United States v. Mario Gonzalez-Corn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50480
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00120-
GW-1
MARIO MODESTO GONZALEZ-CORN,
AKA Mario M. Gonzalez, AKA
Mario Modesto Gonzalez, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
May 5, 2015—Pasadena, California
Filed July 17, 2015
Before: Raymond C. Fisher, Carlos T. Bea
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Fisher
2 UNITED STATES V. GONZALEZ-CORN
SUMMARY*
Criminal Law
The panel affirmed a conviction for illegally reentering
the United States after having been deported, in violation of
8 U.S.C. § 1326(a).
The panel held that the defendant’s prior conviction under
the federal Controlled Substances Act (CSA), for possessing
marijuana with the intent to distribute, resulting in a sentence
exceeding one year, was for an aggravated felony under the
Immigration and Nationality Act (INA). The panel held that
because the INA incorporates felony violations of the CSA
into its definition of “aggravated felony,” and because the
defendant was convicted of a felony violation of the CSA, his
conviction qualifies as an aggravated felony on its face. The
panel concluded that there is, accordingly, no need to
compare the elements of his conviction to the elements of a
generic federal offense of possession with intent to distribute
marijuana to determine if his conviction was for an
aggravated felony, as set forth in Taylor v. United States, 495
U.S. 575 (1990), and Moncrieffe v. Holder, 133 S. Ct. 1678
(2013). The panel explained that in the aggravated felony
context, the Taylor approach is intended for cases in which
the defendant (or petitioner, in the immigration context) was
convicted under a statutory scheme that is not directly
incorporated into the INA, such as a conviction under state
law.
*
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. GONZALEZ-CORN 3
The panel held that the district court did not err when it
instructed the jury that it could infer the defendant’s alienage
from his prior deportation order in combination with his
admissions regarding his alienage.
COUNSEL
Kurt Mayer and Kathryn A. Young (argued), Deputy Federal
Public Defenders; Sean K. Kennedy, Federal Public
Defender; Hilary Potashner, Acting Federal Public Defender,
Los Angeles, California, for Defendant-Appellant.
Allison L. Westfahl Kong (argued) and Jamie A. Lang,
Assistant United States Attorneys; Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division;
Stephanie Yonekura, Acting United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
OPINION
FISHER, Circuit Judge:
Mario Modesto Gonzalez-Corn was convicted by a
federal jury of illegally reentering the United States after
having been deported, in violation of 8 U.S.C. § 1326(a). He
appeals his conviction, arguing his deportation violated due
process because the immigration judge (IJ) incorrectly
determined he had previously been convicted of an
aggravated felony, as defined by the Immigration and
Nationality Act (INA), 8 U.S.C. § 1101(a)(43). He also
contends the district court improperly instructed the jury
4 UNITED STATES V. GONZALEZ-CORN
about the evidence it could consider in determining his
alienage.
We hold Gonzalez’s prior conviction under the federal
Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.,
for possessing marijuana with the intent to distribute,
resulting in a sentence exceeding one year, was for an
aggravated felony under the INA. Because the INA
incorporates felony violations of the CSA into its definition
of “aggravated felony,” and because Gonzalez was convicted
of a felony violation of the CSA, his conviction qualifies as
an aggravated felony on its face. Accordingly, there is no
need to compare the elements of his conviction to the
elements of a generic federal offense of possession with
intent to distribute marijuana to determine if his conviction
was for an aggravated felony, as set forth in Taylor v. United
States, 495 U.S. 575 (1990), and Moncrieffe v. Holder, 133 S.
Ct. 1678 (2013). In the aggravated felony context, the Taylor
approach is intended for cases in which the defendant (or
petitioner, in the immigration context) was convicted under
a statutory scheme that is not directly incorporated into the
INA, such as a conviction under state law.
We also hold the district court did not err when it
instructed the jury on the evidence it could consider to
determine alienage. We therefore affirm.
I. BACKGROUND
Gonzalez immigrated to the United States as a teenager
and later became a legal permanent resident. In 2003 he pled
guilty to possession with intent to distribute less than 50
kilograms of marijuana, in violation of 21 U.S.C. § 841(a),
(b)(1)(D). He received a sentence of 15 months in prison.
UNITED STATES V. GONZALEZ-CORN 5
After his conviction, the government initiated removal
proceedings under a provision of the INA authorizing the
removal of noncitizens who have been “convicted of an
aggravated felony at any time after admission.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The government alleged Gonzalez had
been convicted of “illicit trafficking in a controlled
substance,” which is an aggravated felony under the INA.
See id. § 1101(a)(43)(B). During removal proceedings before
the IJ, Gonzalez admitted he was not a U.S. citizen, his
mother and father were not U.S. citizens, and he was a native
and citizen of Mexico. The immigration judge found he was
convicted of an aggravated felony and ordered him removed
from the United States. He was deported in 2009.
Gonzalez then returned to the United States without
inspection and was discovered by immigration agents in
January 2013. He was charged in federal district court with
illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). He
moved to dismiss the information under § 1326(d), alleging
the illegal reentry charge was based on a deportation order
that was fundamentally unfair, in violation of his right to due
process under the Fifth Amendment. See 8 U.S.C. § 1326(d).
Specifically, he argued the immigration judge erred in
determining his marijuana conviction was for an aggravated
felony. The district court denied the motion. Gonzalez
appeals that ruling.
In the ensuing trial, the government was required to prove
Gonzalez was an alien at the time of the offense. See United
States v. Ruiz-Lopez, 749 F.3d 1138, 1141 (9th Cir. 2014).
The government’s evidence of alienage included Gonzalez’s
prior deportation order, his prior statements that he was a
native and citizen of Mexico and not of the United States, and
his Mexican photo identification and voter registration cards.
6 UNITED STATES V. GONZALEZ-CORN
The parties disputed how the jury should be instructed in
considering this evidence.
Gonzalez proposed three jury instructions on the subject:
(1) the jury may not rely on an IJ’s order of deportation to
determine whether Gonzalez was an alien, because he was not
entitled to counsel in immigration court and the government
had a lower burden of proof there; (2) an IJ’s order of
deportation, by itself, is insufficient to establish alienage; and
(3) Gonzalez’s prior admissions of Mexican citizenship were
not sufficient, without more, to prove alienage. The district
court rejected the first instruction but said the second and
third might be appropriate if combined. At the court’s
request, the parties submitted a joint instruction combining
the second and third instructions, and included an additional
statement that a defendant’s admissions of foreign citizenship
in combination with a deportation order or other
corroborating evidence may establish alienage.
The district court ultimately gave the jury a slightly
modified version of the jointly proposed instruction, without
objection from the defense. The instruction stated:
The Government has presented evidence that
Defendant was ordered removed by an
immigration judge in a deportation
proceeding. An immigration judge’s order of
deportation alone is insufficient as a matter of
law to establish defendant’s status as an alien.
Similarly, a defendant’s statement about his
citizenship is not sufficient, without
independent corroborating evidence, to prove
that he is an alien. However, a defendant’s
admissions in combination with a prior
UNITED STATES V. GONZALEZ-CORN 7
deportation order or other corroborating
evidence may establish alienage.
During deliberations, the jury submitted a note to the
court asking two questions about the alienage instruction:
(1) Is it enough that the government
considered [Gonzalez-]Corn an alien at the
time he entered the country for [Gonzalez-
]Corn to be determined to be an alien?
(2) Does the word may in the [alienage
instruction] mean it does establish alienage[?]
The court responded to the first question by referring the
jury to the language in the instruction: “an immigration
judge’s order of deportation alone is insufficient as a matter
of law to establish a defendant’s status as an alien.” The
court further explained that if the only evidence the
government offered on alienage was the deportation order,
that would not be enough. In response to the second
question, the court said “the word ‘may’ . . . means that it
can establish or it cannot establish. In other words, there’s a
possibility. It’s up to the jury to weigh the evidence and
decide whether or not the defendant’s admissions in
combination with a prior deportation order or other
corroborating evidence may establish alienage.”
The next day the jury found Gonzalez guilty. We have
jurisdiction over this appeal under 28 U.S.C. § 1291, and we
affirm.
8 UNITED STATES V. GONZALEZ-CORN
II. STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss a
charge for illegal reentry based on a deportation order that is
alleged to be fundamentally unfair. See United States v.
Sandoval-Orellana, 714 F.3d 1174, 1178 (9th Cir. 2013). We
also review de novo whether a district court’s jury
instructions stated the law correctly. See United States v.
Spentz, 653 F.3d 815, 818 (9th Cir. 2011).
III. DISCUSSION
A. Aggravated Felony Determination
“Because the underlying removal order serves as a
predicate element of [a § 1326 illegal reentry offense], a
defendant charged with that offense may collaterally attack
the removal order under the due process clause.” United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006)
(alteration in original) (quoting United States v.
Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)). To do
so, a defendant must show: (1) he exhausted any
administrative remedies to appeal the order, (2) the
deportation proceedings deprived him of the opportunity for
judicial review, and (3) the entry of the order was
fundamentally unfair. See 8 U.S.C. § 1326(d). At issue in
this appeal is the third element: whether Gonzalez’s
deportation was fundamentally unfair because the IJ
incorrectly determined Gonzalez’s prior conviction was for
an aggravated felony. See Camacho-Lopez, 450 F.3d at 930.
We hold Gonzalez’s conviction was for an aggravated felony
and his deportation order was therefore valid and not
fundamentally unfair.
UNITED STATES V. GONZALEZ-CORN 9
The INA authorizes the removal of noncitizens who have
been “convicted of an aggravated felony at any time after
admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The term
“aggravated felony” includes “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section
924(c) of Title 18).” Id. § 1101(a)(43)(B). Section 924(c), in
turn, defines “drug trafficking crime” to include “any felony
punishable under the Controlled Substances Act (21 U.S.C.
801 et seq.).” 18 U.S.C. § 924(c)(2). A “felony” is classified
as an offense for which the “maximum term of imprisonment
authorized” is “more than one year.” Id. § 3559(a)(5); see
also Moncrieffe v. Holder, 133 S. Ct. 1678, 1683 (2013).
Accordingly, under the plain language of these provisions, a
conviction qualifies as an aggravated felony when it is for “an
offense that the Controlled Substances Act (CSA) makes
punishable by more than one year’s imprisonment.”
Moncrieffe, 133 S. Ct. at 1683; see also Lopez v. Gonzales,
549 U.S. 47, 56 & n.7 (2006) (interpreting “felony punishable
under the [CSA]” as an offense which is “defined as a felony
by the CSA” (alteration in original)).
Gonzalez was convicted of a felony under the CSA. The
judgment of conviction lists his offense as “Possession With
Intent to Distribute Less Than 50 Kilograms of Marijuana,”
corresponding to subsection 841(b)(1)(D) of the CSA. See
21 U.S.C. § 841(b)(1)(D). Technically, the CSA defines the
offense of possession with intent to distribute a controlled
substance at subsection 841(a). Subsection (b)(1)(D) is a
corresponding penalty provision that authorizes up to five
years’ imprisonment when the controlled substance is
marijuana and the quantity is less than 50 kilograms. See id.
The authorization of up to five years’ imprisonment makes
the offense a felony. See 18 U.S.C. § 3559(a). However, the
10 UNITED STATES V. GONZALEZ-CORN
CSA contains a misdemeanor exception to this penalty
provision, listed in subsection 841(b)(4), that limits a
defendant’s punishment to one year in prison if his offense
involved a small amount of marijuana and no remuneration.
See 21 U.S.C. § 841(b)(4).1 The Supreme Court has held
subsections (b)(1)(D) and (b)(4) are “dovetailing provisions
[that] create two mutually exclusive categories of punishment
for CSA marijuana distribution offenses: one a felony, and
one not.” Moncrieffe, 133 S. Ct. at 1686.
Gonzalez’s judgment lists only subsection (b)(1)(D), not
(b)(4). This suggests he was convicted of a CSA felony. His
judgment also reveals he was sentenced to 15 months’
imprisonment, thus exceeding the one-year maximum
sentence allowed under the misdemeanor sentencing
provision. It is therefore clear he was convicted of a felony
under the CSA and the misdemeanor sentencing exception
did not apply. Because the INA incorporates felony
violations of the CSA into its definition of aggravated felony,
see id. at 1683; Lopez, 549 U.S. at 55–56 & n.7, Gonzalez’s
crime of conviction is, by definition, an aggravated felony
under the INA.
Gonzalez rightly points out that, with respect to some
federal marijuana convictions, it may be impossible to tell
from the face of the judgment alone whether a defendant was
convicted of the CSA felony or the CSA misdemeanor. The
1
This provision reads in full: “Notwithstanding paragraph (1)(D) of this
subsection, any person who violates subsection (a) of this section by
distributing a small amount of marihuana for no remuneration shall be
treated as provided in section 844 of this title and section 3607 of Title
18.” 21 U.S.C. § 841(b)(4). Section 844, in turn, penalizes “simple
possession” with a term of imprisonment “not more than 1 year.” Id.
§ 844(a).
 UNITED STATES V. GONZALEZ-CORN 11
practical application of subsections (b)(1)(D) and (b)(4)
explains why. Subsection (b)(1)(D) applies to possession
with intent to distribute any amount of marijuana less than 50
kilograms, no matter how small. See Moncrieffe, 133 S. Ct.
at 1688; United States v. Aguilera-Rios, 769 F.3d 626, 636
(9th Cir. 2014). The burden is on the defendant to prove he
qualifies for the misdemeanor sentencing exception under
subsection (b)(4) by showing his offense involved a small
amount and no remuneration. See Aguilera-Rios, 769 F.3d at
636. But even when subsection (b)(4) is applicable, some
courts treat it as a sentencing factor and not as the offense of
conviction, meaning it may not appear in the judgment.
Consequently, a judgment might list either the all-
encompassing offense subsection (a) or the penalty
subsection (b)(1)(D), yet the sentence could have been for
less than one year. In such a case, the judgment of conviction
itself would not reveal whether the district court actually
applied the misdemeanor exception at sentencing.
We do not confront such uncertainty here, however, nor
do we opine on how a reviewing court or immigration judge
should resolve the ambiguity in such a case. Not only does
Gonzalez’s judgment identify subsection (b)(1)(D), without
any reference to the misdemeanor exception, it also reveals he
was sentenced to a term of imprisonment exceeding the
maximum allowable under the misdemeanor provision. It is
therefore clear the sentencing judge did not apply the
misdemeanor exception to Gonzalez.
Even though the INA incorporates Gonzalez’s offense of
conviction, he contends we must engage in the categorical
approach under Taylor v. United States, 495 U.S. 575,
600–02 (1990), and its progeny, by which we compare the
elements of his offense of conviction to the elements of a
12 UNITED STATES V. GONZALEZ-CORN
“generic” federal offense listed as an aggravated felony in the
INA.2 Under this analysis, “if the state statute of conviction
criminalizes more conduct than the federal generic offense,
then the state offense is not categorically included in the
definition of the federal generic offense.”
Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir.
2013). In such a case, the conviction would not categorically
be for an aggravated felony. Gonzalez argues this is the
approach required by Moncrieffe.
In Moncrieffe, the Supreme Court ruled an immigration
petitioner’s conviction under a Georgia drug statute was not
for an aggravated felony under the INA. See 133 S. Ct. at
1683–84. To do so, the Court applied the categorical
approach to see whether the Georgia law “necessarily”
proscribed conduct punishable as a felony under the
Controlled Substances Act. See id. at 1685. Applying the
categorical approach, the Court first determined what
elements make up the generic federal offense of felony
marijuana possession with intent to distribute. After noting
subsections 841(b)(1)(D) and 841(b)(4) of the CSA create
felony and misdemeanor categories of punishment,
respectively, the Court held the generic federal felony
includes as an element the absence of the factors that mitigate
punishment to misdemeanor status in subsection (b)(4). See
2
Taylor dealt specifically with whether a prior state conviction
constituted a “violent felony” under the Armed Career Criminal Act,
18 U.S.C. § 924(e), applying the categorical matching approach. See
495 U.S. at 578, 602. But the same approach “generally” applies to the
question whether a prior state conviction constitutes an aggravated felony
under the INA, Moncrieffe, 133 S. Ct. at 1684; though not always, see
Nijhawan v. Holder, 557 U.S. 29, 40 (2009) (rejecting the categorical
approach for the monetary threshold for the aggravated felony listing for
fraud).
UNITED STATES V. GONZALEZ-CORN 13
id. at 1686–87. In other words, for a state marijuana
distribution offense to be an aggravated felony, the conviction
must establish “that the offense involved either remuneration
or more than a small amount of marijuana.” Id. at 1693–94.
Because the Georgia statute at issue could possibly
criminalize possession with intent to distribute small amounts
for no remuneration, it was not a categorical match to the
generic federal offense. See id. at 1686–87.
Gonzalez’s reliance on Moncrieffe is misplaced. We are
not comparing a state drug offense to a federal CSA offense,
as in Moncrieffe. Gonzalez’s offense is a CSA offense.
Taylor and Moncrieffe’s categorical matching analysis is
inapplicable here because there is nothing to match. See
Moncrieffe, 133 S. Ct. at 1696 (Alito, J., dissenting) (“Where
an alien has a prior federal conviction, it is a straightforward
matter to determine whether the conviction was for a ‘felony
punishable under the [CSA].’” (alteration in original)). All
we must determine is whether the CSA treats Gonzalez’s
offense as a felony. See Lopez, 549 U.S. at 56 n.7. We know
it does because his judgment listed his offense as a violation
of subsection 841(b)(1)(D), not 841(b)(4), and he was
sentenced to more than one year in prison. Because
Gonzalez’s conviction was for an aggravated felony, his
subsequent deportation was valid and did not violate his due
process rights.
B. Jury Instruction on Alienage
Gonzalez also challenges his illegal reentry conviction by
arguing the district court erred by instructing the jury it could
infer he was an alien from a prior deportation order. It is true
a deportation order, on its own, is insufficient to establish
alienage. See United States v. Ruiz-Lopez, 749 F.3d 1138,
14 UNITED STATES V. GONZALEZ-CORN
1141 (9th Cir. 2014) (“‘[N]either a deportation order, nor the
defendant’s own admissions, standing alone,’ is sufficient to
prove alienage.” (alteration in original) (quoting United
States v. Ramirez-Cortez, 213 F.3d 1149, 1158 (9th Cir.
2000))). But the district court did not instruct the jury to the
contrary. Instead, the court instructed the jury that a
deportation order is insufficient, by itself, to establish
alienage, but that Gonzalez’s prior deportation in combination
with his prior admissions “may establish alienage.” This was
a correct statement of the law. See United States v. Galindo-
Gallegos, 244 F.3d 728, 732 (9th Cir. 2001) (“A defendant’s
admissions that he is an alien, together with a deportation
order, suffice to establish alienage.”), amended on other
grounds, 255 F.3d 1154 (9th Cir. 2001).
Gonzalez’s argument that the jury should have been
prohibited from relying on his prior deportation order at all
has no support in the law. He cites United States v. Medina,
236 F.3d 1028, 1030-31 (9th Cir. 2001), but that case merely
confirms a deportation order alone cannot establish alienage.
See id.; see also United States v. Sandoval-Gonzalez,
642 F.3d 717, 722 n.4 (9th Cir. 2011) (interpreting Medina to
hold a deportation order “may be considered only as relevant,
but not conclusive, evidence” of alienage). The district court
therefore did not misstate the law in its jury instruction.3
3
The government argues Gonzalez waived this issue because he jointly
proposed a jury instruction that was materially indistinguishable from the
one given. See United States v. Hui Hsiung, 778 F.3d 738, 748 (9th Cir.
2015). Alternatively, the government contends we should review the jury
instruction for plain error because Gonzalez did not object to it in the
district court. See United States v. Armstrong, 909 F.2d 1238, 1243–44
(9th Cir. 1990). We decline to address these arguments because, assuming
the issue was properly preserved for appeal, the district court’s jury
instruction clearly was not erroneous.
UNITED STATES V. GONZALEZ-CORN 15
IV. CONCLUSION
We hold a conviction for possession with intent to
distribute marijuana under 21 U.S.C. § 841(b)(1)(D) that
results in a sentence exceeding one year constitutes a “felony
punishable under the Controlled Substances Act.” 18 U.S.C.
§ 924(c)(2). As such, it is by definition an aggravated felony
under the Immigration and Nationality Act. Gonzalez’s
deportation order, therefore, did not violate his due process
rights and could properly serve as a predicate element of his
illegal reentry conviction under 8 U.S.C. § 1326(a).
Additionally, the district court properly instructed the jury
that it could infer Gonzalez’s alienage from his prior
deportation order in combination with his admissions
regarding his alienage.
AFFIRMED.