involving moral turpitude, but did
18 CERON V . HOLDER
not mention whether assault with any other deadly weapon
was likewise non-turpitudinous. See maj. op. at 4–6.
I disagree with both of the majority’s reasons for
sweeping aside our precedent. See maj. op. at 6 n.2. First,
the majority errs in holding that statements in a prior opinion
are not binding if the majority decides that those statements
relate to an issue that was not “presented for review.” Id.
Because a subsequent panel can define the issues “presented
for review” as broadly or narrowly as it chooses, this “test”
threatens to swallow our rule regarding binding precedent.
See, e.g., Oshodi v. Holder, 671 F.3d 1002, 1008 n.4 (9th Cir.
2012) (rejecting an interpretation of the REAL ID Act in Ren
v. Holder, 648 F.3d 1079 (9th Cir. 2011), because “that issue
was not ‘presented for review’ to the Ren panel,” and
therefore its interpretation “is dicta and need not be
considered here.”), reh’g en banc granted, 678 F.3d 776 (9th
Cir. 2012) (internal citations omitted). Here, the Navarro-
Lopez en banc panel determined that the resolution of the
question whether “accessory after the fact” constituted a
“crime involving moral turpitude” required it to review and
categorize the crimes that fell inside and outside this category
and assault with a deadly weapon was among the crimes it
reviewed. See Navarro-Lopez, 503 F.3d at 1072–73. The en
banc court’s analysis of this legal issue cannot now be
brushed aside on the ground that the parties did not
specifically ask the en banc court to conduct such a review.2
2
The majority relies on Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008)
and United States v. Macias-Valencia, 510 F.3d 1012 (9th Cir. 2007) for
the principle that a subsequent panel is not bound by statements in prior
decisions relating to an issue that had not been “presented for review,” but
neither case supports that principle. In both cases, the prior decision in
question had acknowledged that its passing remarks were not precedential.
See Chen, 524 F.3d at 1033 (“W e acknowledged, however, that [our
CERON V . HOLDER 19
Second, the majority errs in holding that we can ignore or
overrule a statement in one of our en banc opinions if it relies
on precedent that is not directly on point. If this were true,
untold numbers of our rulings would be deemed non-
precedential. Here, Navarro-Lopez applied the holding in
Carr (that assault with a firearm was not a crime involving
moral turpitude) to assault with other deadly weapons. See
id. at 1072–73. Contrary to the majority’s argument, this is
a reasonable extension of our precedent, not a “plain
misstatement” akin to an inadvertent transposition of two
numbers. See maj. op. at 6 n.2.
Moreover, even if Navarro-Lopez had made a mistake in
interpreting Carr, a three-judge panel could not overrule such
an error; “[o]nly the en banc court” can correct such mistakes.
See Parker, 651 F.3d at 1184.3 Indeed, we expressly rejected
observation in He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007) about the
potential relief available to the petitioners] was not before us.”); see also
Macias-Valencia, 510 F.3d at 1015 (holding that “our use of the
subjunctive” in mentioning an argument in passing “suggests that we
knew that we were not addressing, and that we could not address” that
argument). Here, the Navarro-Lopez en banc panel repeatedly asserted
that assault with a deadly weapon is not a crime involving moral turpitude,
and nowhere suggested that this categorization was a non-precedential
offhand remark.
3
Thus, it does not matter that an earlier three-judge panel held that
assault with a deadly weapon is a crime involving moral turpitude. See
maj. op. at 4 (citing Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir.
1953)). An en banc decision overrules all prior precedent. See Gammie,
335 F.3d at 892–93. Even if there were a conflict between Barber and
Navarro-Lopez or our subsequent case law, a three-judge panel cannot
resolve the conflict by ignoring the later precedent. Rather, “the
appropriate mechanism for resolving an irreconcilable conflict is an en
banc decision.” Atonio v. Wards Cove Packing Co., 810 F.2d 1477,
1478–79 (9th Cir. 1987) (en banc).
20 CERON V . HOLDER
the majority’s approach in United States v. Contreras
(Contreras II), 593 F.3d 1135, 1136 (9th Cir. 2010) (en
banc). In that case, it was clear that one of our opinions,
United States v. Hill, 915 F.2d 502 (9th Cir. 1990), had been
overruled by the 1993 amendments to the Sentencing
Guidelines. See United States v. Contreras (Contreras I),
581 F.3d 1163, 1166 (9th Cir. 2009). But several intervening
Ninth Circuit cases continued to cite to Hill erroneously after
the 1993 amendments. See id. at 1167. Because this was
error, the Contreras I panel said that it was not bound by
those intervening cases, and ruled that it was instead bound
to follow the Guidelines. See id. at 1168–69. We took the
case en banc to clarify that this method of overruling cases is
wrong. See Contreras II, 593 F.3d at 1136. On en banc
rehearing, we affirmed the substance of the three-judge
panel’s opinion, but vacated the panel’s analysis concerning
its ability to overrule Hill and later cases. See id. In stating
that we are not bound to follow three-judge panels citing to
Carr because their decisions have misinterpreted it, see maj.
op. at 5–6, the majority commits a similar error.4
In sum, the majority lacks the authority to sweep aside
multiple Ninth Circuit rulings, including an en banc opinion,
and insist on the ruling it prefers. See Barapind, 400 F.3d at
750–51 & n.8. Because our en banc panel established that
4
Curiously, the majority eschews this approach in the second part of its
opinion, where it acknowledges that we are bound by Garcia-Lopez v.
Ashcroft, 334 F.3d 840 (9th Cir. 2003) and Ferreira v. Ashcroft, 382 F.3d
1045 (9th Cir. 2004) despite their obviously erroneous interpretation of
California law. See maj. op. at 13 (“Nevertheless, Garcia-Lopez and
Ferreira held, in circumstances indistinguishable from these, that section
19 applies. Accordingly, we must follow those cases and analyze whether
[Ceron’s] crime was a misdemeanor or a felony. Barapind, 400 F.3d at
750–51; Gammie, 335 F.3d at 899–900.”).
CERON V . HOLDER 21
assault with a deadly weapon is not a crime involving moral
turpitude, I dissent.