United States v. Argimiro Solano , 596 F. App'x 539 ( 2015 )


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  •                                                                                  FILED
    UNITED STATES COURT OF APPEALS                                JAN 07 2015
    MOLLY C. DWYER, CLERK
    FOR THE NINTH CIRCUIT                              U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                        No. 13-10589
    Plaintiff - Appellee,              D.C. No. 3:12-cr-00802-WHO-1
    Northern District of California,
    v.                                             San Francisco
    ARGIMIRO POZOS SOLANO, AKA
    Manuel DeJesus Cortez, AKA Romero                ORDER
    Perez, AKA Argiro Pozos Solano, AKA
    Arlimiro Poso Solano, AKA Romero
    Solano,
    Defendant - Appellant.
    Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
    The memorandum disposition filed in this case on September 23, 2014, is
    amended by the attached amended memorandum disposition. With this amended
    memorandum disposition, the panel has unanimously voted to deny appellant’s
    petition for rehearing. The petition for rehearing en banc was circulated to the
    judges of the court, and no judge requested a vote for en banc consideration.
    The petition for rehearing and the petition for rehearing en banc are
    DENIED. The panel will not consider any further petitions for rehearing in
    response to the amended memorandum disposition.
    NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                              JAN 07 2015
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                        No. 13-10589
    Plaintiff - Appellee,              D.C. No. 3:12-cr-00802-WHO-1
    v.
    AMENDED
    ARGIMIRO SOLANO, AKA Manuel                      MEMORANDUM*
    DeJesus Cortez, AKA Romero Perez,
    AKA Argiro Pozos Solano, AKA Arlimiro
    Poso Solano, AKA Romero Solano,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Northern District of California
    William H. Orrick, District Judge, Presiding
    Submitted September 11, 2014**
    San Francisco, California
    Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
    Defendant Argimiro Solano appeals his conviction for illegal reentry after
    deportation in violation of 
    8 U.S.C. § 1326
    . On appeal, he challenges the district
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    court’s denial of his motion to dismiss his indictment on the ground that the crime
    of rape as defined by section 261(a)(2) of the California Penal Code did not qualify
    as an aggravated felony. We have jurisdiction under 
    28 U.S.C. § 1291
    .
    We have previously held that unlawful sexual penetration under section
    289(a)(1) of the California Penal Code is a crime of violence for purposes of 
    18 U.S.C. § 16
    (b) because it “is precisely the type of felony that by its nature” raises
    “a substantial risk that physical force will be used during the course of the crime.”
    United States v. Sandoval-Orellana, 
    714 F.3d 1174
    , 1179 (9th Cir. 2013) (internal
    quotation marks omitted). Because section 289(a)(1) is identical in material
    respects to section 261(a)(2), that conclusion applies here as well, and therefore a
    rape conviction under section 261(a)(2) of the California Penal Code constitutes a
    “crime of violence” as defined by § 16(b). Because the crime of rape under section
    261(a)(2) is a crime of violence for purposes of § 16(b), it meets the definition of
    “aggravated felony” under 
    8 U.S.C. § 1101
    (a)(43)(F). Accordingly, Solano’s
    collateral challenge to his 1998 removal, as stated in his opening brief on appeal,
    2
    fails, and the district court did not err in denying Solano’s motion to dismiss his
    indictment.1
    After issuance of our ruling in this case, Solano submitted a petition for
    rehearing in which he raised the new argument that at the time he pleaded guilty to
    rape under section 261(a)(2) of the California Penal Code in 1995, his conviction
    would not have counted as an aggravated felony under pre-1996 immigration law.
    Solano waived this argument by raising it for the first time in his petition for
    rehearing. See Boardman v. Estelle, 
    957 F.2d 1523
    , 1535 (9th Cir. 1992) (per
    curiam). But even if we reached the merits, and concluded that Solano’s prior
    conviction did not constitute an aggravated felony in 1995, his collateral attack on
    his deportation order would still fail. Solano had been in prison for three years
    prior to the time the immigration officer made his determination, and therefore
    Solano could not have demonstrated that he was a “person of good moral
    character,” see 
    8 U.S.C. § 1101
    (f)(7) (1994), which was necessary to be eligible for
    either suspension of deportation or voluntary departure. See 8 U.S.C § 1254(a)(1),
    (e)(1) (1994) (repealed in 1996). Because Solano has not demonstrated that he had
    any plausible ground for relief in his deportation proceeding, he cannot
    1
    In light of this ruling, we did not consider whether section 261(a)(2) also
    meets the definition of aggravated felony because it falls within the generic
    definition of rape.
    3
    successfully attack his deportation order. See United States v. Vidal-Mendoza, 
    705 F.3d 1012
    , 1015–16, 1021 (9th Cir. 2013).
    AFFIRMED.
    4
    

Document Info

Docket Number: 13-10589

Citation Numbers: 596 F. App'x 539

Filed Date: 1/7/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023