Case o' The Week: Gov't Hoisted by A.G.'s Petard - Aguilera-Rios and Categorical Analysis
Not in the Ninth. United States v. Aguilera-Rios, 2014 WL 2723766, *5 (9th Cir. June 17, 2014), decision available here.
Players: Great decision by Judge Berzon, joined by Judge Pregerson and visiting 10th Circuit Judge Murphy. Very nice win for AFD Kara Hartlzer, Federal Defenders of San Diego.
Facts: Aguilera-Rios was an LPR. Id. at *1. He was convicted of Cal. Penal Code § 12021(c)(1), “unlawful firearms activity,” and was brought before an Immigration Judge, and was removed. Id. Considering the firearm conviction an aggravated firearms felony offense, the IJ did not advice Aguilera-Rios of the opportunity to seek voluntary departure. Id. Aguilera-Rios was later caught at the border and charged with attempted entry after deportation. Id. He moved to dismiss the indictment under 8 USC § 1326(d), arguing he had not been properly advised of the voluntary departure option. Id. Between that IJ hearing, and this § 1326(d) motion, the Supreme Court had decided Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). In Moncrieffe, the Attorney General had used the specter of the absence of an “antique firearms exception” in a state gun statute as an argument against a categorical analysis of a marijuana statute. The A.G. lost in Moncrieffe. Aguilera-Rios’s motion was denied.
Issue(s): “[Aguilera-Rios] contends that his prior removal order was invalid because his conviction under California Penal Code § 1202(c)(1) was not a categorical match for the federal firearms aggravated felony.” Id. at *1. “Aguilera’s central contention is that the generic ‘federal definition of a ‘firearm’ specifically exempts antique firearms, while the California definition of firearm does not. Thus, a person may be convicted under California Penal Code § 12021 for conduct that does not fall within the firearm grounds for removal.” Id. at *3.
Held: “We agree.” Id. at *1. “A state statute that allows conviction for offenses using antique firearms would therefore not equate to the § 1227(a)(2)(C) aggravated felony offense.” Id. at *8.
Of Note: This is obviously an important holding for Section 1326 cases, where the client has a California § 12021 prior. Judge Berzon’s opinion, however, is packed with other gems as well. One valuable holding concerns retroactive application. Id. at *3-*4. In a careful analysis, Judge Berzon explains why the Supreme Court’s decision in Moncrieffe (and the downstream impact of the A.G.’s argument) does apply retroactively to the IJ’s decision to remove Aguilera-Rios. To refuse to do so, in this context would mean that “[s]uch an individual is in effect being criminally punished for the government’s legal mistake.” Id. at *5.
How to Use: This motion to dismiss the indictment before trial falls under Fed. R. Crim. Proc. 12(b)(3)(B). Id. at *2. Because Aguilera-Rios didn’t argue Moncrieffe in his 12(b) motion, the government argued it was waived on appeal. Id. The Ninth “decline[d] to find such a waiver here.” Id. This 12(b) / waiver holding appears to be a decision of first impression in the Ninth – add this to your appellate practice arsenal, when the government alleges that a legal argument in support of a motion to dismiss wasn’t made in the district court. Be forewarned, though: Judge Berzon’s holding is fact specific, and appellate counsel here showed great diligence in submitting a substitute brief soon after Moncrieffe was decided. Id. at *3.
For Further Reading: Moncrieffe = strict categorical analysis = good for defense. Judge Berzon rejects the government’s attempt to squirrel around this analysis by labelling aspects of a statute, “definitional elements.” Id. at *8. Good stuff -- this concept of strict reading has broader application for other categorical analysis fights. For a thoughtful (albeit, pre-Descamps) discussion of the Moncrieffe decision, see article here.
Image of Judge Berzon from http://i1.ytimg.com/vi/t2GGdVTMnPs/hqdefault.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org