United States v. Jose Alvarado-Pineda , 774 F.3d 1198 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50528
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00537-
BTM-1
JOSE ALVARADO-PINEDA, AKA Jose
Alvarado-Pinedo,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, Chief District Judge, Presiding
Argued and Submitted
November 20, 2014—Pasadena, California
Filed December 19, 2014
Before: A. Wallace Tashima, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge W. Fletcher
2 UNITED STATES V. ALVARADO-PINEDA
SUMMARY*
Criminal Law
Affirming a conviction for illegal reentry, the panel held
that a conviction of second-degree robbery under section
9A.56.190 of the Revised Code of Washington is a “theft
offense,” and that such a conviction, accompanied by a
sentence of imprisonment of at least one year, therefore
qualifies as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(G).
The panel concluded that because the defendant’s
aggravated felony conviction renders him ineligible for relief
from his underlying removal orders, he suffered no prejudice
from any procedural defects that may have occurred in the
removal proceedings, and the district court therefore correctly
denied his motion to dismiss the indictment based on those
alleged defects.
COUNSEL
Joseph M. McMullen (argued), San Diego, California, for
Defendant-Appellant.
Christopher Alexander (argued), Assistant United States
Attorney, and Bruce R. Castetter, Chief, Appellate Section,
Criminal Division, Office of the United States Attorney, San
Diego, California, for Plaintiff-Appellee.
*
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. ALVARADO-PINEDA 3
OPINION
W. FLETCHER, Circuit Judge:
In this appeal, we must decide whether a defendant
convicted of second-degree robbery under section 9A.56.190
of the Revised Code of Washington and sentenced to prison
for at least one year has been convicted of an aggravated
felony under federal law. We hold that he has.
I. Background
Jose Alvarado-Pineda is a 29-year-old Mexican national
who first entered the United States in about 2003. In 2004, he
stole a wallet in Seattle, Washington, and was convicted of
second-degree robbery in violation of section 9A.56.190 of
the Revised Code of Washington. In 2005, while serving a
14-month prison sentence, he was served with a notice
informing him of the Department of Homeland Security
(“DHS”)’s intent to issue a final administrative removal
order. The notice alleged that Alvarado-Pineda had been
convicted of an aggravated felony — the robbery — and
charged him as removable on that basis. Alvarado-Pineda
signed the portion of the notice admitting the allegations and
the charge, and waiving his right to an appeal. He was
removed to Mexico three days later.
Over the next six years, Alvarado-Pineda reentered the
United States three times. Each time, he was apprehended.
After his first reentry, in 2005, he was charged with two
counts of illegal entry in violation of 8 U.S.C. § 1325. He
pled guilty to the charges and was sentenced to twelve
months in prison. In 2006, after serving that sentence, he was
served with a notice to appear; he stipulated to his
4 UNITED STATES V. ALVARADO-PINEDA
removability, waiving his right to a hearing and an appeal,
and was removed to Mexico. After his second reentry, in
2006, he was charged with illegal reentry in violation of
8 U.S.C. § 1326. He pled guilty to a lesser charge of illegal
entry, and was sentenced to four years in prison. In the
written plea agreement, Alvarado-Pineda agreed to a
stipulated removal and to “waive[] any right to appeal, reopen
or challenge” the subsequently entered removal order. In
2010, near the end of his prison term, DHS reinstated
Alvarado-Pineda’s 2006 removal order, and removed him to
Mexico.
In 2011, Alvarado-Pineda reentered the United States for
a third and final time. He was apprehended near the U.S.-
Mexico border and was indicted on one count of illegal
reentry in violation of 8 U.S.C. § 1326. Before the district
court, Alvarado-Pineda moved to dismiss the indictment on
the ground that his prior removal orders had been entered in
violation of his Fifth Amendment due process rights. The
district court denied the motion and, after a bench trial,
convicted Alvarado-Pineda of illegal reentry. This appeal
followed.
II. Discussion
We review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based
on alleged due process defects in an underlying deportation
proceeding. United States v. Ubaldo-Figueroa, 364 F.3d
1042, 1047 (9th Cir. 2004).
UNITED STATES V. ALVARADO-PINEDA 5
A
“To convict an alien criminal defendant of illegal reentry
under 8 U.S.C. § 1326, the government must prove that the
alien left the United States under order of exclusion,
deportation, or removal, and then illegally reentered.” United
States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir.
2011) (internal footnote omitted). A noncitizen charged with
illegal reentry therefore “has a Fifth Amendment right to
collaterally attack his removal order because the removal
order serves as a predicate element of his conviction.”
Ubaldo-Figueroa, 364 F.3d at 1047; see also United States v.
Mendoza-Lopez, 481 U.S. 828, 837–38 (1987). Since 1996,
that right has been codified at 8 U.S.C. § 1326(d).
To mount a collateral attack under § 1326(d),
a defendant must, within constitutional
limitations, demonstrate (1) that he exhausted
all administrative remedies available to him to
appeal his removal order, (2) that the
underlying removal proceedings at which the
order was issued improperly deprived him of
the opportunity for judicial review, and
(3) that the entry of the order was
fundamentally unfair.
Ubaldo-Figueroa, 364 F.3d at 1048; see 8 U.S.C. § 1326(d).
An underlying 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. Ubaldo-Figueroa,
364 F.3d at 1048.
6 UNITED STATES V. ALVARADO-PINEDA
As a general matter, a defendant who has been convicted
of an aggravated felony cannot show that he was prejudiced
by defects in his underlying proceedings. United States v.
Garcia-Martinez, 228 F.3d 956, 963–64 (9th Cir. 2000). This
is so because noncitizens convicted of aggravated felonies are
removable on that basis, see 8 U.S.C. § 1227(a)(2)(A)(iii),
and are ineligible for almost all forms of discretionary relief.
See id. § 1228(b)(5) (barring persons not admitted into the
United States, and convicted of aggravated felonies, from
“any relief from removal that the Attorney General may grant
in the Attorney General’s discretion”); see also id.
§ 1158(b)(2)(B)(i) (barring persons convicted of aggravated
felonies from applying for asylum); id. § 1229b(a)(3)
(cancellation of removal); id. § 1229c(a)(1) (voluntary
departure).
There are exceptions to this general rule, but they are not
relevant here. For example, a person who has been convicted
of some statutorily enumerated aggravated felonies, but who
is otherwise eligible to apply for admission into the United
States, may apply for a waiver of inadmissibility under
8 U.S.C. § 1182(h). See Negrete-Ramirez v. Holder, 741 F.3d
1047, 1053–54 (9th Cir. 2014). An aggravated felony
conviction also does not automatically bar an application for
certain forms of hardship relief, including withholding of
removal, see 8 U.S.C. § 1231(b)(3), and a T- or U-visa, see
id. § 1101(a)(15)(T), (U). Alvarado-Pineda has not
demonstrated that he has “plausible grounds for relief” under
any of these provisions, or that any other exceptions apply.
United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th
Cir. 2003).
UNITED STATES V. ALVARADO-PINEDA 7
Accordingly, if Alvarado-Pineda was convicted of an
aggravated felony, his collateral attacks based on alleged
procedural defects must necessarily fail.
B
The government offers two reasons why Washington
second-degree robbery constitutes an aggravated felony. It
argues that (1) it is a “crime of violence,” 8 U.S.C.
§ 1101(a)(43)(F); and (2) it is a “theft offense,” id.§ 1101(a)(43)(G). If second-degree robbery under
Washington law is either a crime of violence or a theft
offense, a defendant convicted of violating the statute and
sentenced to a “term of imprisonment [of] at least one year”
has been convicted of an aggravated felony. Id.
§ 1101(a)(43)(F), (G). The district court concluded that
second-degree robbery is a “crime of violence,” and on that
basis held that Alvarado-Pineda, who was sentenced to a 14-
month prison term, had been convicted of an aggravated
felony. We affirm on a different ground: we hold that a
conviction under the statute is a conviction of a “theft
offense.”
Under the Immigration and Nationality Act, a statute may
qualify as an aggravated felony if it is a “theft offense.”
8 U.S.C. § 1101(a)(43)(G). 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.” United
States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.
2002) (en banc) (quoting Hernandez-Mancilla v. INS,
246 F.3d 1002, 1009 (7th Cir. 2001)). 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
8 UNITED STATES V. ALVARADO-PINEDA
benefits of ownership.” See id.; see also Mandujano-Real v.
Mukasey, 526 F.3d 585, 589–90 (9th Cir. 2008).
To determine whether a defendant has been convicted of
a “generic” crime, such as theft, we employ the categorical
approach. That is, we “compare the elements of the statute
forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime.” Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). “The prior conviction qualifies
as [the generic offense] only if the statute’s elements are the
same as, or narrower than, those of the generic offense.” Id.A state offense qualifies as a generic offense — and
therefore, in this case, as an aggravated felony — only if “the
‘full range of conduct covered by [the state statute] falls
within the meaning’” of the generic offense. Mandujano-
Real, 526 F.3d at 589 (quoting Martinez-Perez v. Gonzales,
417 F.3d 1022, 1026 (9th Cir. 2005)).
The State of Washington defines second-degree robbery
as the “tak[ing of] personal property from the person of
another or in his or her presence against his or her will,”
when accompanied by the use of force or the fear of injury.
Wash. Rev. Code § 9A.56.190. Though the statute does not
explicitly provide that specific intent to steal is an element of
the crime, the state courts have so held. State v. Sublett,
292 P.3d 715, 730 (Wash. 2012). The crime thus “requires
(1) taking (2) personal property (3) from another person or
from another’s immediate presence (4) against his or her will
(5) by force or threatened force (6) with the specific intent to
steal.” Id. A comparison of the elements of the statute to the
elements of generic theft makes clear that the “full range of
conduct” criminalized by Washington second-degree robbery
falls within the meaning of generic theft in that both require
(1) the taking of (2) personal property (3) without consent and
UNITED STATES V. ALVARADO-PINEDA 9
(4) with the specific intent to steal. One leading treatise
states that “[r]obbery consists of all [the] elements of 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. 3 Wayne R. LaFave,
Substantive Criminal Law § 20.3 (2d ed. 2003). In
Washington, as elsewhere, theft is a lesser-included offense
of robbery. State v. Satterlee, 361 P.2d 168, 169 (Wash.
1961); State v. Herrera, 977 P.2d 12, 13 n.1 (Wash. Ct. App.
1999); see also LaFave, supra, § 20.3 n.2. That is, a
defendant charged with robbery can be convicted of theft if
the evidence of force or fear is insufficient to sustain a guilty
verdict on robbery.
Alvarado-Pineda cites Washington cases that define
somewhat broadly the “force” required by the statute. See
State v. Ammlung, 644 P.2d 717, 721 (Wash. Ct. App. 1982)
(“Any force or threat, no matter how slight, which induces an
owner to part with his property is sufficient to sustain a
robbery conviction.”). While this authority might bear on
whether Washington second-degree robbery is a “crime of
violence” — a question we do not reach — it has little
relevance to whether the statute criminalizes the essential
elements of theft.
We conclude that a conviction for Washington second-
degree robbery, where accompanied by a sentence of at least
one year, qualifies as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(G). Because Alvarado-Pineda was sentenced
to a 14-month prison term, he was convicted of an aggravated
felony.
10 UNITED STATES V. ALVARADO-PINEDA
Conclusion
Because we conclude that Alvarado-Pineda was convicted
of an aggravated felony in 2004, we need not decide whether
his underlying removal proceedings were defective, or
whether the plea agreement he signed in 2007 bars him from
attacking those proceedings. Because he is ineligible for
relief, he suffered no prejudice from any procedural defects
that may have occurred, and the district court correctly denied
his motion to dismiss his indictment.
AFFIRMED.