FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-50204
v. D.C. No.
3:08-cr-02509-
RAUL VILLAVICENCIO-BURRUEL, IEG-1
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-50257
Plaintiff-Appellant, D.C. No.
v. 3:08-cr-02509-
RAUL VILLAVICENCIO-BURRUEL, IEG-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
March 2, 2010—Pasadena, California
Filed June 14, 2010
Before: William C. Canby, Jr., Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould
8711
8714 UNITED STATES v. VILLAVICENCIO-BURRUEL
COUNSEL
Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Mark R. Rehe (argued), Mark Conover, Assistant United
States Attorneys, United States Attorney’s Office, San Diego,
California, for plaintiff-appellee and cross-appellant the
United States of America.
Kristi A. Hughes, Federal Defenders of San Diego, Inc., San
Diego, California, for defendant-appellant and cross-appellee
Raul Villavicencio-Burruel.
OPINION
GOULD, Circuit Judge:
Raul Villavicencio-Burruel (“Villavicencio”) was ordered
removed in 2006 after proceedings before an immigration
judge (“IJ”). After his removal, however, Villavicencio
returned to the United States without permission. In 2008,
Villavicencio was indicted for illegal reentry following depor-
tation in violation of 8 U.S.C. § 1326, and for making false
claims that he had United States citizenship in violation of 18
U.S.C. § 911. He was convicted and sentenced to thirty-three
months in custody and three years of supervised release. Vil-
lavicencio appeals his conviction and the government cross-
appeals the sentence. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm the conviction, vacate the sentence, and
remand for resentencing.
I
In April 2006, Raul Villavicencio was ordered removed to
Mexico by an IJ. The IJ ordered Villavicencio removed on the
grounds that: (1) a 1999 conviction for spousal battery under
California Penal Code section 243(e)(1) was a conviction for
UNITED STATES v. VILLAVICENCIO-BURRUEL 8715
a crime of domestic violence, making him removable under
8 U.S.C. § 1227(a)(2)(E)(i); and (2) a 2004 conviction for
violating a court protection order under California Penal Code
section 273.6(a) was a conviction for violating a protection
order that involved threats of violence, making him remov-
able under 8 U.S.C. § 1227(a)(2)(E)(ii). The IJ determined
that, because of a 2005 conviction for making criminal threats
under California Penal Code section 422, which the IJ deter-
mined to be an aggravated felony, Villavicencio was not eligi-
ble for relief of cancellation of removal, voluntary departure,
or adjustment of status.
In the process of reaching his conclusions that Villavicen-
cio should be removed and was not eligible for the relief
sought, the IJ explained to a group of aliens including Villavi-
cencio that each alien had the right to appeal, stating, “if you
do not like the decisions we make, there is a higher court that
is called the BIA that reviews the decisions of IJs like myself”
but “[o]nce you’ve waived your right to appeal . . . , you can-
not appeal that decision in the future.” Villavicencio, through
counsel, twice reserved his right to appeal. The IJ’s removal
order similarly recited that Villavicencio had reserved the
right to appeal. But no appeal to the BIA was thereafter pur-
sued. Villavicencio was removed to Mexico on May 2, 2006.
Villavicencio was indicted in July 2008 on one count of
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326 on the basis of Villavicencio’s prior removal to Mex-
ico in 2006, and one count of making a false claim to United
States citizenship in violation of 18 U.S.C. § 911. Villavicen-
cio filed a motion to dismiss the indictment, contesting the
validity of the prior removal on due-process grounds. He
argued that neither offense relied on by the IJ was a remov-
able offense. Not having appealed the IJ’s removal order to
the BIA, Villavicencio argued that he should be excused from
8 U.S.C. § 1326(d)’s exhaustion requirement due to ineffec-
tiveness of his counsel and because the government could not
show that Villavicencio validly waived his right to appeal. He
8716 UNITED STATES v. VILLAVICENCIO-BURRUEL
also argued that he was prejudiced by being improperly
removed. The district court concluded that Villavicencio did
not exhaust his administrative remedies and could not show
prejudice. The district court therefore denied the motion to
dismiss the indictment on those bases.
At trial, the government called Immigration and Customs
Enforcement Agent Patricia Vargas, the custodian for Villavi-
cencio’s immigration file, as a witness. Through Agent Var-
gas, the government introduced a warrant of removal from
Villavicencio’s file. Villavicencio objected to the warrant’s
admission on the basis that it violated his rights under the
Confrontation Clause because Agent Vargas had neither pre-
pared the warrant of removal nor observed personally Villavi-
cencio’s removal. Over Villavicencio’s objection, the district
court admitted the warrant of removal. Villavicencio was con-
victed on both counts.
At sentencing, the government sought a sixteen-level
enhancement to the advisory United States Sentencing Guide-
lines (“USSG”) calculation pursuant to USSG § 2L1.2 on the
ground that Villavicencio’s prior conviction under California
Penal Code section 422 for making criminal threats was a
conviction for a categorical crime of violence. Villavicencio
argued that section 422 was not categorically a crime of vio-
lence because it reached threats to property and threats to
commit crimes that were only potentially capable of causing
injury. The district court concluded that a violation of section
422 was not a crime of violence and sentenced Villavicencio
to thirty-three months in custody and three years of super-
vised release. Villavicencio’s timely appeal of his conviction
and the government’s timely cross-appeal of his sentence fol-
lowed.
II
[1] We review de novo the district court’s denial of a
motion to dismiss an indictment under 8 U.S.C. § 1326 when
UNITED STATES v. VILLAVICENCIO-BURRUEL 8717
the motion is based on an alleged deprivation of due process
in the underlying removal proceedings. United States v.
Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir. 2009). To prevail
in a collateral attack on the underlying removal order in a
motion to dismiss, Villavicencio must, as a threshold matter,
show that he exhausted his administrative remedies. 8 U.S.C.
§ 1326(d)(1); see also United States v. Ubaldo-Figueroa, 364
F.3d 1042, 1048 (9th Cir. 2004).
Villavicencio concedes that he did not exhaust his adminis-
trative remedies. Villavicencio urges us to excuse his nonex-
haustion, however, contending that due process requires that
noncompliance with § 1326(d)’s exhaustion requirement will
only bar a collateral attack on a prior removal order if the
defendant’s waiver of the administrative appeal was consid-
ered and intelligent. See Ubaldo-Figueroa, 364 F.3d at 1048;
see also United States v. Mendoza-Lopez, 481 U.S. 828,
839-40 (1987) (holding that due process requires judicial
review of the underlying deportation proceedings when
waiver of the right to appeal was not considered or intelli-
gent). Villavicencio contends that it is the government’s bur-
den to demonstrate a considered and intelligent waiver by
clear and convincing evidence, United States v. Pallares-
Galan, 359 F.3d 1088, 1097 (9th Cir. 2004), and that the gov-
ernment cannot meet this burden because there is no evidence
in the record that Villavicencio understood his right to appeal
and waived it. Villavicencio argues that his counsel’s decision
not to pursue an appeal cannot be attributed to a considered
and intelligent decision made by Villavicencio.1
1
Villavicencio also contends that his counsel’s alleged ineffectiveness
in not appealing the IJ’s removal order requires that Villavicencio be per-
mitted to collaterally attack the prior removal order despite his noncompli-
ance with § 1326(d)’s exhaustion requirement. This argument raises the
question of whether the logic of Mendoza-Lopez and its progeny extend
to nonexhaustion due to ineffective assistance of counsel, requiring that a
defendant be permitted to collaterally attack the underlying removal order
in such a case. We do not decide this issue because Villavicencio has not
8718 UNITED STATES v. VILLAVICENCIO-BURRUEL
[2] Villavicencio’s waiver argument does not follow, and
fails to persuade us. Villavicencio never waived his right to
appeal to the BIA at all; rather, his counsel expressly reserved
that right twice during the removal hearing but declined to
exercise that right before expiration of the time to appeal. See
8 C.F.R. § 1003.39 (“Except when certified to the Board, the
decision of the Immigration Judge becomes final upon waiver
of appeal or upon expiration of the time to appeal if no appeal
is taken[,] whichever occurs first.” (emphasis added)). The IJ
instructed Villavicencio that “if you want to appeal your deci-
sion you must . . . reserve your right to appeal. Once you’ve
waived your right to appeal . . . , you cannot appeal that deci-
sion in the future.” The IJ later asked counsel, “So you’re
going to reserve appeal[?]” to which counsel responded, “Yes
we will.” The IJ’s removal order was annotated to reflect that
Villavicencio had not waived his right appeal: the word
“waived” was crossed out from the phrase “Appeal: Waived,”
and “Reserved by Alien” was handwritten directly below. In
light of Villavicencio’s and his counsel’s unmistakable
actions during the removal proceedings, we cannot conclude,
as Villavicencio urges, that his and his counsel’s actions were
tantamount to Villavicencio waiving his appeal rights, much
less that there was an ineffective waiver.2 Because Villavicen-
demonstrated ineffective assistance of counsel on this record. Villavicen-
cio introduced neither an affidavit nor any record evidence detailing the
purportedly ineffective acts of his counsel. Villavicencio’s conclusory,
equivocal statement in his brief that “it is likely that . . . counsel failed to
[pursue an appeal] because of ineffectiveness,” (emphasis added), is insuf-
ficient under the “highly deferential” standard of review to “overcome the
presumption that, under the circumstances, the [decision not to pursue an
appeal] might be considered sound . . . strategy.” See Torres-Chavez v.
Holder, 567 F.3d 1096, 1101 (9th Cir. 2009) (quoting Strickland v. Wash-
ington, 466 U.S. 668, 689 (1984)).
2
Villavicencio cites United States v. Perez, 330 F.3d 97 (2d Cir. 2003),
for the proposition that when a right is abandoned because of unauthorized
actions (or, more accurately, inactions) of counsel, waiver does not occur.
See id. at 101-03. But in Perez, counsel stated at the deportation hearing
UNITED STATES v. VILLAVICENCIO-BURRUEL 8719
cio did not comply with § 1326(d)(1)’s exhaustion require-
ment, and his waiver argument is inapposite and does not
excuse the nonexhaustion, we hold that Villavicencio may not
collaterally attack the unexhausted removal order.
III
[3] We review alleged violations of the Confrontation
Clause de novo. See United States v. Tuyet Thi-Bach Nguyen,
565 F.3d 668, 673 (9th Cir. 2009). Villavicencio argues that
the warrant of removal is testimonial and that the govern-
ment’s reliance on the warrant to prove that Villavicencio was
physically removed from the United States violated his consti-
tutional right to confront an adverse witness. We have previ-
ously held that a warrant of removal is nontestimonial and
that its admission therefore does not violate the Confrontation
Clause. E.g., United States v. Bahena-Cardenas, 411 F.3d
1067, 1075 (9th Cir. 2005). Villavicencio contends that
Bahena-Cardenas and its antecedents were abrogated by the
Supreme Court’s decision in Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527 (2009), which held that “certificates of analy-
sis” stating that a tested substance was cocaine were testimo-
nial and could not be admitted without cross-examination of
the document’s author. Id. at 2531-32, 2540. We disagree that
Melendez-Diaz abrogates Bahena-Cardenas. In United States
v. Orozco-Acosta, ___ F.3d ___, No. 09-50192, 2010 WL
2089474 (9th Cir. May 26, 2010), we reaffirmed, in light of
Melendez-Diaz, that warrants of removal are nontestimonial.
Id. at *3-5. Our panel is bound by our circuit’s precedent in
that he “would file” an application for relief and then failed to do so in a
timely fashion without informing his client, thus failing to act as compe-
tent counsel. See id. at 102. Here, Villavicencio’s attorney reserved a right
of appeal on his client’s behalf, but did not state that she would file an
appeal. Because the record is silent on whether Villavicencio authorized
or directed his attorney to file an appeal, we cannot conclude that the attor-
ney exceeded her authority or failed to act as competent counsel by not
pursuing an appeal.
8720 UNITED STATES v. VILLAVICENCIO-BURRUEL
Orozco-Acosta. We therefore hold that the admission of the
warrant of removal at Villavicencio’s trial did not violate his
Confrontation Clause rights. Accordingly, his conviction
stands.
IV
We next address the government’s cross-appeal of the sen-
tence.3 The government in its cross-appeal contends that the
district court erred by concluding that Villavicencio’s convic-
tion for making criminal threats under California Penal Code
section 422 is not categorically a conviction for a “crime of
violence” within the meaning of USSG § 2L1.2. Thus, the
controlling issue for purposes of the cross-appeal is whether
section 422 is a “crime of violence” under USSG § 2L1.2.
To decide this issue we apply the categorical analysis set
forth in Taylor v. United States, 495 U.S. 575, 602 (1990).
See United States v. Becerril-Lopez, 541 F.3d 881, 890 (9th
Cir. 2008). Under Taylor’s categorical approach, “in order for
a violation of the state statute to qualify as a predicate offense,
the full range of conduct covered by the state statute must fall
within the scope of the federal statutory provision.” United
States v. Laurico-Yeno, 590 F.3d 818, 821 (9th Cir. 2010)
(internal quotation marks and alteration omitted). To demon-
strate that the predicate offense criminalizes conduct outside
of the generic definition of a crime of violence, a defendant
“must at least point to his own case or other cases in which
the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007).
[4] The United States Sentencing Guidelines provide for a
sixteen-level enhancement if “the defendant previously was
3
We review de novo a district court’s determination that a convicted
crime is not a categorical “crime of violence” under USSG § 2L1.2. See
United States v. Cortez-Arias, 403 F.3d 1111, 1114 & n.7 (9th Cir. 2005).
UNITED STATES v. VILLAVICENCIO-BURRUEL 8721
deported . . . after . . . a conviction for a felony that is . . . a
crime of violence.” USSG § 2L1.2(b)(1)(A)(ii). The com-
ments to the Guidelines explicitly define “crime of violence”
to include any offense “that has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” USSG § 2L1.2 cmt. n.1(B)(iii). The
United States Supreme Court has clarified that “ ‘physical
force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States, 130 S. Ct. 1265, 1270-72 (2010) (construing “physical
force” as used in 18 U.S.C. § 924(e)(2)(B)(i)). The threatened
force required of the predicate crime must therefore be a
threat of violent force. Id.
California Penal Code section 422 provides:
Any person who willfully threatens to commit a
crime which will result in death or great bodily
injury to another person, with the specific intent that
the statement, made verbally, in writing, or by means
of an electronic communication device, is to be
taken as a threat, even if there is no intent of actually
carrying it out, which, on its face and under the cir-
cumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey
to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and
thereby causes that person reasonably to be in sus-
tained fear for his or her own safety or for his or her
immediate family’s safety, shall be punished by
imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison.
Cal. Penal Code § 422 (emphasis added).
[5] Section 422’s plain text demonstrates that it requires a
threatened use of violent physical force against another per-
son. Specifically, section 422’s text requires: (1) a “threat[ ]
8722 UNITED STATES v. VILLAVICENCIO-BURRUEL
to commit a crime which will result in death or great bodily
injury,” (2) made with “specific intent that the statement . . .
be taken as a threat,” (3) which conveys “an immediate pros-
pect of execution,” (4) thereby causing a victim “to be in sus-
tained fear for his or her own safety or for his or her
immediate family’s safety,” and (5) that the victim’s fear is
“reasonabl[e].” Id.; see also People v. Maciel, 6 Cal. Rptr. 3d
628, 632 (Cal. Ct. App. 2003) (explaining that to prove a vio-
lation of section 422, the prosecution must establish these ele-
ments). Resting on the plain language of the California
statute, we conclude that section 422’s elements necessarily
include a threatened use of physical force “capable of causing
physical pain or injury to another person.” Johnson, 130 S. Ct.
at 1271.
Villavicencio nevertheless argues that section 422 is not
categorically a crime of violence under USSG § 2L1.2
because section 422 reaches threats to property.4 We are not
persuaded. A threat to damage property or to commit a crime,
without more, cannot meet the subjective- and objective-
intent elements required of section 422. See Maciel, 6 Cal.
Rptr. 3d at 632 (explaining that “[a] violation of . . . section
422 requires the defendant to willfully threaten to kill or seri-
ously injure another person” and that the victim must construe
the threat as one to life or limb (alterations omitted)).5
Villavicencio relies on People v. Martinez, 62 Cal. Rptr. 2d
303 (Cal. Ct. App. 1997), which he argues carries his burden
under Duenas-Alvarez of showing a case in which a Califor-
4
In light of Villavicencio’s present contention, our conclusion in
Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003), that sec-
tion 422 is categorically a crime of violence under 18 U.S.C. § 16(a) is not
dispositive here because § 16(a), unlike§ 2L1.2, defines crimes of violence
to include threats of force against property.
5
Villavicencio’s reliance on United States v. Narvaez-Gomez, 489 F.3d
970 (9th Cir. 2007), is misplaced. Unlike the crime of discharging a fire-
arm at issue there, which requires only reckless conduct, see id. at 977,
section 422 requires a “willful[ ]” threat.
UNITED STATES v. VILLAVICENCIO-BURRUEL 8723
nia court convicted a defendant under section 422 for threat-
ening property. Villavicencio misconstrues Martinez.
Although the Martinez defendant actually did damage prop-
erty after making threats to blow up his girlfriend’s car and
home, the court rested its decision on its conclusion that these
threats were designed to, and did, cause the victims to fear for
their lives and safety. See id. at 304-05, 308-09. Where there
is a threat to destroy property in a way that can likely cause
death or serious physical injury to a person, such as a threat
to blow up a person’s home or business during a time when
the person might be there, such a threat is not merely a threat
to destroy property—it is a threat to injure the person who
may be present when the attack is made on the property.
Some threats to property will not raise issues of threatened
harm to individuals, but here the statute specifically requires
that there is a threatened result of death or great bodily injury.6
[6] Evaluating the plain text of section 422, and having
found no case where the application of section 422 was incon-
sistent with the generic definition of a crime of violence, we
hold that a conviction for making a criminal threat under sec-
tion 422 is categorically a conviction for a crime of violence
under USSG § 2L1.2.
V
Villavicencio’s conviction is AFFIRMED, his sentence is
VACATED, and the matter is REMANDED for resentencing
consistent with this opinion.
6
That section 422 embraces threats to kill or injure a person indirectly
through destruction of property is not inconsistent with section 422 being
a categorical crime of violence because the force threatened need not be
force administered directly by the hands of the perpetrator. See United
States v. De La Fuente, 353 F.3d 766, 771 (9th Cir. 2003) (holding that
the district court did not plainly err by concluding that a threat of anthrax
poisoning satisfies 18 U.S.C. § 16(a)’s threatened use of physical force
requirement because “the bacteria’s physical effect on the body is no less
violently forceful than the effect of a kick or blow”).