FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50423
Plaintiff-Appellee,
D.C. No.
v. 3:15-cr-02876-JAH-1
JOSUE MARTINEZ-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
UNITED STATES OF AMERICA, No. 17-50295
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-02253-H-1
OSCAR CARCAMO-SOTO,
Defendant-Appellant. ORDER AND
AMENDED OPINION
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
2 UNITED STATES V. MARTINEZ-HERNANDEZ
Argued and Submitted November 8, 2018
Pasadena, California
Filed January 9, 2019
Amended July 25, 2019
Before: Johnnie B. Rawlinson, Michael J. Melloy, *
and Andrew D. Hurwitz, Circuit Judges.
Order;
Opinion by Judge Hurwitz
SUMMARY **
Criminal Law
The panel filed (1) an order amending its opinion,
denying petitions for panel rehearing, and denying petitions
for rehearing en banc on behalf of the court; and (2) an
amended opinion affirming two defendants’ convictions for
illegal reentry in violation of 8 U.S.C. § 1326 in cases in
which the defendants had been deported after immigration
officers determined that their prior convictions for robbery
in violation of California Penal Code § 211 were for “crimes
of violence” and thus constituted aggravated felonies under
8 U.S.C. § 1101(a)(43)(F).
*
The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
**
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. MARTINEZ-HERNANDEZ 3
In district court, the defendants collaterally attacked their
underlying removal orders, claiming that their removal
orders were invalid because § 211 robbery was no longer
treated as a crime of violence under recent Ninth Circuit
decisions. The district courts denied the motions, reasoning
that even if § 211 robbery were not a “crime of violence”
aggravated felony under § 1101(a)(43)(F), it still was a theft
offense under 8 U.S.C. § 1101(a)(43)(G).
On appeal, the government conceded, and the panel held,
that in light of subsequent case law, the defendants’ robbery
convictions do not today qualify as “crimes of violence”
under § 1101(a)(43)(F), and that the current state of Circuit
law governs the defendants’ collateral attacks of their
removal orders. The panel nevertheless affirmed the
convictions because the district courts in both cases correctly
held that § 211 robbery qualifies as a generic theft offense
under § 1101(a)(43)(G), and thus is an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii).
COUNSEL
Doug Keller (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendants-Appellants.
Daniel Earl Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Assistant United States Attorney, Chief,
Appellate Section, Criminal Division; Robert S. Brewer Jr.,
United States Attorney; United States Attorney’s Office, San
Diego, California; for Plaintiff-Appellee.
Richard Frankel, Attorney; John Lang, Student Counsel;
Federation Litigation and Appeals Clinic, Drexel University
Kline School of Law, Philadelphia, Pennsylvania; for Amici
4 UNITED STATES V. MARTINEZ-HERNANDEZ
Curiae Immigration Law Professors and Immigration Law
Clinics.
Kari Hong, Ninth Circuit Appellate Program, Boston
College Law School, Newton, Massachusetts, for Amici
Curiae American Immigration Lawyers Association and
Florence Immigrant and Refugee Rights Project.
Hilary Potashner, Federal Public Defender, Office of the
Federal Public Defender, Los Angeles, California, for Amici
Curiae Ninth Circuit Federal and Community Defenders.
ORDER
The opinion filed on January 9, 2019, and published at
912 F.3d 1207, is amended by the opinion filed concurrently
with this order.
With these amendments, the panel has voted to deny the
petitions for panel rehearing. Judges Rawlinson and
Hurwitz have also voted to deny the petitions for rehearing
en banc, and Judge Melloy so recommends.
The full court has been advised of the petitions for
rehearing en banc and no judge has requested a vote on
whether to rehear the matters en banc. Fed. R. App. P. 35.
The petitions for panel rehearing and rehearing en banc,
Dkt. 46 (17-50295) and 49 (16-50423), are DENIED.
No additional petitions for rehearing will be entertained.
UNITED STATES V. MARTINEZ-HERNANDEZ 5
OPINION
HURWITZ, Circuit Judge:
Josue Martinez-Hernandez and Oscar Carcamo-Soto
(the “Defendants”) are Mexican citizens; each entered the
United States without inspection while young. Years later,
each Defendant was convicted of robbery in violation of
California Penal Code (“CPC”) § 211. Upon completion of
their prison terms, both Defendants were deported to Mexico
after immigration officers determined that their robbery
convictions were for “crimes of violence”—and thus
constituted aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(F).
After returning to the United States, both defendants
were convicted of illegal reentry in violation of 8 U.S.C.
§ 1326. In these consolidated appeals, they collaterally
attack their removal orders, arguing that a conviction under
CPC § 211 no longer qualifies under § 1101(a)(43)(F) as a
crime of violence. We agree with that argument. But that
agreement avails the Defendants little, because the district
courts in both cases correctly held that § 211 robbery
qualifies as a generic theft offense under 8 U.S.C.
§ 1101(a)(43)(G), and thus is an aggravated felony under 18
U.S.C. § 1227(a)(2)(A)(iii). We therefore affirm the
Defendants’ convictions.
I.
Martinez pleaded guilty to robbery in violation of CPC
§ 211 in 2004 and was sentenced to five years imprisonment.
Carcamo pleaded guilty to CPC § 211 robbery in 2009 and
received a three-year sentence. After release from prison,
each Defendant was served with a Notice of Intent to Issue a
Final Administrative Removal Order (“Notice”) and placed
6 UNITED STATES V. MARTINEZ-HERNANDEZ
in expedited removal proceedings pursuant to 8 U.S.C.
§ 1228. The materially identical Notices alleged that each
Defendant had (1) entered the United States “without
inspection, admission, or parole by an immigration officer,”
and (2) been later convicted of robbery in violation of CPC
§ 211. The Notices stated that the named Defendant was
deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) “because you
have been convicted of an aggravated felony as defined in
. . . 8 U.S.C. § 1101(a)(43)(F).” After hearings before
immigration officers, both Defendants were ordered to be
deported to Mexico.
Both Defendants later reentered the country, and were
individually charged with violating 8 U.S.C. § 1326. They
each filed motions to dismiss pursuant to 8 U.S.C. § 1326(d),
claiming that their removal orders were invalid because CPC
§ 211 robbery was no longer treated as a crime of violence
under recent Ninth Circuit decisions. The district courts
denied the motions, reasoning that even if CPC § 211
robbery were not a “crime of violence” aggravated felony
under § 1101(a)(43)(F), it still was a “theft offense”
aggravated felony under § 1101(a)(43)(G). Carcamo
entered into a conditional plea agreement allowing him to
appeal the denial of his § 1326(d) motion. Martinez initially
entered a guilty plea, but later withdrew it, and appealed the
denial of his § 1326(d) motion. We have jurisdiction over
the Defendants’ consolidated appeals under 28 U.S.C.
§1291, and review the denial of a motion to dismiss under
8 U.S.C. § 1326(d) de novo. United States v. Cisneros-
Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015).
II.
A defendant charged with illegal reentry in violation of
8 U.S.C. § 1326 may “bring a collateral attack challenging
UNITED STATES V. MARTINEZ-HERNANDEZ 7
the validity of his underlying removal order, because that
order serves as a predicate element of his conviction.”
United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).
A successful collateral attack requires proof not only of a
deficiency in the original removal process, but also that “the
entry of the order was fundamentally unfair.” 8 U.S.C.
§ 1326(d)(2)–(3). “An underlying removal order is
‘fundamentally unfair’ if: (1) a defendant’s due process
rights were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
defects.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2004) (internal alteration omitted).
A.
The Defendants were removed under 8 U.S.C.
§ 1227(a)(2)(A)(iii), which applies to an “alien who is
convicted of an aggravated felony at any time after
admission.” Under § 1101(a)(43)(F) an “aggravated felony”
is a “crime of violence” as defined in 18 U.S.C. § 16, for
which the term of imprisonment is at least one year. A crime
of violence under 18 U.S.C. § 16 includes, as relevant in this
case, “an offense that has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). 1
When the Defendants were removed, we treated a
robbery conviction under CPC § 211 as a crime of violence
1
The so-called “residual clause” in 18 U.S.C. § 16(b) also defines a
“crime of violence” as “any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense.” Section 16(b) was held unconstitutionally vague in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), and is not at issue in this case.
8 UNITED STATES V. MARTINEZ-HERNANDEZ
under § 1101(a)(43)(F). See Nieves-Medrano v. Holder, 590
F.3d 1057, 1057–58 (9th Cir. 2010). But, in 2011, the
California Supreme Court clarified that CPC § 211 can be
violated by the accidental use of force. See People v.
Anderson, 252 P.3d 968, 972 (Cal. 2011). We therefore
subsequently held that a CPC § 211 conviction is not
categorically a violent felony as defined in the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United
States v. Dixon, 805 F.3d 1193, 1197–98 (9th Cir. 2015).
The ACCA defines a “violent felony” as one that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). The definition of a crime of violence in 18
U.S.C. § 16(a) is materially indistinguishable, and the
government has therefore wisely conceded that the
defendants’ robbery convictions do not today qualify as
“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F). The
government has also correctly conceded that the current state
of Circuit law governs the Defendants’ collateral attacks of
their removal orders. See United States v. Aguilera-Rios,
769 F.3d 626, 633 (9th Cir. 2014) (noting in this context that
“statutory interpretation opinions are fully retroactive.”).
B.
But, the government’s concessions, while helpful,
merely start our inquiry. A successful collateral attack
requires proof that “entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d)(3). Thus, the Defendants must
therefore “demonstrate that prejudice resulted” from a defect
in the administrative process. United States v. Garcia-
Martinez, 228 F.3d 956, 963 (9th Cir. 2000).
UNITED STATES V. MARTINEZ-HERNANDEZ 9
1.
The Notices characterized the Defendants’ CPC § 211
convictions as aggravated felonies because they constituted
“crimes of violence” as defined in 8 U.S.C. 1101(a)(43)(F).
The district courts in these cases instead found the § 211
convictions to be aggravated felonies because they were
theft offenses, as defined in 8 U.S.C. § 1101(a)(43)(G). The
Defendants first argue that we may not consider whether
their CPC § 211 convictions qualify as aggravated felonies
for a reason other than the one specified in their Notices.
The Defendants rely on the settled premise that, when
considering a petition for review of a decision of the Bureau
of Immigration Appeals, we “have no power to affirm the
BIA on a ground never charged by the [government] or
found by the IJ.” Al Mutarreb v. Holder, 561 F.3d 1023,
1029 (9th Cir. 2009). But, this case arrives in a quite
different procedural posture than our direct review of BIA
decisions. In addressing petitions for review, our inquiry is
limited to determining whether the agency decision is
supported by substantial evidence or the BIA made an error
of law. See Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th
Cir. 2008). If the agency erred, we lack the power to tell it
to reach the same result for a different reason, as we would
be substituting our judgment for that of the executive with
respect to the discretionary decision to afford relief from
removal. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884
(9th Cir. 2005) (noting that judicial review is precluded
“with respect to decisions that constitute an exercise of the
Attorney General’s discretion.”); Regents of the Univ. of
Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 494 (9th
Cir. 2018) (“[T]he APA also forecloses judicial review
under its procedures to the extent that agency action is
10 UNITED STATES V. MARTINEZ-HERNANDEZ
committed to agency discretion by law.”) (internal quotation
omitted).
Here, however, we do not directly review executive
agency action. Rather, we consider appeals from district
court orders rejecting collateral attacks on prior executive
orders. In this context, the central issue for decision is
whether a defendant “was removed when he should not have
been.” Aguilera-Rios, 769 F.3d at 630 (quoting United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.
2006)). If a violation of CPC § 211 is categorically a theft
offense under 8 U.S.C. § 1101(a)(43)(G), the very
convictions cited in the Notices would plainly have provided
a statutory basis for their removals.
Defendants argue that because the Notices cited 8 U.S.C.
§ 1101(a)(43)(F)—the provision governing crimes of
violence—rather than § 1101(a)(43)(G), which governs theft
offenses, they are invalid. The argument relies on our
decision in United States v. Ochoa-Oregel, 904 F.3d 682
(9th Cir. 2018), for the proposition that once error in the
original removal is established, the government cannot later
argue that the Defendants could have been removed on other
grounds. But that case, although containing language which
when taken in isolation supports the Defendants’ arguments,
is fundamentally different than these cases. In Ochoa-
Oregel, a legal permanent resident was first ordered
removed in 2008 in absentia, but this Court found he was
denied due process because he “did not receive notice of
either his in absentia removal hearing or of his ability to file
a motion to reopen such proceedings.” Id. at 684. Ochoa
was again ordered removed in 2011 for presenting false
entry documents, but this Court concluded that the “due
process defects in the erroneous 2008 removal proceeding
infect the 2011 removal,” by stripping Ochoa “of the
UNITED STATES V. MARTINEZ-HERNANDEZ 11
important legal entitlements that come with lawful
permanent resident status through a legally erroneous
decision that he . . . had no meaningful opportunity to
contest.” Id. at 685.
The government argued that Ochoa was not prejudiced
by the defects in the prior removal orders because “he was
an aggravated felon, who could have been removed anyway,
and who would have been denied discretionary relief,
including withdrawal of his application for admission.” Id.
But, no prior notice alleged removability on that basis, and
the panel rejected that argument, noting that “even if the
government might have been able to remove him on other
grounds through a formal removal proceeding, his removal
on illegitimate grounds is enough to show prejudice.” Id. at
685–86.
Here, however, the defendants were not denied
procedural due process or removed on “illegitimate
grounds.” The grounds for the removals were their § 211
convictions. The government offers no alternative
justification for removal today, but merely argues that even
if the original statutory citation making the convictions a
basis for removal had been made retroactively inapplicable,
the same convictions require removal under a different
section of the same statute previously invoked. Unlike
Ochoa, who was deprived of the important protections of
legal permanent resident status through removal proceedings
that violated due process, the Defendants long ago admitted
their § 211 convictions. The only issue before us today is
12 UNITED STATES V. MARTINEZ-HERNANDEZ
whether those convictions justified the Defendants’
removals. 2
2.
We therefore turn to whether a § 211 conviction qualifies
as a “theft offense” under § 1101(a)(43)(G), which is purely
a question of law. See Menendez v. Whitaker, 908 F.3d 467,
471 (9th Cir. 2018). Even if the Defendants did not have
occasion to address that legal question at the time of their
removals, they have thoroughly done so today. If CPC § 211
robbery is an aggravated felony under § 1101(a)(43)(G), the
Defendants will have suffered no real prejudice from any
inability to address the issue in their original removal
proceedings.
To determine whether a CPC § 211 conviction qualifies
as a “theft offense” under § 1101(a)(43)(G) and thus is an
aggravated felony under 8 U.S.C.§ 1227(a)(2)(A)(iii), we
apply the “categorical” approach, under which we “compare
the elements of the statute forming the basis of the
defendant’s conviction with the elements of the generic
crime.” United States v. Alvarado-Pineda, 774 F.3d 1198,
1202 (9th Cir. 2014) (internal quotation omitted). “We have
defined generic ‘theft’ as a taking of property or an exercise
of control over property without consent with the criminal
intent to deprive the owner of the rights and benefits of
ownership.” Id. (internal quotations and citations omitted).
2
United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017),
upon which the Defendants also rely, is inapposite. Valdivia was
removed because of a Washington conviction for possession of heroin,
and this Court held that the state crime was not categorically an
aggravated felony. Id. at 1208–09. The government did not suggest that
the conviction provided a ground for removal under another statutory
provision.
UNITED STATES V. MARTINEZ-HERNANDEZ 13
“Generic theft, in other words, requires (1) the taking of (2)
property (3) without consent (4) with the intent to deprive
the owner of rights and benefits of ownership.” Id. (internal
quotations and citations omitted).
CPC § 211 in turn defines robbery as “the felonious
taking of personal property in the possession of another,
from his person or immediate presence, and against his will,
accomplished by means of force or fear.” We have not
addressed in a published opinion whether CPC § 211
robbery is categorically a generic theft offense under
8 U.S.C. § 1101(a)(43)(G). 3 But, in Alvarado-Pineda, we
held that a virtually identical Washington statute, which
prohibited the “tak[ing of] personal property from the person
of another or in his or her presence against his or her will,”
was a categorical theft offense. 774 F.3d at 1202–03
(alteration in original) (citing Wash. Rev. Code
§ 9A.56.190). We stressed that although “the statute does
not explicitly provide that specific intent to steal is an
element of the crime, the state courts have so held.” Id. at
1202. And, we noted the accepted rule that robbery is
“larceny . . . plus two additional requirements: that the
property be taken from the victim’s presence, and that the
taking be accomplished by means of force or fear.” Id. at
1203 (citing 3 Wayne R. LaFave, Substantive Criminal Law
§ 20.3 (2d ed. 2003)) (internal quotations omitted).
3
A recent memorandum disposition held that CPC § 211 robbery is
categorically a § 1101(a)(43)(G) theft offense. Pena-Rojas v. Sessions,
724 F. App’x 622, 623 (9th Cir. 2018); see also United States v. Guzman-
Ibarez, 792 F.3d 1094, 1097–99 (9th Cir. 2015) (holding, but without
applying a categorical analysis, that an immigration judge correctly
determined in 1999 that a conviction under CPC § 211 was a theft
offense).
14 UNITED STATES V. MARTINEZ-HERNANDEZ
The elements of CPC § 211 robbery are
indistinguishable from those in the Washington robbery
statute addressed in Alvarado-Pineda. The California
Supreme Court, like its Washington counterpart, has made
clear that specific intent to steal is an essential element of
§ 211 robbery. See Anderson, 252 P.3d at 972; People v.
Pollock, 89 P.3d 353, 367 (Cal. 2004); People v. Lewis, 22
P.3d 392, 419 (Cal. 2001). And, consistent with the general
rule, the California Supreme Court has also described CPC
§ 211 as punishing “a species of aggravated larceny,”
elevated to robbery by proof that the taking was
accomplished through force or fear and from the victim or in
his presence. People v. Gomez, 179 P.3d 917, 920 (Cal.
2008).
In an attempt to distinguish Alvarado-Pineda, the
Defendants argue that one can be convicted of CPC § 211
robbery as an accessory after the fact, for example, by being
a getaway driver. The Defendants then contend, quoting
United States v. Vidal, that “an accessory after the fact to
theft cannot be culpable of generic theft.” 504 F.3d 1072,
1080 (9th Cir. 2007) (en banc). On analysis, however, the
argument fails.
As we have previously noted, Vidal addressed an auto
theft statute, California Vehicle Code § 10851(a), which
expressly imposed liability on accessories after the fact. See
Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061–62 (9th
Cir. 2009) (Vidal “examined . . . a statute that expressly
included within its reach the actions of an accessory.”). CPC
§ 211 has no such language. Moreover, “[t]here is a separate
section in the California Penal Code, section 32, that
specifically imposes criminal liabilities on accessories.” Id.
at 1602. And, “[e]xcept in those relatively rare instances
where the conduct of an accessory after the fact is included
UNITED STATES V. MARTINEZ-HERNANDEZ 15
within the criminal statute, as was the case in Vidal,
California courts require prosecutions under an accessory
after the fact theory of liability to be brought under section
32 of the California Penal Code.” Id. Neither defendant here
was charged under § 32.
Defendants also argue that because California courts
have upheld convictions under § 211 of defendants who
engaged only in asportation (taking) of property that had
previously been forcibly taken from its owner, § 211 robbery
is not generic theft. But, to be convicted of CPC § 211
robbery under any theory, a defendant “must form the intent
to facilitate or encourage the commission of the robbery
before or during the carrying away of the loot.” Gomez, 179
P.3d at 921 (citing People v. Cooper, 811 P.2d 742, 748 (Cal.
1991)). And, anyone found guilty of CPC § 211 robbery
must have engaged in the “exercise of control over property
without consent with the criminal intent to deprive the owner
of the rights and benefits of ownership.” See Alvarado-
Pineda, 774 F.3d at 1202. That is the classic definition of
theft. Id.
III.
For the reasons above, we AFFIRM the judgments of
the district courts in these consolidated appeals.