United States v. Jose Valdivia-Flores

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50384
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-03700-BAS-1

JOSE ALEJANDRO VALDIVIA-
FLORES, AKA Francisco Cruz- OPINION
Mendoza,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted November 10, 2016
Pasadena, California

Filed December 7, 2017

Before: Diarmuid F. O’Scannlain and Johnnie B.
Rawlinson, Circuit Judges, and Rosemary Marquez, *
District Judge.

*
The Honorable Rosemary Marquez, United States District Judge
for the District of Arizona, sitting by designation.
2 UNITED STATES V. VALDIVIA-FLORES

Opinion by Judge O’Scannlain;
Special Concurrence by Judge O’Scannlain;
Dissent by Judge Rawlinson

SUMMARY **

Criminal Law

The panel reversed a criminal judgment, and remanded,
in a case in which the defendant, who was convicted of
attempted reentry of a removed alien, contended that his
2009 removal was invalid because his 1997 drug trafficking
conviction under Wash. Rev. Code § 69.50.401 was
incorrectly determined to be an aggravated felony.

The panel held that the defendant’s waiver of the right to
seek judicial review of the removal order was not considered
and intelligent, where the Notice of Intent to Issue a Final
Administrative Removal Order suggested the defendant
could contest removability only on factual grounds, the
defendant was not represented, and the defendant never had
the benefit of appearing before an immigration judge despite
his request for a hearing.

The panel held that the Washington drug trafficking
statute is overbroad compared to its federal analogue
because the former has a more inclusive mens rea
requirement for accomplice liability. The panel held that
under a straightforward application of the categorical

**
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. VALDIVIA-FLORES 3

approach, the defendant’s conviction therefore cannot
support an aggravated felony determination. Because under
Washington law a jury need not agree on whether a
defendant is a principal or accomplice, the panel held that
the Washington drug trafficking statute is not divisible so far
as the distinction between those roles is concerned. The
panel held that the modified categorical approach therefore
may not be applied, and it was error for the district court to
do so.

The panel concluded that the defendant was,
accordingly, prejudiced from his inability to seek judicial
review for his 2009 removal, and that his collateral attack
pursuant to 8 U.S.C. § 1326(d) on the underlying deportation
order should have been successful.

Specially concurring, Judge O’Scannlain wrote
separately to highlight how the result in this case illustrates
the bizarre and arbitrary effects of the ever-spreading
categorical approach for comparing state law offenses to
federal criminal definitions.

Dissenting, Judge Rawlinson wrote that the majority has
impermissibly veered away from the statute of conviction to
find overbreadth based on its analysis of a statute that was
not part of the prosecution or conviction in this case.
4 UNITED STATES V. VALDIVIA-FLORES

COUNSEL

Ellis M. Johnston III (argued), San Diego, California, for
Defendant-Appellant.

Helen H. Hong (argued), Assistant United States Attorney;
Lindsey A. Forrester Archer, Special Assistant United States
Attorney; Peter Ko, Chief, Appellate Section, Criminal
Division; United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.

OPINION

O=SCANNLAIN, Circuit Judge:

We must decide whether a conviction for possession of
a controlled substance with intent to distribute under
Washington state law is an aggravated felony for purposes
of federal immigration law.

I

Jose Valdivia-Flores is a Mexican citizen who entered
the United States without inspection in 1995. In 1997, he
was charged with and ultimately pled guilty to a violation of
Washington’s drug trafficking statute, Wash. Rev. Code
§ 69.50.401. In his Statement of Defendant on Plea of
Guilty, Valdivia-Flores described the crime he was being
charged with as: “possession with intent to deliver—
Heroin.” He also wrote out the elements of the crime:
“Possess a controlled substance (heroin) with intent to
distribute it in King County and know it was a narcotic
drug.” Finally, stating what made him guilty of Wash. Rev.
Code § 69.50.401 in his own words, Valdivia-Flores wrote:
“On June 20, 1997 in King County WA I did unlawfully
 UNITED STATES V. VALDIVIA-FLORES 5

possess with intent to deliver Heroin a controlled substance
and did know it was a controlled substance.” Valdivia-
Flores was sentenced to 21 months’ imprisonment, which he
served at an accelerated pace over seven months at a work
ethic camp.

While he was in the camp, immigration officers prepared
a Notice to Appear which charged Valdivia-Flores with
being removable. In an order dated January 28, 1998, an
immigration judge suspended the immigration proceedings
because Valdivia-Flores was still serving his sentence at the
camp and therefore could not be produced for a hearing.
Nonetheless, at the conclusion of his sentence in April 1998,
immigration officers physically removed Valdivia-Flores to
Mexico without an order. Valdivia-Flores returned to the
State of Washington that same year, again without
inspection at the border.

In 2009, Valdivia-Flores was convicted of malicious
mischief in the third degree in violation of Wash. Rev. Code
§ 9A.48.090 for smashing the windshield of his wife’s
vehicle after an argument. He pled guilty, and his sentence
was suspended. At the time of that prosecution, the
Department of Homeland Security initiated administrative
removal proceedings pursuant to 8 U.S.C. § 1228(b). In
March 2009, he received two copies of a form, one in
English and one in Spanish, titled Notice of Rights and
Request for Disposition. This notice informed Valdivia-
Flores that he had “the right to a hearing before the
Immigration Court to determine whether [he] may remain in
the United States.” Valdivia-Flores filled out and signed the
Spanish version of the form, electing to request a hearing
before the Immigration Court.

Also in March 2009, the Department of Homeland
Security issued Valdivia-Flores a Notice of Intent to Issue a
6 UNITED STATES V. VALDIVIA-FLORES

Final Administrative Removal Order (“Notice of Intent”). It
stated that Valdivia-Flores’s 1997 conviction under Wash.
Rev. Code § 69.50.401(a) was for an aggravated felony so
that he was removable without a hearing before an
immigration judge. The Notice of Intent informed Valdivia-
Flores of his right to petition for review of his removal in the
appropriate U.S. Circuit Court of Appeals. It also provided
three check-boxes of options by which Valdivia-Flores
could “contest [his] deportability”: (1) he could assert that
he was “a citizen or national of the United States”; (2) he
could assert that he was “a lawful permanent resident”; and
(3) he could claim that he was “not convicted of the criminal
offense described” in the Notice of Intent. Valdivia-Flores
did not contest his removal or request withholding of
removal and instead checked a box acknowledging that he
had “the right to remain in the United States for 14 calendar
days in order to apply for judicial review” and that he
“waive[d] this right.” He did not petition for review of the
removal decision and was removed on April 4, 2009. He
remained in Mexico for a few days and then unlawfully
reentered the United States for a third time.

On August 13, 2013, Valdivia-Flores was arrested in
Washington for being an illegal alien found in the United
States, in violation of 8 U.S.C. § 1326. He pled guilty and
was convicted in the Western District of Washington in
September 2013. Immigration authorities once again
initiated removal proceedings. Valdivia-Flores requested
asylum and sought a stay of removal “for humanitarian
reasons,” but those requests were denied, and Valdivia-
Flores was removed in September 2014.

On November 13, 2014, Valdivia-Flores attempted to
return (for a fourth time) to the United States, applying for
entry through the pedestrian lanes at the San Ysidiro,
 UNITED STATES V. VALDIVIA-FLORES 7

California port of entry. Valdivia-Flores falsely identified
himself as another person and presented a false and
fraudulent United States Certification of Naturalization. He
was charged with one count of attempted reentry of a
removed alien in violation of 8 U.S.C. § 1326 and one count
of fraudulent use of an immigration document in violation of
18 U.S.C. § 1546.

Prior to trial, Valdivia-Flores brought a collateral attack
against the validity of his 2009 order of removal and moved
to dismiss the attempted reentry count of the indictment.
The district court denied the motion to dismiss because
Valdivia-Flores “did in fact admit in his plea agreement to
committing a drug trafficking offense, which is an
aggravated felony.”

The parties then entered into a stipulation in which
Valdivia-Flores agreed to facts satisfying all the elements of
both counts in the indictment. Based on those stipulated
facts, following a bench trial the district court found
Valdivia-Flores guilty of both charges and sentenced him to
21 months’ imprisonment on both counts, running
concurrently.

Valdivia-Flores filed this timely appeal and seeks to
challenge collaterally the classification of his underlying
Washington state conviction as an aggravated felony. 1

1
“We review the district court’s denial of a motion to dismiss an
indictment brought pursuant to 8 U.S.C. § 1326(d) de novo.” United
States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015) (citation
omitted). Whether a crime constituted an aggravated felony is a question
of law reviewed de novo. See Wang v. Rodriguez, 830 F.3d 958, 960
(9th Cir. 2016).
8 UNITED STATES V. VALDIVIA-FLORES

II

Valdivia-Flores contends that because his 1997
conviction was incorrectly determined to be an aggravated
felony, his 2009 removal was invalid. If the 2009 removal
was invalid, that “precludes reliance on th[at] deportation”
in the subsequent illegal reentry prosecution. United States
v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010). Valdivia-
Flores’s collateral attack is governed by 8 U.S.C. § 1326(d),
which allows such an attack to succeed if Valdivia-Flores
can demonstrate that (1) he exhausted the administrative
remedies available for seeking relief from the predicate
removal order; (2) the removal proceedings improperly
deprived him of the opportunity for judicial review; and
(3) the removal order was fundamentally unfair. 8 U.S.C.
§ 1326(d). The first two prongs of § 1326(d) are satisfied if
his right to appeal was denied in violation of due process.
United States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014).

Valdivia-Flores contends that his due process rights were
indeed violated because “immigration officials failed to
obtain a knowing waiver of” his right to appeal the removal
order. Gomez, 757 F.3d at 893. “In order for [a] waiver to
be valid . . . it must be both considered and intelligent.”
United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)
(internal quotation marks omitted). The government
contends that Valdivia-Flores did validly waive his right to
appeal by signing the Notice of Intent, by failing to appeal,
and by freely choosing instead to return to this country
unlawfully.

Because Valdivia-Flores asserts that his waiver was not
considered and intelligent, the government must show by
clear and convincing evidence that the waiver was valid,
Ramos, 623 F.3d at 681, and it may not simply rely on the
signed document purportedly agreeing to the waiver, Gomez,
 UNITED STATES V. VALDIVIA-FLORES 9

757 F.3d at 895. Because we cannot rely on the contested
waiver document itself, we evaluate the surrounding
circumstances to determine whether the government can
overcome the presumption against waiver. See Cisneros-
Rodriguez, 813 F.3d at 756.

Here, although the Notice of Intent described the
window in which Valdivia-Flores could respond to the
charges against him or file a petition for judicial review, it
did not explicitly inform him that he could refute, through
either an administrative or judicial procedure, the legal
conclusion underlying his removability. In fact, the Notice
of Intent’s three check boxes suggested just the opposite—
that removability could only be contested on factual
grounds. The list of options available to “check off” did not
include an option to contest the classification of the
conviction as an aggravated felony, and the only check box
relevant to the conviction itself only allowed Valdivia-Flores
to contest that he “was not convicted of the criminal offense
described.”

The form’s deficiencies are magnified because Valdivia-
Flores “was not represented and never had the benefit of
appearing before an [immigration judge], who, we presume,
would have adequately conveyed both [his] appeal options
and the finality associated with waiving appeal.” Ramos,
623 F.3d at 681 (internal quotation marks omitted). Indeed,
the Notice of Intent was issued without a hearing before an
immigration judge despite Valdivia-Flores’s request for a
hearing. The government provides no evidence that an
immigration officer ever met with Valdivia-Flores to explain
the form or the issues it raised; rather, the government
merely relies on the sufficiency of the form’s text to
communicate Valdivia-Flores’s options.
10 UNITED STATES V. VALDIVIA-FLORES

Under these circumstances, we conclude that Valdivia-
Flores’s waiver of the right to seek judicial review was not
considered and intelligent. Accord Gomez, 757 F.3d at 896
(explaining that the fact that an alien signed a waiver was
insufficient to meet the government’s burden to establish a
valid waiver when the record reflected deficiencies in the
advisements given). Therefore, he was deprived of due
process and satisfies the first two prongs of 8 U.S.C.
§ 1326(d).

III

A

With a due process violation established, the next step in
Valdivia-Flores’s argument is that the 2009 removal order
“was fundamentally unfair,” so he satisfies the final prong of
8 U.S.C. § 1326(d) to succeed in his collateral attack. He
must “show that it was ‘plausible’ that he would have
received some form of relief from removal had his rights not
been violated in the removal proceedings.” Gomez, 757 F.3d
at 898 (quoting Arrieta, 224 F.3d at 1079). To meet that
burden, Valdivia-Flores argues that, had he sought judicial
review of the order, he would have prevailed in showing that
he was not convicted of an aggravated felony as alleged in
the Notice of Intent as the sole basis for his removal without
a hearing before an immigration judge. The government
disagrees and argues that Valdivia-Flores’s drug trafficking
conviction was properly classified as an aggravated felony.
We must therefore determine whether Valdivia-Flores’s
1997 conviction under Wash. Rev. Code § 69.50.401 was for
an aggravated felony.

To determine whether an offense qualifies as an
“aggravated felony,” we apply the categorical approach
articulated in Taylor v. United States, 495 U.S. 575 (1990).
 UNITED STATES V. VALDIVIA-FLORES 11

Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014).
Under the categorical approach, “we look not to the facts of
the particular prior case, but instead to whether the state
statute defining the crime of conviction categorically fits
within the generic federal definition of a corresponding
aggravated felony.” Roman-Suaste v. Holder, 766 F.3d
1035, 1038 (9th Cir. 2014) (citation and internal quotation
marks omitted).

To make his argument that the Washington drug-
trafficking law is broader than its federal analogue, Valdivia-
Flores observes that, under both the federal and state
criminal laws, a person charged with a drug trafficking
offense may be convicted either as a principal or for aiding
and abetting. Critically, he says, Washington defines aiding
and abetting more broadly than does federal law so that
Washington forbids more conduct.

The implicit nature of aiding and abetting liability in
every criminal charge is sufficiently well-settled that the
government in this case does not contest it. See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 189 (2007) (In the United
States, “every jurisdiction—all States and the Federal
Government—has expressly abrogated the distinction
among principals and aiders and abettors.”). Instead, the
government contends that Washington’s definition of aiding
and abetting liability is essentially the same as the federal
definition so that they do, in fact, match categorically.

At the time of Valdivia-Flores’s conviction,
Washington’s aiding and abetting statute stated: “A person
is an accomplice . . . in the commission of a crime if . . .
[w]ith knowledge that it will promote or facilitate the
commission of the crime, he . . . solicits, commands,
encourages, or requests such other person to commit it; or
aids or agrees to aid such other person in planning or
12 UNITED STATES V. VALDIVIA-FLORES

committing it.” Wash. Rev. Code § 9A.08.020(3)(a)(i)–(ii)
(1997) (emphasis added). In contrast, under federal law, “to
prove liability as an aider and abettor the government must
establish beyond a reasonable doubt that the accused had the
specific intent to facilitate the commission of a crime by
someone else.” United States v. Garcia, 400 F.3d 816, 819
(9th Cir. 2005) (emphasis added). Therefore, federal law
requires a mens rea of specific intent for conviction for
aiding and abetting, whereas Washington requires merely
knowledge.

Consistent with the Model Penal Code on which it is
based, Washington’s criminal law expressly codifies the
distinction between intent and knowledge and makes plain
that knowledge is a less demanding mens rea requirement.
“A person acts with intent or intentionally when he acts with
the objective or purpose to accomplish a result which
constitutes a crime.” Wash. Rev. Code § 9A.08.010(1)(a)
(1997) (emphasis added). In contrast, “[a] person knows or
acts knowingly or with knowledge when . . . (i) he is aware
of a fact, facts, or circumstances or result described by a
statute defining an offense; or (ii) he has information which
would lead a reasonable man in the same situation to believe
that facts exist which facts are described by a statute defining
an offense.” Id. § 9A.08.010(1)(b) (emphasis added).

The same distinction exists in federal law. There, “a
person who causes a particular result is said to act
purposefully”—or with specific intent—“if he consciously
desires that result . . . while he is said to act knowingly if he
is aware that that result is practically certain to follow from
his conduct, whatever his desire may be as to that result.”
United States v. Bailey, 444 U.S. 394, 404 (1980) (internal
quotation marks omitted); see also Abagninin v. AMVAC
Chem. Corp., 545 F.3d 733, 739 (9th Cir. 2008)
 UNITED STATES V. VALDIVIA-FLORES 13

(distinguishing specific intent from “mere knowledge, or
general intent”).

Therefore, the Washington drug trafficking law on its
face appears to have a more inclusive mens rea requirement
for accomplice liability than its federal analogue. The
Washington Supreme Court’s case law indicates that the
distinction between intent and knowledge is meaningful. 2
See State v. Thomas, 208 P.3d 1107, 1111 (Wash. 2009)
(“To convict an accomplice of premeditated murder in the
first degree, the State need not show that the accomplice had
the intent that the victim would be killed. The prosecution
need only prove that the defendant knew his actions would
facilitate the crime . . . .”); State v. Roberts, 14 P.3d 713,
731–32 (Wash. 2000) (“The accomplice liability statute
requires only a mens rea of knowledge . . . . [A]n
accomplice, like a felony murder defendant, may be
convicted with a lesser mens rea and a lesser actus reus than
a principal to premeditated first degree murder.”); State v.
Gocken, 896 P.2d 1267, 1273–74 (Wash. 1995) (“Criminal
conspiracy requires an element of intent, while accomplice
liability requires a lesser culpable state of knowledge.”).

B

The government’s principal response to this statutory
language and case law is to cite contrary Washington case
law that suggests accomplice liability turns on a mens rea
standard closer to intent than knowledge. E.g., In re Welfare
of Wilson, 588 P.2d 1161, 1164 (Wash. 1979) (“[I]t is the
encouragement plus the intent of the bystander to encourage

2
State statutes and the state court decisions interpreting them are
both “authoritative sources of state law.” Mathis v. United States, 136 S.
Ct. 2243, 2256 (2016).
14 UNITED STATES V. VALDIVIA-FLORES

that constitutes abetting.”); State v. Truong, 277 P.3d 74, 79–
80 (Wash. Ct. App. 2012) (“[T]he State must prove that the
defendant . . . shared in the criminal intent of the principal,
thus demonstrating a community of unlawful purpose at the
time the act was committed.” (internal quotation marks
omitted)). The Washington Supreme Court cases the
government cites, however, significantly predate the above-
quoted authoritative interpretations by that court, and in
some cases they even predate the 1976 enactment of
Washington’s modern accomplice liability statute. The
more recent state intermediate appellate court cases are also
less authoritative than the clear statements of Washington’s
highest court. We are satisfied that the government’s cited
case law is less authoritative than the more recent
Washington Supreme Court cases that indicate a clear
distinction between the mental states of intent and
knowledge.

In the face of the clear statutory language and the most
authoritative state case law, the government argues as a
fallback that—even if there is a formal distinction between
the state and federal mens rea requirements—in practice,
Washington’s law does not “extend significantly beyond” its
federal analogue for purposes of categorical comparison.
Duenas-Alvarez, 549 U.S. at 193. Whatever the
metaphysical merit of the government’s attack on the
distinction between intent and knowledge, we have held that,
“where, as here, a state statute explicitly defines a crime
more broadly than the generic definition, no ‘legal
imagination’ is required to hold that a realistic probability
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime.” United States v.
Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (quoting Duenas-
Alvarez, 549 U.S. at 193). Because the difference in breadth
 UNITED STATES V. VALDIVIA-FLORES 15

is apparent on the face of the statute, we must conclude that
Washington’s statute is broader than its federal analogue.

Finally, the government makes a pragmatic argument
that, under Valdivia-Flores’s proposed application of the
categorical approach, “no Washington state conviction can
serve as an aggravated felony at all because of [the]
accomplice liability statute” and that such a result “cannot
have been Congress’s intent.” The government here merely
joins a chorus of those who “have raised concerns about [the]
line of decisions” applying the categorical approach, “[b]ut
whether for good or for ill, the elements-based approach
remains the law.” Mathis v. United States, 136 S. Ct. 2243,
2257 (2016). Indeed, Justice Kennedy wrote separately in
Mathis to note specifically that Congress “could not have
intended vast . . . disparities for defendants convicted of
identical criminal conduct in different jurisdictions”; but he
concurred in the opinion that held that the categorical
approach required just that result. Id. at 2258 (Kennedy, J.,
concurring). As an inferior court, we must follow suit.

Under a straightforward application of the categorical
approach, Washington’s drug trafficking statute is overbroad
compared to its federal analogue, and Valdivia-Flores’s
conviction cannot support an aggravated felony
determination. 3

3
Our dissenting colleague rejects potential differences between
Washington and federal aiding and abetting liability on the ground that
we should look no further than the state statute defining the principal
offense of drug trafficking, which does match its federal analogue. But
as the dissent points out, “conviction of aiding and abetting is tantamount
to conviction of the underlying offense.” It is for just that reason that,
under the categorical approach, “the criminal activities of . . . aiders and
abettors of a generic” offense “must themselves fall within the scope of
16 UNITED STATES V. VALDIVIA-FLORES

C

The district court’s ruling, however, was based on a
somewhat alternative analysis: applying the modified
categorical approach, which permits a court to look at the
documents of conviction. Using those, the district court
determined that Valdivia-Flores was, in fact, convicted as a
principal rather than an accomplice and so fell within the
federal generic drug trafficking prohibition.

It is only “[i]n a narrow range of cases,” however, “when
the statute at issue is divisible,” that a court “may employ”
the modified categorical approach to look at the underlying
documents of conviction. 4 Ramirez v. Lynch, 810 F.3d 1127,
1131 (9th Cir. 2016). Where a “statutory phrase . . . refers

the [analogue] federal statute.” Duenas-Alvarez, 549 U.S. at 190. The
test under Taylor is straightforward in this context: “[i]f the state statute
criminalizes conduct that would not constitute a drug trafficking offense
under federal . . . law, then a prior conviction under that statute does not
categorically qualify” as an aggravated felony. United States v.
Valdavinos-Torres, 704 F.3d 679, 691 (9th Cir. 2012) (internal quotation
marks omitted). Because the Washington statute does criminalize
conduct that would not constitute a drug offense under federal law—due
to the distinct aiding and abetting definitions—it is overbroad. That we
have rejected an overbreadth challenge to this Washington statute before
is irrelevant because such challenge was based on an argument unrelated
to the overbreadth of the aiding and abetting component of the statute.
See United States v. Burgos-Ortega, 777 F.3d 1047, 1052 (9th Cir. 2015)
(considering an overbreadth challenge because the Washington statute
did not include same exemption for “administering” a drug as its federal
analogue).
4
The dissent argues “that documents in the record relevant to
Valdivia-Flores’ conviction leave little doubt that he was convicted as a
principal and not as an accomplice.” We may not consider such
documents, of course, if the statute is not divisible.
 UNITED STATES V. VALDIVIA-FLORES 17

to multiple, alternative means of commission” of the crime,
it must “be regarded as indivisible if the jurors need not agree
on which method of committing the offense the defendant
used.” Rendon, 764 F.3d at 1085.

Washington law is clear that jurors need not agree on
whether a defendant is a principal or accomplice. See State
v. Hoffman, 804 P.2d 577, 605 (Wash. 1991) (“[I]t is not
necessary that jurors be unanimous as to the manner of an
accomplice’s and a principal’s participation as long as all
agree that they did participate in the crime.”). Because a jury
need not distinguish between principals and accomplices, the
drug trafficking statute is not divisible so far as the
distinction between those roles is concerned, so the modified
categorical approach may not be applied, and it was error for
the district court to do so. 5

IV

Because Valdivia-Flores’s drug trafficking conviction
does not qualify as an aggravated felony under the
categorical approach, it cannot support the asserted basis for
Valdivia-Flores’s 2009 removal. Valdivia-Flores was
therefore prejudiced from his inability to seek judicial
review for that removal. He thus satisfies all three elements
of 8 U.S.C. § 1326(d), and his collateral attack on the
underlying deportation order should have been successful.

The judgment of the district court is therefore
REVERSED and the case REMANDED for further
proceedings consistent with this opinion.
5
That conclusion comports with our prior holding regarding federal
aiding and abetting liability outside of the immigration context, where
we have held that “[a]iding and abetting . . . is simply one means of
committing a . . . crime.” Garcia, 400 F.3d at 820.
18 UNITED STATES V. VALDIVIA-FLORES

O’SCANNLAIN, Circuit Judge, specially concurring.

Although the result in this case is dictated by the case
law of the Supreme Court and our Circuit, I write separately
to highlight how it illustrates the bizarre and arbitrary effects
of the ever-spreading categorical approach for comparing
state law offenses to federal criminal definitions. I am
hardly the first federal circuit judge to express puzzlement at
how the categorical approach has come to be applied. See,
e.g., United States v. Doctor, 842 F.3d 306, 312 (4th Cir.
2016) (Wilkinson, J., concurring); United States v. Faust,
853 F.3d 39, 60 (1st Cir. 2017) (Lynch, J., concurring);
United States v. Chapman, 866 F.3d 129, 136 (3d Cir. 2017)
(Jordan, J., concurring). That criticism arises largely in
relation to the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)—in which context the categorical
approach was created to apply sentencing enhancements
based on prior state convictions—but the case before us
illustrates the much broader reach of its peculiar
consequences.

Almost three decades ago, in Taylor v. United States,
495 U.S. 575 (1990), the Supreme Court developed the
categorical approach in the context of ACCA, which
imposes heightened mandatory minimums for serious repeat
offenders. See 18 U.S.C. § 924(e). Two decades later, it had
become clear that the same approach applied to determine
what state crimes fell within certain categories enumerated
in the Immigration and Nationality Act, 8 U.S.C. § 1101 et
seq. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187
(2007). Several justices of the Supreme Court have
expressed concern about the “arbitrary and inequitable
results produced by applying” the categorical approach to
the ACCA sentencing scheme. Mathis v. United States,
136 S. Ct. 2243, 2258 (2016) (Kennedy, J., concurring)
 UNITED STATES V. VALDIVIA-FLORES 19

(noting similar criticisms raised in dissent by Justices
Ginsburg, Breyer, and Alito). The results can be even more
arbitrary in other contexts, including the case before us
involving a collateral attack on a removal order.

As Judge Wilkinson observed in his criticism of the
present state of the categorical approach, when it comes to
ACCA and sentencing, a district court “has various tools to
impose a stricter sentence if it believes that the categorical
approach is ignoring a violent criminal history or disserving
the general aims of sentencing.” Doctor, 842 F.3d at 317
(Wilkinson, J., concurring). Under the advisory sentencing
guidelines, a district court can depart outside the guidelines
to correct for a particularly unjust or absurd application of
the categorical approach.

In the context of the case before us, however, there is no
way to remedy an especially absurd result of applying the
categorical approach. When a removal premised on a prior
state conviction for an aggravated felony is collaterally
attacked years later, a court’s only role once reaching the
merits is to apply the categorical approach and to determine
if the state statute of conviction was a categorical match with
its federal analogue. As today’s decision makes clear, if the
challenger is clever enough to find some space in the state
statutory scheme that lies outside the federal analogue, he
can effectively void that prior removal for purposes of his
present illegal reentry prosecution—even though the
challenger admits that the actual conduct underlying his state
conviction falls at the heart of the federal analogue. There is
no discretion to be exercised.

Congress made clear its desire to remove aliens who
have committed “aggravated felonies,” which it expressly
defined to include any “drug trafficking crime,” 8 U.S.C.
§ 1101(a)(43)(B), meaning “any felony punishable under the
20 UNITED STATES V. VALDIVIA-FLORES

Controlled Substances Act,” 18 U.S.C. § 924. Nobody
contests that Valdivia-Flores possessed heroin with intent to
deliver it, nor that such conduct is indeed a felony punishable
under the Controlled Substances Act. There is no reason to
doubt, then, that Valdivia-Flores actually did commit an
aggravated felony. Because of the judicially-created
categorical approach and a quirk in the drafting of
Washington’s statutory scheme, however, he escapes the
consequences that Congress intended for such conduct.

Whatever the merits of the Supreme Court’s rationale for
imposing the categorical approach on sentencing under
ACCA, where judges have discretion to correct for
particularly arbitrary and unjust results, the effect is far more
pernicious in cases such as this one where there is no chance
for correction. Shouldn’t it be possible to have a more
“practical reading” of the Immigration and Nationality Act
so that, “[w]hen it is clear that a defendant necessarily
admitted or the jury necessarily found that the defendant
committed the elements of [the generic federal crime], the
conviction should qualify” for purposes of classifying it as
an aggravated felony? Descamps v. United States, 133 S. Ct.
2276, 2295 (2013) (Alito, J., dissenting). If the Supreme
Court is unwilling to revisit the categorical approach for
cases such as this one, Congress should consider clarifying
whether it truly intended radically different treatment for
aliens “convicted of identical criminal conduct in different
jurisdictions.” Mathis, 136 S. Ct. at 2258 (Kennedy, J.,
concurring).
 UNITED STATES V. VALDIVIA-FLORES 21

RAWLINSON, Circuit Judge, dissenting:

Jose Valdivia-Flores was convicted of possession with
intent to deliver a controlled substance in violation of Wash.
Rev. Code § 69.50.401. The majority describes our task as
“determin[ing] whether Valdivia-Flores’ conviction under
Wash. Rev. Code § 69.50.401 was for an aggravated
felony.” Majority Opinion, p. 10. Yet, inexplicably, the
majority completely fails to address that statute.

In determining whether Valdivia-Flores was convicted
of an aggraved felony, we compare the state statute of
conviction to the generic federal definition of possession
with intent to deliver a controlled substance. See Roman-
Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014). The
Immigration and Nationality Act (INA) defines the term
“aggravated felony” to include “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).” 8 U.S.C. § 1101(a)(43)(B); see also
Roman-Suaste, 766 F.3d at 1038. The phrase “drug
trafficking crime” supplies the generic federal description of
possession of a controlled substance with intent to deliver,
defined in pertinent part as “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.).”
18 U.S.C. § 924(c)(2); see also Roman-Suaste, 766 F.3d at
1038. A “felony” includes an offense for which the
maximum term of imprisonment is “more than one year.”
18 U.S.C. § 3559(a)(5); see also Roman-Suaste, 766 F.3d at
1038. Ultimately, “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.” United States v. Gonzalez-Corn, 807 F.3d
22 UNITED STATES V. VALDIVIA-FLORES

989, 993 (9th Cir. 2015) (citations and internal quotation
marks omitted).

The pertinent CSA provision in this case, provides:
“Except as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled
substance.” 21 U.S.C. § 841(a)(1). The Washington statute
underlying Valdivia-Flores’ 1997 conviction, stated in
pertinent part: “Except as authorized by this chapter, it is
unlawful for any person to manufacture, deliver, or possess
with intent to manufacture or deliver, a controlled
substance.” Wash. Rev. Code § 69.50.401(a) (1997).

Washington’s aiding and abetting statute stated at the
time of Valdivia-Flores’ conviction: “A person is an
accomplice of another person in the commission of a crime
if . . .[w]ith knowledge that it will promote or facilitate the
commission of the crime, he . . .[s]olicits, commands,
encourages, or requests such other person to commit it; or
[a]ids or agrees to aid such other person in planning or
committing it.” Wash. Rev. Code § 9A.08.020(3)(a)(i)-(ii)
(1997).

Valdivia-Flores does not vigorously challenge the notion
that a drug trafficking offense constitutes an aggravated
felony. Rather, he contends that our categorical analysis
should focus on Washington’s aiding and abetting statute,
which he argues is implicit in Washington’s drug trafficking
statute. Valdivia-Flores relies heavily on the Supreme
Court’s decision in Gonzalez v. Duenas-Alvarez, 549 U.S.
183 (2007). He further contends that the implicit aiding and
abetting liability is overbroad and indivisible.
 UNITED STATES V. VALDIVIA-FLORES 23

The majority goes astray by accepting Valdivia-Flores’
argument. Reliance on Duenas-Alvarez as authority to
support focusing our categorical analysis on Washington’s
aiding and abetting statute is misplaced. In Duenas-Alvarez,
the Supreme Court held that a “theft offense” includes the
crime of aiding and abetting a theft offense. 549 U.S. at 189–
90. However, the statute at issue provided in pertinent part:

Any person who drives or takes a vehicle not
his or her own, without the consent of the
owner thereof, and with intent either to
permanently or temporarily deprive the
owner thereof of his or her title to or
possession of the vehicle, whether with or
without intent to steal the vehicle, or any
person who is a party or an accessory to or
an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public
offense.

Id. at 187 (quoting Cal. Veh. Code Ann. § 10851(a)) (some
emphasis added). Importantly, the language supporting an
analysis of aiding and abetting liability came directly from
the statute underlying Duenas-Alvarez’s conviction. See id.
Thus, the Supreme Court compared Cal. Veh. Code Ann.
§ 10851(a), the statute of conviction, to the generic
definition of a theft offense, consistent with a traditional
categorical analysis. See id. at 189–94.

The majority compares Washington’s aiding and
abetting statute—a statute that Valdivia admitted is a
separate statute from the statute of conviction—to the
generic definition of aiding and abetting. See Majority
Opinion, pp. 11–13. As the district court observed in United
24 UNITED STATES V. VALDIVIA-FLORES

States v. Gonzalez-Altamirano, No. 14CR 750-BEN, 2014
WL 7047636 at *5 (S.D. Cal. Dec. 12, 2014):

Defendant . . . asks the Court to go beyond
the Washington statute of conviction, look at
a different statute, find that it impliedly
applies to every offense, and find the
application of the implication carries the
conviction beyond the federal generic drug
trafficking offense. To borrow a phrase, this
argument requires the sort of theoretical
possibility that was cautioned against in
Gonzalez v. Duenas-Alvarez. . . .

(citation and internal quotation marks omitted). Tellingly, as
in Gonzalez-Altamirano, the majority cites no precedent
skipping over the actual statute of conviction to plug a
completely different statute into the Taylor analysis. See
2014 WL 7047636 at *4. Further detracting from the
majority’s conclusion, we have explicitly determined that a
conviction under Wash. Rev.Code § 69.50.401 qualifies as a
conviction for an aggravated felony in a different context.
See United States v. Burgos-Ortega, 777 F.3d 1047, 1054–
55 (9th Cir.), cert. denied, 135 S. Ct. 2848 (2015) (upholding
a sentence enhancement). Unlike the majority, we rejected
the argument that the statute was categorically overbroad.
See id.

It is also worth mentioning that documents in the record
relevant to Valdivia-Flores’ conviction leave little doubt that
he was convicted as a principal and not as an accomplice.
The information charged Valdivia-Flores with unlawfully
and feloniously possessing with the intent to manufacture or
deliver heroin in violation of Wash. Rev.Code
§ 69.50.401(a)(1). The Plea Statement signed by Valdivia-
 UNITED STATES V. VALDIVIA-FLORES 25

Flores contains a handwritten acknowledgment that he was
charged with possession of heroin with intent to deliver,
stating the elements of the crime, and describing in his own
words that he did “unlawfully possess with intent to deliver
Heroin” knowing that it was a controlled substance. In a
stipulation of facts provided to the district court, Valdivia-
Flores agreed that on August 8, 1997, he suffered a felony
conviction for Possession with Intent to Deliver Heroin, in
violation of Wash. Rev. Code § 69.50.401(a). Finally, the
state court’s judgment and sentence documented that
Valdivia-Flores was convicted of Possession with Intent to
Deliver Heroin in violation of Wash. Rev. Code
§ 69.50.401(a)(1). Noticeably, no evidence in the record
refers to Wash. Rev. Code § 9A.08.020 or suggests that
Valdivia-Flores was convicted as an accomplice.

In my view, the majority has impermissibly veered away
from the statute of conviction to find overbreadth based on
its analysis of a statute that was not part of the prosecution
or conviction in this case. Our analysis should have been on
the actual statute of conviction, Wash. Rev. Code
§ 69.50.401, which meets the definition of an aggravated
felony.

Indeed, our precedent makes it crystal clear that
conviction of aiding and abetting is tantamount to conviction
of the underlying offense. See Salazar-Luviano v. Mukasey,
551 F.3d 857, 860 n.2 (9th Cir. 2008) (“Salazar’s aiding and
abetting conviction is technically a violation of 18 U.S.C.
§ 2. That Salazar was convicted of aiding and abetting,
however, makes him liable as a principal of the underlying
offense.”); see also Ortiz-Magana v. Mukasey, 542 F.3d 653,
659 (9th Cir. 2008) (“[Because] there is no material
distinction between an aider and abettor and principals in
any jurisdiction of the United States . . . aiding and abetting
26 UNITED STATES V. VALDIVIA-FLORES

an [offense] is the functional equivalent of personally
committing that offense [and] that offense . . . constitutes an
aggravated felony.”) (emphasis added).

In Sales v. Sessions, 868 F.3d 779, 780 (9th Cir. 2017),
we recently considered a conviction for second degree
murder under California law. We noted that it was
undisputed that a conviction for second degree murder is an
aggravated felony. See id. We then decided that a
conviction for aiding and abetting second degree murder
“also qualifies as an aggravated felony.” Id. We clarified
that “absent a showing that the law has been applied in some
‘special’ way, a conviction in California for aiding and
abetting a removable offense is also a removable offense.”
Id. We eschewed the defendant’s reliance on Duenas-
Alvarez, as we should do in this case because our holding in
Duenas-Alvarez does not apply to our Taylor analysis here.
See id.

In Salazar-Luviano and in Ortiz-Magana, we discerned
no reason to delve into the intricacies of the aiding and
abetting statutes. Quite the opposite. As we explained in
Salazar-Luviano in rejecting the government’s attempt to
address the elements of the aiding and abetting statute, “[t]he
government’s observation that aiding and abetting is a
specific intent crime, is beside the point. Aiding and abetting
is not a stand-alone offense–one convicted of aiding and
abetting is guilty of the underlying substantive offense as if
he committed it directly.” 551 F.3d at 862 n.4 (citation,
alteration and internal quotation marks omitted). The same
is true in this case. Because aiding and abetting is not an
offense in and of itself, the majority’s focus on the elements
of the Washington aiding and abetting statute is, as we
previously noted, “beside the point.” Id. I respectfully
dissent.