Jose Murillo-Prado v. Eric Holder, Jr. , 735 F.3d 1152 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS MURILLO-PRADO, No. 09-72034
Petitioner,
Agency No.
v. A042-062-854
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 7, 2013*
San Francisco, California
Filed November 20, 2013
Before: Jerome Farris, Susan H. Black,**
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
2 MURILLO-PRADO V. HOLDER
SUMMARY***
Immigration
The panel dismissed for lack of jurisdiction Jose Luis
Murillo-Prado’s petition for review from the Board of
Immigration Appeals’ decision finding that his conviction for
illegally conducting an enterprise, in violation of Arizona
Revised Statute § 13-2301, constituted a racketeering
aggravated felony.
Applying the modified categorical approach because the
definition of racketeering under Arizona law is divisible, the
panel held that the indictment, plea agreement, and
sentencing order provided clear and convincing evidence that
Murillo-Prado was convicted of a racketeering aggravated
felony under 8 U.S.C. § 1101(a)(43)(J), and that he was thus
ineligible for cancellation of removal.
COUNSEL
John M. Pope, Pope & Associates, Phoenix, Arizona, for
Petitioner.
Tony West, Assistant Attorney General; Mary Jane Candaux,
Assistant Director; Michael C. Heyse, Trial Attorney, United
States Department of Justice, Office of Immigration
Litigation Civil Division, Washington D.C., for Respondent.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MURILLO-PRADO V. HOLDER 3
OPINION
PER CURIAM:
Jose Murillo-Prado petitions for review from the decision
of the Board of Immigration Appeals (BIA) finding him
ineligible for cancellation of removal because his conviction
for racketeering under Arizona law constituted an aggravated
felony under 8 U.S.C. § 1101(a)(43)(J). We dismiss the
petition.
BACKGROUND
Jose Luis Murillo-Prado is a native and citizen of Mexico.
He was admitted as a conditional lawful permanent resident
of the United States on April 10, 1989. Those conditions
were removed on June 26, 1991.
On November 26, 2008, the Department of Homeland
Security (DHS) issued Murillo-Prado a Notice to Appear
(NTA). In allegation six of the NTA, the DHS alleged that on
June 7, 2006, Murillo-Prado was convicted of Illegally
Conducting an Enterprise, in violation of, inter alia, Ariz.
Rev. Stat. § 13-2301. The NTA alleged Murillo-Prado was
sentenced to three years in prison for this conviction.
On the basis of allegation six, the DHS charged Murillo-
Prado with removability as an alien who was convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The
DHS relied on 8 U.S.C. § 1101(a)(43)(J), which includes as
an aggravated felony an offense described in 18 U.S.C.
§ 1962 relating to racketeer influenced corrupt organizations
for which a sentence of imprisonment of one year or more
can be imposed.
4 MURILLO-PRADO V. HOLDER
At a master calendar hearing on January 22, 2009,
Murillo-Prado appeared with counsel and denied allegation
six of the NTA. At a hearing before the Immigration Judge
(IJ) on February 25, 2009, the IJ sustained the racketeering
charge of removability based on the evidence in the record.
On March 11, 2009, the IJ ordered Murillo-Prado removed
from the United States to Mexico based in part on the IJ’s
determination that Murillo-Prado’s conviction for
racketeering was an aggravated felony.
The IJ explained he had sustained allegation six based on
the documentation establishing Murillo-Prado’s conviction
for illegally conducting an enterprise and a sentence of three
years out of Maricopa County, Arizona Superior Court on
June 7, 2006. Because Murillo-Prado was convicted of an
aggravated felony, the IJ found he was ineligible for
cancellation of removal, voluntary departure, or any other
relief.1
Murillo-Prado appealed to the BIA. He asserted the IJ
erred in finding him removable as an aggravated felon for
racketeering because the Arizona statute of conviction is
missing essential elements of the generic or federal definition
of racketeering. Applying the modified categorical approach,
the BIA determined the language in the record of conviction
made it clear that Murillo-Prado was convicted of an
aggravated felony as defined by federal law. Thus, the BIA
found no reversible error in the IJ’s holding that Murillo-
1
The Immigration Judge sustained the DHS’s charge that Murillo-Prado
was also removable for having been convicted of a firearms offense under
8 U.S.C. § 1227(a)(2)(C). This firearms offense, unlike an aggravated
felony, does not bar Murillo-Prado’s application for other forms of relief
and is not before this Court.
MURILLO-PRADO V. HOLDER 5
Prado is an aggravated felon and ineligible for cancellation of
removal.
JURISDICTION AND STANDARD OF REVIEW
We lack jurisdiction “to review an order of removal
against an alien removable for having committed an
aggravated felony.” Lopez-Jacuinde v. Holder, 600 F.3d
1215, 1217 (9th Cir. 2010); 8 U.S.C. § 1252(a)(2)(C).
“Nonetheless, this Court retains jurisdiction to determine its
jurisdiction, which includes determining whether a particular
offense constitutes an offense governed by the jurisdiction-
stripping provisions.” Cazarez-Gutierrez v. Ashcroft,
382 F.3d 905, 909 (9th Cir. 2004). Consequently, we can
reach the question of whether Romero’s conviction
constituted an aggravated felony, a question we review de
novo. Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1038
(9th Cir. 2011).
DISCUSSION
Murillo-Prado contends the DHS did not “establish
unequivocally” that his state racketeering offense qualified as
an aggravated felony because the documents submitted by the
DHS to prove his prior conviction leave the court to speculate
regarding which subsection of the Arizona racketeering
statute he violated. We disagree and hold that Murillo-
Prado’s conviction for racketeering under Arizona law
constitutes an aggravated felony as defined in
§ 1101(a)(43)(J).
An “alien who is convicted of an aggravated felony at any
time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Immigration and Nationality Act
6 MURILLO-PRADO V. HOLDER
defines an “aggravated felony” in a set of listed offenses that
includes “an offense described in section 1962 of Title 18
(relating to racketeer influenced corrupt organizations) . . . for
which a sentence of one year imprisonment or more may be
imposed.” 8 U.S.C. § 1101(a)(43)(J).
To determine whether a past conviction qualifies as an
aggravated felony, courts use either the categorical or
modified categorical approach. Duenas-Alvarez v. Holder,
__ F.3d __, 2013 WL 4417587 at *1 (9th Cir. Aug. 20, 2013).
The categorical approach requires the Court to “compare the
elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime–i.e., the
offense as commonly understood.” Descamps v. United
States, __ U.S. __, 133 S. Ct. 2276, 2281 (2013). “Under
this 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.”
Moncrieffe v. Holder, __ U.S. __, 133 S. Ct. 1678, 1684
(2013) (quotations omitted).
A variant of this method, the modified categorical
approach, is applied “when a prior conviction is for violating
a so-called ‘divisible statute.’” Descamps, 133 S. Ct. at 2281.
A divisible statute is one that
sets out one or more elements of the offense
in the alternative–for example, stating that
burglary involves entry into a building or an
automobile. If one alternative (say, a
building) matches an element in the generic
offense, but the other (say, an automobile)
does not, the modified categorical approach
MURILLO-PRADO V. HOLDER 7
permits . . . courts to 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. The court can do what the
categorical approach demands: compare the
elements of the crime of conviction (including
the alternative element used in the case) with
the elements of the generic crime.
Id.
The federal “generic” crime at issue in this case is the
criminal racketeering statute, 18 U.S.C. § 1962, which
prohibits “any person” from “conduct[ing] or participat[ing],
directly or indirectly, in the conduct of [an] enterprise’s
affairs through a pattern of racketeering activity.” See
Nijhawan v. Holder, 557 U.S. 29, 37 (2009) (listing
subparagraph (J) of 8 U.S.C. § 1101(a)(43) as an example of
where that statute refers to a generic crime). The federal
statute sets out an exhaustive list of crimes that constitute
racketeering activity, including “any act . . . involving . . .
robbery . . . or dealing in a controlled substance,” “wire
fraud,” and “the laundering of monetary instruments.” See
18 U.S.C. § 1961(1).2
2
In greater detail, the definition of “racketeering activity” includes:
(A) any act or threat involving . . . robbery, . . . or
dealing in a controlled substance or listed chemical . . .
which is chargeable under State law and punishable by
imprisonment for more than one year; (B) any act
which is indictable under . . . title 18, United States
Code: . . . section 1343 (relating to wire fraud), . . .
section 1951 (relating to . . . robbery), . . . section 1956
8 MURILLO-PRADO V. HOLDER
As compared to the enumerated federal offenses listed in
18 U.S.C. § 1961(1), Arizona’s definition of racketeering,
Ariz. Rev. Stat. § 13-2301(D)(4), includes two offenses not
explicitly listed in its federal counterpart: (1) “[i]ntentional or
reckless false statements or publications concerning land for
sale or lease or sale of subdivided lands or sale and
mortgaging of unsubdivided lands,” id. § 13-
2301(D)(4)(b)(xvi); and (2) making “[o]bscene or indecent
telephone communications to minors for commercial
purposes,” id. § 13-2301(D)(4)(b)(xxvii).
We apply the modified categorical approach in this case
because the definition of racketeering under Arizona law is
divisible, and contains both offenses that would constitute
racketeering under federal law, and offenses that would not.
We have taken this approach with the Arizona racketeering
statute in other contexts. See Lara-Chacon v. Ashcroft,
345 F.3d 1148, 1152–53 (9th Cir. 2003) (noting the broad
range of conduct punishable under Ariz. Rev. Stat. § 13-
2301(D)(4) and applying the modified categorical approach
to determine whether a petitioner’s racketeering conviction
constituted a “drug trafficking crime”). In applying the
modified categorical approach, the evidence submitted by the
government to prove a prior conviction in an immigration
proceeding “must meet a ‘clear and convincing’ standard.”
Nijhawan, 557 U.S. at 41–42.
(relating to the laundering of monetary instruments)
. . . ; (D) any offense involving . . . the felonious
manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in a controlled
substance or listed chemical . . . punishable under any
law of the United States . . . .
18 U.S.C. § 1961(1).
MURILLO-PRADO V. HOLDER 9
In applying the modified categorical approach, we
evaluate a select list of reviewable documents. Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 887–88 (9th Cir. 2003).
The Supreme Court has held the types of documents a court
may consider include: “the statutory definition, charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 554 U.S. 13,
16 (2005).
Murillo-Prado’s written plea agreement states that he pled
guilty to “Count 2, Illegally Conducting an Enterprise.”
When a plea agreement makes direct reference to a specific
count in the charging document, the charging document “may
be considered in combination with other documents in the
record to determine whether [the petitioner] pled guilty to an
aggravated felony.” United States v. Valdavinos-Torres,
704 F.3d 679, 687 (9th Cir. 2012). Here, Count 2 of the
indictment charged Murillo-Prado and multiple codefendants
with being “employed by or associated with an enterprise,”
and “knowingly conducting such enterprise’s affairs through
racketeering” or knowingly participating “directly or
indirectly in the conduct of the enterprise which they knew
was being conducted through racketeering.” Count 2 of the
indictment specified that the racketeering included:
a. Possession or Use, Possession for Sale,
Transportation for Sale, Importation into
this State, and/or Offer to Transport for
Sale or Import into this State, Marijuana,
Methamphetamine, and Cocaine, in
violation of A.R.S. § 13-3405, 13-3407,
and 13-3408;
10 MURILLO-PRADO V. HOLDER
b. Sale or Transfer, and/or Offer to Sell or
Transfer, Marijuana, Methamphetamine,
and Cocaine, in violation of A.R.S. §§ 13-
3405, 3407, and 13-3408;
c. Use of a Wire Communication in the
Commission of a Drug Related Felony, in
violation of A.R.S. § 13-3417;
d. Money Laundering, in violation of A.R.S.
§ 13-2317; and
e. Armed Robbery, in violation of A.R.S.
§ 13-1902, 13-1903, and 13-1904,
including, but not limited to, the acts of
racketeering described in Counts 3
through 160 of this Indictment . . . .
Each of the stated charges for racketeering has a federal
analogue. Murillo-Prado does not argue that any of his drug-
related, money laundering, or armed robbery racketeering
crimes are not listed in the federal definition of racketeering.
He contends, instead, that we are left to speculate as to which
of the subsections of the racketeering statute he violated
because the sentencing court’s order did not identify a
specific subsection of the racketeering statute. This argument
is meritless because the sentencing court’s order states that
Murillo-Prado’s three-year sentence was imposed because he
pled guilty to Count 2. Count 2 of the indictment provides
the subsections of the racketeering statute to which Murillo-
Prado pled guilty, all of which are included in the federal
racketeering definition. See 18 U.S.C. § 1961(1).
MURILLO-PRADO V. HOLDER 11
The language in the indictment, plea agreement, and
sentencing order is clear and convincing evidence that
Murillo-Prado was convicted of an offense coming within the
definition of “aggravated felony.” See Nijhawan, 557 U.S. at
41–42; Shepard, 544 U.S. at 16. The BIA did not err in
determining that Murillo-Prado’s Arizona conviction for
racketeering constituted an aggravated felony, and that he
was therefore ineligible for cancellation of removal under
8 U.S.C. § 1229b. Consequently, we lack jurisdiction to
review Murillo-Prado’s petition.
PETITION DISMISSED.