United States v. Orozco-Orozco

94 F.4th 1118

UNITED STATES of America, Plaintiff-Appellee, v. Melchor OROZCO-OROZCO, Defendant-Appellant.

No. 22-50146

United States Court of Appeals, Ninth Circuit

Argued and Submitted August 15, 2023 Pasadena, California

Filed March 12, 2024

Appeal from the United States District Court for the Southern District of California, Todd W. Robinson, District Judge, Presiding, D.C. No. 3:21-cr-02349-TWR-1

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.

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

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. Orozco¹ 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, 33 Cal.4th 1031, 16 Cal.Rptr.3d 902, 94 P.3d 1098, 1100 (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, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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, 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 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 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 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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.

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, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

Because " 'theft' stems from the common law crime of larceny," we have looked to the common law...