Sunday, October 05, 2014

Case o' The Week: Better Late than Never - Aguilera-Rios and Waiver of Fed. R. Crim. Pro. 12(b)(3) arguments

   Should a defendant be convicted for illegal reentry, when he actually had a legal right to be in the States and not be removed?
  The government things so.
  The Ninth, happily, does not.
United States v. Aguilera-Rios, 2014 WL 4800292 (9th Cir. Sept. 23, 2014), Ord. & Amend. Opinion, decision available here.

The Hon. Judge Marsha Berzon
Players: Decision by Judge Berzon, joined by Judge Pregerson and visiting Judge Murphy. Big win for Ass’t Federal Defender Kara Hartzler, Federal Defenders of San Diego, Inc.  

Facts: Aguilera-Rios was a LPR convicted of Cal. Penal Code § 120121(c)(1). Id. at *1. He appeared before an IJ, who found him “subject to removal as charged.” Aguilera-Rios was then removed to Mexico. Id. He was later charged with attempted entry after deportation. Id. He moved to dismiss the indictment, challenging the earlier removal proceedings. Id. That motion was denied, he was convicted, sentenced, and removed. Id. After the defense filed the opening brief on appeal, the Supreme Court decided Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Id. In Moncrieffe, the Court addressed a government argument and opined that a gun law that lacks an antique weapons exception will be deemed to fail the categorical inquiry. Id. Aguilera then successfully moved the Ninth to file a substitute brief. Id.

Issue(s): “[Aguilera] contends that his prior removal order was invalid because his conviction under Cal. Penal Code § 120121(c)(1) was not a categorical match for the . . .  INA firearms offense [because it lacked an antique firearm exception].” Id.

Held: “We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.” Id.

Of Note: The core substantive holding of Aguilera-Rios is that these types of California gun convictions are not a categorical match for the federal firearms ground of removal. Id. at *6. To get there, however, Judge Berzon must negotiate several government beefs. One holding of particular note rejects the government’s complaint that the defense didn’t raise the Moncrieffe argument in the district court (before Moncrieffe was decided!) Id. at *2-*3. In what looks like a rule of first impression, the Ninth holds that a change in intervening law can constitute good cause to avoid a waiver of an argument under Federal Rule of Criminal Procedure 12(b)(3). Id. at *2-*3. That’s a very handy concept, so here it is again: it can be “good cause” to avoid waiver of an argument on appeal, when that argument was not raised in the district court under Rule 12(b)(3), if there was an intervening change in law.

How to Use: Aguilera-Rios is not all peaches and cream – it merits a close read, for its illegal reentry holdings. Judge Berzon spends much time distinguishing previous Circuit decisions that had held a change of law was not retroactive when considering an IJ’s duty to advice of discretionary relief. Id. at *4-*5. However, she also seems to veer from district court decisions that had held that any post-removal substantive interpretation of crime of violence or the aggravated felony provision is fully retroactive on collateral review. Id. at *4 (collecting DJ decisions). It is a nuanced holding that needs close analysis before citing for broad propositions.
For Further Reading: On October 1, 2014, S.F. Magistrate Judge Maria-Elena James ordered disclosure of techniques used by the government to track an individual’s location through triggerfish or stingray devices. See article here. Her order on this ACLU FOIA litigation can be found here. 
  As Judge James frames it, “The issue in this case is whether the EOUSA properly withheld templates and certain pages of a power point presentation as attorney work product under Exemption (b)(5), and whether the Criminal Division properly withheld memoranda and records maintained on a DOJ intranet site pursuant to Exemption 5, (attorney work product) and 7(E) (release would risk circumvention of the law).” Id. at pg. 7. 
  The Fourth Amendment ramifications of cell tracking are squarely in our litigation cross-hairs: look for these FOIA docs from the ACLU’s righteous litigation in support of these efforts.

Image of the Hon. Judge Berzon from Image of the Honorable Magistrate Judge Maria Elena James from

Steven Kalar, Federal Public Defender N.D. Cal FPD Website at


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Anonymous Anonymous said...

The government things so?

Tuesday, October 07, 2014 3:46:00 AM  

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