United States v. Melchor Orozco-Orozco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50146

Plaintiff-Appellee, D.C. No.
3:21-cr-02349-
v. TWR-1

MELCHOR OROZCO-OROZCO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding

Argued and Submitted August 15, 2023
Pasadena, California

Filed March 12, 2024

Before: Kim McLane Wardlaw, Morgan Christen, and
Jennifer Sung, Circuit Judges.

Opinion by Judge Christen
2 USA V. OROZCO-OROZCO

SUMMARY *

Criminal Law

In a case in which Melchor Orozco-Orozco was
convicted of being a previously removed alien found in the
United States in violation of 8 U.S.C. § 1326, the panel
affirmed the district court’s order denying Orozco’s motion
to dismiss his indictment on equal protection grounds,
reversed the district court’s order denying Orozco’s motion
to dismiss under 8 U.S.C. § 1326(d), and remanded for
further proceedings.
Orozco conceded that his equal protection argument is
foreclosed by United States v. Carillo-Lopez, 68 F.4th 1133
(9th Cir. 2023).
Orozco was originally removed from the United States
in 2013 through an expedited process after an immigration
officer determined that his 2005 conviction for carjacking in
violation of California Penal Code § 215 was an aggravated
felony under the Immigration and Nationality Act (INA)
because it qualifies as a “crime of violence.” Orozco argued
that his carjacking conviction does not qualify as an
aggravated felony under the INA because § 215 is not a
categorical match for a “theft offense.”
The California Supreme Court has held that a person can
commit § 215 carjacking without the intent to steal required
by a generic theft offense, see People v. Montoya, 94 P.3d
1098, 1100 (Cal. 2004), and this court is bound by the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 USA V. OROZCO-OROZCO 3

California Supreme Court’s statement of the elements of
§ 215, see Johnson v. United States, 559 U.S. 133, 138
(2010). The panel therefore concluded that Orozco’s 2005
carjacking conviction is not a categorical match for a generic
theft offense and thus is not an aggravated felony under the
INA.
The panel remanded for the district court to consider in
the first instance whether Orozco has satisfied all three
prongs of § 1326(d)(1)-(3).

COUNSEL

Jami S. Johnson (argued) and Kara Hartzler, Federal
Defenders of San Diego Inc., San Diego, California, for
Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Daniel E. Zipp, Assistant United States Attorney, Appellate
Section Chief, Criminal Division; Randy S. Grossman,
United States Attorney; Office of the United States Attorney,
United States Department of Justice, San Diego, California;
for Plaintiff-Appellee.
4 USA V. OROZCO-OROZCO

OPINION

CHRISTEN, Circuit Judge:

Melchor Orozco-Orozco appeals his conviction for
being a previously removed alien found in the United States
in violation of 8 U.S.C. § 1326. Orozco 1 was originally
removed from the United States in 2013 through an
expedited process after an immigration officer determined
that his 2005 conviction for carjacking in violation of
California Penal Code § 215 was an aggravated felony under
the Immigration and Nationality Act (INA) because it
qualifies as a “crime of violence.” In this proceeding,
Orozco filed a motion to dismiss the § 1326 charge, claiming
that the prior removal order was invalid because § 215
carjacking is not an aggravated felony. The Government
conceded in the district court that § 215 carjacking is not a
crime of violence, but argued that Orozco was still
removable in 2013 because his carjacking conviction
qualified as a “theft offense,” and thus as an aggravated
felony, under the INA. The district court agreed with the
Government and denied Orozco’s motion to dismiss the
§ 1326 charge. On appeal, Orozco argues that his carjacking
conviction does not qualify as an aggravated felony under
the INA because § 215 carjacking is not a categorical match
for a theft offense.
The California Supreme Court has held that a person can
commit § 215 carjacking without the intent to steal required
by a generic theft offense, see People v. Montoya, 94 P.3d

1
The defendant’s name appears in the record as both “Orozco-Orozco”
and “Orozco.” We use Orozco in this opinion because that is the name
the defendant uses in his briefing.
 USA V. OROZCO-OROZCO 5

1098, 1100 (Cal. 2004), and we are bound by the California
Supreme Court’s statement of the elements of § 215, see
Johnson v. United States, 559 U.S. 133, 138 (2010). We
therefore conclude that Orozco’s 2005 carjacking conviction
is not a categorical match for a generic theft offense and thus
is not an aggravated felony under the INA. We reverse the
district court’s denial of Orozco’s motion to dismiss his
§ 1326 indictment, but remand so the district court may
consider in the first instance whether Orozco has satisfied all
three prongs of § 1326(d)(1)–(3).
I.
Orozco, a native and citizen of Mexico, entered the
United States without legal status when he was ten years old.
In 2005, at age 20, he was convicted of felony carjacking
under California Penal Code § 215. Although he initially
received a probationary sentence, Orozco’s probation was
eventually revoked and he received a sentence of three years
in California state prison.
In 2013, Immigration and Customs Enforcement (ICE)
identified Orozco while he was serving his state prison
sentence. ICE concluded that Orozco was eligible for
expedited removal under 8 U.S.C. § 1228(b) and served him
with a Notice of Intent to Issue a Final Administrative
Removal Order (Notice of Intent). Section 1228(b) permits
the Attorney General to commence expedited administrative
removal proceedings against nonresident aliens who have
been convicted of aggravated felonies as defined in 8 U.S.C.
§ 1101(a)(43). See United States v. Garcia-Martinez, 228
F.3d 956, 960 (9th Cir. 2000). An ICE agent served Orozco
with the Notice of Intent, and Orozco signed the Notice. By
filling in the boxes on the form, Orozco indicated that he did
not wish to contest his removal, admitted he was deportable,
6 USA V. OROZCO-OROZCO

acknowledged that he was not eligible for any form of relief
from removal, and waived the opportunity to apply for
judicial review of the Notice of Intent. 2 Contemporaneous
with the Notice of Intent, an immigration officer issued a
Final Administrative Removal Order concluding that
Orozco was immediately removable because his carjacking
conviction was a “crime of violence” under § 1101(a)(43)(F)
and thus an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Government deported Orozco in
2013.
Orozco made two attempts to reenter the United States
and he was convicted of illegal reentry and deported each
time. In 2021, he made a third reentry attempt. He was
arrested and charged with felony illegal entry in violation of
8 U.S.C. § 1325(a)(1) and also charged with being a
previously removed alien found in the United States in
violation of 8 U.S.C. § 1326(a) and (b).
Orozco moved to dismiss the § 1326 charge on the
ground that his 2005 carjacking conviction could not serve
as a predicate offense for the 2013 final administrative
removal order because, he argued, § 215 is not a “crime of
violence” under § 1101(a)(43)(F). 3 The Government

2
Orozco has subsequently attested that he could not read the paperwork
he signed because he could not read English; that the ICE agent did not
read the paperwork to Orozco or have it translated for him; that the agent
instructed Orozco to sign the paperwork; and that Orozco believed he
had no choice but to sign the paperwork.
3
Orozco also moved to dismiss the indictment on the ground that § 1326
violates the Equal Protection Clause of the Fifth Amendment of the
United States Constitution. The district court denied the motion. In his
reply brief, Orozco concedes that our decision in United States v.
Carrillo-Lopez, 68 F.4th 1133 (9th Cir. 2023), forecloses his Fifth
Amendment argument. We agree, and we therefore affirm the district
 USA V. OROZCO-OROZCO 7

conceded in the district court that § 215 carjacking is not a
crime of violence. 4 Instead, the Government argued in the
district court that the 2013 final administrative removal order
was supported by a qualifying predicate aggravated felony
because § 215 carjacking is a categorical match for a generic
theft offense under § 1101(a)(43)(G). 5 The district court
accepted this argument and denied Orozco’s motion to
dismiss. The Government filed a superseding information
charging Orozco under § 1326(a) and (b), and he entered a
conditional guilty plea to the superseding information,
retaining his right to file this appeal. The district court

court’s dismissal of Orozco’s Fifth Amendment claim. See id. at 1154
(“We conclude that Carrillo-Lopez did not meet his burden to prove that
Congress enacted § 1326 because of discriminatory animus against
Mexicans or other Central and South Americans.”).
4
The Government renewed that concession on appeal. The Government
has therefore waived—for purposes of this appeal—any argument that
§ 215 carjacking qualifies as an aggravated felony because it is a crime
of violence. See United States v. Mejia-Pimental, 477 F.3d 1100, 1104
n.7 (9th Cir. 2007). The Government subsequently submitted a letter
pursuant to Federal Rule of Appellate Procedure 28(j) seeking to
withdraw its concession because the Attorney General has taken the
contrary position in another case pending before our court, Gutierrez v.
Garland, Nos. 21-130 & 22-554. The Government’s letter
acknowledges that, regardless of its concession, the sole issue it raised
in response to Orozco’s motion to dismiss was that carjacking is an
aggravated felony because it qualifies as a generic theft offense. We
express no view on whether carjacking is a crime of violence or the
extent to which the Government’s concession in this case affects its
position in any other pending case.
5
Section 1101(a)(43)(G) defines the term “aggravated felony” to
include, in relevant part, “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at
least one year.” 8 U.S.C. § 1101(a)(43)(G).
8 USA V. OROZCO-OROZCO

sentenced Orozco to 24 months custody in the Bureau of
Prisons followed by two years of supervised release.
II.
We have jurisdiction to consider Orozco’s appeal
pursuant to 28 U.S.C. § 1291. We review de novo the
district court’s denial of Orozco’s motion to dismiss the
§ 1326 indictment on the ground that his 2005 carjacking
conviction does not qualify as an aggravated felony. See
United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th
Cir. 2014).
III.
A noncitizen charged with being a previously removed
alien found in the United States under § 1326 has a Fifth
Amendment right to collaterally attack the underlying
removal order. Id. Orozco challenges the 2013 final
administrative order of removal that serves as the predicate
for his § 1326 conviction. To succeed, Orozco must show
that he exhausted his administrative remedies, that the
deportation proceedings improperly deprived him of an
opportunity for judicial review, and that the entry of the 2013
final removal order was “fundamentally unfair.” 8 U.S.C.
§ 1326(d)(1)–(3). The district court denied the motion to
dismiss because it concluded that Orozco could not show
that the 2013 final removal order was fundamentally unfair,
as required by § 1326(d)(3).
Under our caselaw, the order was fundamentally unfair
if Orozco’s “due process rights were violated by defects in
his underlying deportation proceeding” and “he suffered
prejudice as a result of the defects.” Alvarado-Pineda, 774
F.3d at 1201. The 2013 final administrative removal order
was defective if the crime of conviction it relied on to find
 USA V. OROZCO-OROZCO 9

Orozco removable, § 215 carjacking, does not qualify as an
aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
See United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir.
2015). We have not addressed in a published opinion
whether § 215 carjacking qualifies as a theft offense. 6
We apply the categorical approach to determine whether
§ 215 is a theft offense and thus an aggravated felony. See
United States v. Martinez-Hernandez, 932 F.3d 1198, 1205
(9th Cir. 2019). Under Taylor v. United States, 495 U.S. 575
(1990), we compare the elements of a state conviction with
the elements of the generic offense, without regard to the
actual conduct that led to the underlying conviction.
Mendoza-Garcia v. Garland, 36 F.4th 989, 994 (9th Cir.
2022). As applied here, Orozco argues that if § 215
carjacking punishes more conduct than a generic theft
offense, § 215 is overbroad and his conviction does not
qualify as an aggravated felony for immigration purposes.
See Alfred v. Garland, 64 F.4th 1025, 1031 (9th Cir. 2023)
(en banc).
We begin by identifying the elements of a generic theft
offense. We then compare the elements of a generic theft
offense with the elements of § 215 carjacking to determine
whether § 215 corresponds with, or is broader or narrower
than, a generic theft offense.

6
We did suggest in an unpublished memorandum disposition that § 215
carjacking may qualify as a generic theft offense. See Lucas v. Holder,
555 F. App’x 715, 715 (9th Cir. 2014). We concluded, however, that the
resolution of that question was immaterial because, at that time, § 215
qualified as a crime of violence under our caselaw. Id. at 715–16 (citing
Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010),
abrogated by Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018)).
10 USA V. OROZCO-OROZCO

A.
The definition of a generic theft offense is well-settled.
A generic theft offense is “a taking of property or an exercise
of control over property without consent with the criminal
intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent.” Ramirez-Villalpando v. Holder, 645 F.3d 1035,
1039 (9th Cir. 2011) (quoting Martinez-Perez v. Gonzales,
417 F.3d 1022, 1026 (9th Cir. 2005)). In formulating this
definition, we accounted for the fact that Congress’s use of
“theft offense” in § 1101(a)(43)(G), rather than just “theft,”
indicates that “theft offense” encompasses “different but
closely related” crimes beyond theft itself. United States v.
Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en
banc), superseded by statute on other grounds as explained
in United States v. Gomez-Mendez, 486 F.3d 599, 604–05
(9th Cir. 2007). The Supreme Court has also embraced this
definition. See Gonzales v. Duenas-Alvarez, 549 U.S. 183,
189 (2007).
Because “‘theft’ stems from the common law crime of
larceny,” we have looked to the common law to determine
the elements of a generic theft offense. Corona-Sanchez,
291 F.3d at 1204. Common-law larceny is “the felonious
taking and carrying away of the personal goods of another.”
United States v. Turley, 352 U.S. 407, 412 (1957) (quoting 4
William Blackstone, Commentaries *229). “Felonious” is a
common-law term of art meaning “intent to steal.” Carter v.
United States, 530 U.S. 255, 270 (2000). Felonious intent
(or intent to steal) requires that the defendant intend to
deprive the victim of possession of property without a
superior possessory interest to that of the victim. See United
States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970) (“It
was not an essential part of the common law larceny-type
 USA V. OROZCO-OROZCO 11

offense that the thief knew who owned the property he took;
it was enough that he knew it did not belong to him.”); 52B
C.J.S. Larceny § 43 (2023) (“A larceny victim’s actual
ownership of the stolen property need not be proven but only
that the victim has a right to possession superior to that of
the defendant.” (emphasis added)); 50 Am. Jur. 2d Larceny
§ 31 (2023) (“The intent to steal or animus furandi, as an
element of theft by larceny, is the intent, without a good faith
claim of right, to permanently deprive the owner of
possession of personal property.”).
Consistent with larceny’s felonious intent requirement,
we have said that a generic theft offense is a specific-intent
crime that requires the government to show that the
defendant had the intent to deprive the owner of the rights
and benefits of ownership. See Alvarado-Pineda, 774 F.3d
at 1202–03. Orozco argues that § 215 carjacking lacks this
element because, as explained below, the California
Supreme Court has held that carjacking is a crime against
possession, not ownership. But the Government responds,
and we agree, that a generic theft offense does not require
that the defendant intend to deprive the titleholder of his or
her property. Instead, the government need only show that
the defendant intended to take property from a person with a
superior possessory interest in the property. Cf. United
States v. Sellers, 670 F.2d 853, 854 (9th Cir. 1982)
(“Common law larceny requires a taking of property from
the possession of another without his consent and with the
intent permanently to deprive him of possession.”);
Chiaramonte v. INS, 626 F.2d 1093, 1099 (2d Cir. 1980)
(“Proof of the identity of the owner of purloined property is
not a requisite element of the crime of larceny as it is defined
in most American jurisdictions.”). “Considered as an
element of larceny, ‘ownership’ and ‘possession’ may be
12 USA V. OROZCO-OROZCO

regarded as synonymous terms, for one who has a right to
the possession of goods as against the thief, as far as he or
she is concerned, is the owner of them.” 52B C.J.S. Larceny
§ 43 (emphasis added).
A generic theft offense therefore requires that the
defendant have the intent to deprive one with a superior
possessory interest of the rights and benefits of ownership.
Rather than focus on ownership versus possession as Orozco
suggests, we must instead consider whether the crime of
conviction requires the same specific intent to steal as a
generic theft offense. With this definition of a generic theft
offense in mind, we turn to the elements of Orozco’s
carjacking conviction.
B.
California Penal Code § 215 provides:

“Carjacking” is the felonious taking of a
motor vehicle in the possession of another,
from his or her person or immediate
presence, or from the person or immediate
presence of a passenger of the motor vehicle,
against his or her will and with the intent to
either permanently or temporarily deprive the
person in possession of the motor vehicle of
his or her possession, accomplished by means
of force or fear.

Cal. Penal Code § 215(a).
In People v. Montoya, the California Supreme Court
addressed the elements necessary for a conviction under
§ 215. 94 P.3d 1098. Montoya was convicted of § 215
carjacking and of the unlawful taking of a vehicle under
 USA V. OROZCO-OROZCO 13

California Vehicle Code § 10851. Id. at 1099. Both
convictions arose from the same incident in which Montoya
feigned interest in a car that was for sale. Id. Rather than
test driving it, Montoya drove off with the car. Id. Montoya
argued on appeal that the unlawful taking of a vehicle is a
lesser included offense of § 215 carjacking, and because
California law prohibits multiple convictions based on
necessarily included offenses, he argued he could not be
convicted of both charges. Id. at 1099–1100. To decide
whether one offense is “necessarily included” in another,
California courts apply an elements test and ask whether all
the elements of one offense are a subset of the other. Id. at
1100.
In Montoya, the California Supreme Court held that
§ 10851(a), unlawful taking of a vehicle, is not a lesser
included offense of § 215 carjacking. Id. The court
explained that unlawful taking of a vehicle “is committed
when a person ‘drives or takes a vehicle not his or her own,
without the consent of the owner . . . and with intent either
to permanently or temporarily deprive the owner . . . of his
or her title to or possession of the vehicle, whether with or
without intent to steal the vehicle.” Id. (quoting Cal. Veh.
Code § 10851(a)) (omissions in original and emphases
added). The court concluded that “a person can commit a
carjacking without necessarily committing an unlawful
taking of a vehicle” because carjacking requires “the intent
to deprive the driver of possession,” and the driver may or
may not be the owner. Id. (emphasis in original). The court
offered the following hypothetical to illustrate the difference
between the two crimes:

Joe knows that his neighbor Mary’s car has
been stolen and that she is offering a reward
14 USA V. OROZCO-OROZCO

for its return. If Joe spots an unfamiliar
person driving Mary’s car and orders that
person out at gunpoint and then drives off,
intending to return the car to Mary and secure
the reward, he would be guilty of carjacking
but not of an unlawful taking of a vehicle.

Id.
The court’s hypothetical makes plain that § 215
carjacking does not require generic theft’s specific intent to
steal. Indeed, in People v. Hill the California Supreme Court
expressly concluded that § 215 carjacking can be committed
against a passenger who has no possessory interest in the
vehicle. 3 P.3d 898, 903 (Cal. 2000) (“By extending
carjacking to include a taking from a passenger, even one
without a possessory interest (assuming the other elements
of the crime are present), the Legislature has made
carjacking more nearly a crime against the person than a
crime against property.”); see also People v. Ossman, No.
A097209, 2003 WL 204715, at *3 (Cal. Ct. App. Jan. 31,
2003) (unpublished) (“[T]he owner of a vehicle may consent
to another’s possession of the vehicle, and thereafter, the
owner, or someone at the owner’s behest, may through force
or fear take possession of the owner’s car and thereby
commit a carjacking.”).
The California courts’ descriptions of § 215’s elements
leave no doubt that California’s carjacking statute
criminalizes more conduct than a generic theft offense.
Intent to steal means intent to deprive someone who has a
superior possessory interest in property of that property. But
an individual can be convicted of violating California’s
carjacking statute even if they take a car from someone who
has an inferior possessory interest in the car—or none at all.
 USA V. OROZCO-OROZCO 15

Section 215 is therefore overly broad within the meaning of
the Taylor analysis.
C.
The Supreme Court has been clear that for a statute to be
deemed broader than a generic offense, there must be “a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.” Gonzales, 549 U.S. at 193.
Section 215’s overbreadth is not merely hypothetical.
California courts have applied the statute in a wider swath of
circumstances than those in which the generic definition of
a theft offense would apply.
For example, in People v. Sinclair, the California Court
of Appeal affirmed the defendant’s § 215 carjacking
conviction where the defendant, acting on behalf of a car’s
jailed titleholder, used force to take possession of the car
from an unauthorized driver. No. C088135, 2020 WL
486847, at *1–4 (Cal. Ct. App. Jan. 23, 2020) (unpublished).
The conduct in Sinclair would not qualify as a generic theft
offense because the defendant lacked the specific intent to
steal. Sinclair is consistent with the Montoya court’s
explanation that a defendant can commit § 215 carjacking
against the current driver or passengers in a vehicle, even if
their possessory interest is inferior to that of the defendant.
See 94 P.3d at 1100; see also People v. Markbreiter, No.
D076914, 2021 WL 1621988, at *3–5 (Cal. Ct. App. Apr.
27, 2021) (unpublished) (affirming § 215 carjacking
conviction where defendant used force to stop a repossession
agent from towing defendant’s own car). These case
examples make clear that California courts in fact apply
§ 215 carjacking to sweep in more conduct than a generic
theft offense.
16 USA V. OROZCO-OROZCO

Justice Werdegar’s concurring opinion in Montoya
reinforces our conclusion that § 215 criminalizes more
conduct than a generic theft offense. Justice Werdegar
joined the Montoya majority but wrote separately to address
the defendant’s unavailing argument that carjacking requires
an intent to steal because § 215 requires a “felonious taking,”
and in People v. Tufunga, 987 P.2d 168 (Cal. 1999), the
California Supreme Court concluded that the words
“felonious taking” incorporated common-law intent to steal
into the robbery offense codified at California Penal Code
§ 211. Montoya, 94 P.3d at 1101–02 (Werdegar, J.,
concurring). The Montoya majority did not reach this
argument, but Justice Werdegar pointed out that the
majority’s reasoning necessarily rejected it. Montoya, 94
P.3d at 1102 (Werdegar, J., concurring) (“Obviously, if
defendant is right, the majority is wrong.”).
In Justice Werdegar’s view, the majority should have
expressly concluded that “the Legislature did not intend
simply to incorporate the narrow common law
understanding of ‘felonious taking’” into § 215. Id. at 1103.
Justice Werdegar pointed out that the text of § 215 uses the
word “possession” three times, and that § 215, which was
not enacted until 1993, “responds to a relatively modern,
urban problem,” while § 211 robbery dates to the mid-
nineteenth century. Id. at 1102–03. The California Court of
Appeal subsequently followed Justice Werdegar’s view that
the California legislature intended for the phrase “felonious
taking” to have different meanings in sections 211 and 215.
See People v. Cabrera, 152 Cal. App. 4th 695, 701–03
(2007) (holding that § 215 carjacking does not allow for a
claim-of-right defense because carjacking is not a crime
against ownership).
 USA V. OROZCO-OROZCO 17

The jury instructions for sections 211 and 215 further
demonstrate the difference in criminal intent required by the
two statutes. The robbery instruction requires the
government to show that the defendant used force or fear to
take “property that was not (his/her) own” with the intent “to
deprive the owner of the property permanently” or for an
extended period of time. Cal. Crim. Jury Instruction No.
1600 (2023). In contrast, the carjacking instruction requires
the government to show that the defendant, whether or not
the defendant was the vehicle’s owner, used force or fear to
take a vehicle from “a person who possessed the vehicle or
was its passenger” with the intent to deprive that person of
possession permanently or temporarily. See Cal. Crim. Jury
Instruction No. 1650 (2023).
In sum, despite § 215’s use of the common-law phrase
“felonious taking,” carjacking in California does not require
a showing of intent to steal. Rather, § 215 requires only that
the defendant intend to permanently or temporarily deprive
the current driver or passengers of their possession of the
vehicle, by force or by fear. We are bound by the California
Supreme Court’s statement of the elements of § 215. See
Johnson, 559 U.S. at 138. We therefore hold that § 215 is
not a categorical match for a generic theft offense and thus
is not an aggravated felony under the INA. 7

7
We need not consider the “modified categorical approach” to decide
whether § 215 carjacking qualifies as a generic theft offense. The
modified categorical approach applies to “divisible statute[s]” that “set[]
out one or more elements of the offense in the alternative.” Descamps v.
United States, 570 U.S. 254, 257 (2013). For divisible statutes, courts
may “consult a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of the
defendant’s prior conviction,” and then conduct the categorical analysis
with respect to the elements with which the defendant was convicted. Id.
18 USA V. OROZCO-OROZCO

D.
The Government argues that we should disregard the
California Supreme Court’s statements identifying the
elements of § 215 because we have previously held that
crimes that use the word “possession” rather than
“ownership” can qualify as generic theft offenses. See, e.g.,
Martinez-Hernandez, 932 F.3d at 1202. As explained above,
the focus on the words “ownership” and “possession” by
both Orozco and the Government obscures the relevant
inquiry. The import of the California Supreme Court’s
decision in Montoya is not that carjacking is merely a crime
against possession. Montoya explains that carjacking can be
committed against whomever the current driver or
passengers of a vehicle are, regardless of the current driver’s
or passengers’ possessory interests. Accordingly, in order to
convict a defendant of § 215 carjacking, the State need not
show that the defendant acted with the specific intent to
steal.
The Government also argues that our decisions in
Martinez-Hernandez and United States v. Velasquez-
Bosque, 601 F.3d 955 (9th Cir. 2010), superseded by
regulation as stated in United States v. Baldon, 956 F.3d
1115, 1125–26 (9th Cir. 2020), compel the conclusion that
§ 215 carjacking is a categorical match for a generic theft
offense. We disagree.
In Martinez-Hernandez, we held that robbery under
§ 211 of the California Penal Code is an aggravated felony
because it is a categorical match for a generic theft offense.

Section 215 identifies just one set of elements for the government to
satisfy and therefore is not a divisible statute. See Cal. Penal Code § 215;
Cal. Crim. Jury Instruction No. 1650.
 USA V. OROZCO-OROZCO 19

932 F.3d at 1202. In so holding, we relied on our decision
in Alvarado-Pineda, 774 F.3d at 1202, where we held that
robbery under Washington law is a categorical match for a
generic theft offense. 932 F.3d at 1206. We also relied on
the California Supreme Court’s repeated holding that
“specific intent to steal is an essential element of § 211
robbery.” Id. (citing People v. Anderson, 252 P.3d 968, 972
(Cal. 2011); People v. Pollock, 89 P.3d 353, 367 (Cal. 2004);
People v. Lewis, 22 P.3d 392, 419 (Cal. 2001)).
The analysis for § 215 carjacking is different because the
California Supreme Court made clear in Montoya that § 215
carjacking can be committed without a specific intent to
steal. See 94 P.3d at 1100; see also id. at 1102 (Werdegar,
J., concurring). Because the California Supreme Court has
concluded that § 211 robbery and § 215 carjacking do not
share the same intent element, our conclusion that § 215 is
not a categorical match for a generic theft offense is
consistent with our decision in Martinez-Hernandez.
Velasquez-Bosque does not undermine our conclusion.
In Velasquez-Bosque, we held that § 215 carjacking
constituted a “crime of violence” under a previous version
of the United States Sentencing Guidelines because
carjacking was a categorical match for a combination of
robbery and extortion under the enumerated-offenses clause
of the Guideline’s “crime of violence” definition. 601 F.3d
at 957–59. We explained in Velasquez-Bosque that our
holding was “largely controlled by our decision in United
States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008),”
where we held that § 211 robbery was a crime of violence
under the Sentencing Guidelines. Id. at 958. We concluded
that Becerril-Lopez controlled because § 211 robbery and
§ 215 carjacking are “substantially similar” in “all material
respects.” Id. at 959. We reasoned that both crimes require:
20 USA V. OROZCO-OROZCO

“[1] taking personal property in the possession of another
person [2] from his or her immediate presence, [3] against
that person’s will, and [4] accomplished by means of force
or fear.” Id.
Velasquez-Bosque does not discuss the California
Supreme Court’s decision in Montoya, and it does not
address the differences between the criminal-intent element
in California’s robbery statute and the criminal-intent
element in California’s carjacking statute. Because
Velasquez-Bosque did not consider whether California’s
carjacking offense was a categorical match for a generic
theft offense, the differences between the criminal intent
necessary to prove robbery and the criminal intent necessary
to prove carjacking were not directly at issue and thus were
not among the material similarities we identified between
robbery and carjacking. See Sakamoto v. Duty Free
Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985)
(“[U]nstated assumptions on non-litigated issues are not
precedential holdings binding future decisions.”); e.g.,
Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (declining
to follow prior cases in which the issue at hand had not been
“squarely addressed”). In addition, “after the 2016
amendments to the Sentencing Guidelines,” § 215
carjacking is “no longer a categorical match for generic
robbery and extortion” and “Velasquez-Bosque’s holding to
the contrary is no longer good law.” Baldon, 956 F.3d at
1126. Accordingly, Velasquez-Bosque does not require that
§ 215 carjacking is a categorical match for a generic theft
offense.
E.
Because § 215 carjacking is not an aggravated felony
under the INA, Orozco’s 2013 final administrative order of
 USA V. OROZCO-OROZCO 21

removal was defective. See Martinez, 786 F.3d at 1230. To
show that this defect was “fundamentally unfair” under
§ 1326(d)(3), Orozco must show that the defect prejudiced
him. See Alvarado-Pineda, 774 F.3d at 1201. Orozco must
also establish the first two elements of § 1326(d): that (1) he
has exhausted his administrative remedies; and (2) his
deportation proceedings unfairly deprived him of an
opportunity for judicial review. See United States v.
Palomar-Santiago, 593 U.S. 321, 329 (2021). The district
court denied Orozco’s motion to dismiss solely because, in
the district court’s view, he could not show a defect in his
underlying order of removal and thus could not satisfy
§ 1326(d)(3). The district court did not reach whether
Orozco satisfied § 1326(d)(1) or (2), or prejudice under
§ 1326(d)(3). In Palomar-Santiago, the Supreme Court
clarified that “each of the statutory requirements of
§ 1326(d) is mandatory.” Id. Palomar-Santiago abrogated
our prior caselaw that excused a defendant from satisfying
the requirements of § 1326(d)(1) and (2) if the conviction
that served as the predicate for the underlying final order of
removal was not a qualifying aggravated felony. Id. at 326
(citing United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir.
2017)).
Orozco argues that our decision in United States v.
Valdivia-Flores nevertheless requires us to conclude that he
has established all three elements of § 1326(d). See 876 F.3d
1201 (9th Cir. 2017), overruled on other grounds by Alfred,
64 F.4th 1025. Alternatively, he asks that we remand for the
district court to make further factual findings.
We decided Valdivia-Flores prior to the Supreme
Court’s decision in Palomar-Santiago. In Valdivia-Flores,
we held that the drug trafficking conviction underlying a
nonresident alien’s final order of removal did not qualify as
22 USA V. OROZCO-OROZCO

an aggravated felony. Id. at 1210. We also concluded that
the defendant satisfied § 1326(d)(1) and (2). Id. at 1205–06.
But there, the record and arguments established that the
defendant’s waiver of judicial review of the final removal
order was not considered and intelligent. See id. at 1206. In
Orozco’s case, the district court expressly declined to make
any findings of fact as to § 1326(d)(1) and (2), and the
Government does not concede that Orozco has satisfied
§ 1326(d)(1) and (2).
On appeal, we cannot make the factual findings
necessary to determine whether Orozco’s waiver of judicial
review was considered and intelligent. See United States v.
Lujan-Castro, 602 F.2d 877, 878 (9th Cir. 1979) (per
curiam) (“The district court’s conclusion that the waiver was
knowingly and intelligently executed is a finding of fact that
may not be disturbed unless clearly erroneous.”). The
narrow circumstances that allow us to consider factual issues
related to the waiver inquiry in the first instance are not
present here. See United States v. Cisneros-Rodriguez, 813
F.3d 748, 757 (9th Cir. 2015) (recognizing that “[w]e would
ordinarily remand to the district court” but declining to do so
because the district judge had retired, there was a transcript
of the relevant testimony, and it was unlikely a new district
judge would be able to conduct another evidentiary hearing).
We therefore remand for the district court to consider
whether Orozco satisfied all three prongs of § 1326(d).
IV.
We affirm the district court’s order denying Orozco’s
motion to dismiss his indictment on equal protection
grounds, reverse the district court’s order denying Orozco’s
motion to dismiss his 8 U.S.C. § 1326 charge under
 USA V. OROZCO-OROZCO 23

§ 1326(d), and remand for further proceedings consistent
with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.