NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50061
Plaintiff - Appellee, D.C. No. 3:12-cr-01925-AJB-1
v.
MEMORANDUM*
ADRIAN ESPINOZA-ESTRADA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted January 10, 2014
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
Adrian Espinoza-Estrada appeals his conviction under 8 U.S.C. § 1326 for
attempted illegal reentry following removal. Espinoza-Estrada collaterally attacks
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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the 1998 removal order underlying his conviction. See 8 U.S.C. § 1326(d). We
reverse and remand with instructions to dismiss the indictment.
The Government does not dispute that if Espinoza-Estrada was not
removable as charged in 1998, he has satisfied his burden under § 1326(d). The
Government argues only that he has waived the issue. We reject the Government’s
waiver argument. We have discretion to consider an issue not raised below when it
“is purely legal, and the other party would not be prejudiced.” Engquist v. Or.
Dep’t of Agric., 478 F.3d 985, 996 n.5 (9th Cir. 2007). Although Espinoza-Estrada
did not argue before the district court that he was not removable as charged, the
issue is purely legal and was clearly argued in his opening brief. The Government
had a full and fair opportunity to respond, and it has not shown any way in which it
was prejudiced by Espinoza-Estrada’s failure to raise the issue below. See United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).
We agree with Espinoza-Estrada that he was not removable as charged. See
United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). Espinoza-
Estrada was removed on the basis of his 1997 conviction for misdemeanor
domestic battery in violation of California Penal Code §§ 242 and 243(e)(1). As
we later held in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), that
offense is not categorically a “crime of violence” authorizing removal under 8
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U.S.C. § 1227(a)(2)(E)(i). Ortega-Mendez, 450 F.3d at 1016–18. Espinoza-
Estrada therefore was not removable on the basis of his 1997 domestic battery
conviction. See Camacho-Lopez, 450 F.3d at 930. That is true regardless of the
fact that we decided Ortega-Mendez after his removal proceedings. See id. at
929–30 (applying a subsequent decision to collateral review of an underlying
removal proceeding); accord United States v. Cervantes-Gonzales, 238 F. App’x
278, 280 (9th Cir. 2007).
REVERSED and REMANDED.
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