Argued and Submitted, Pasadena, California March 6,
As Corrected May 21, 2014.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-03248-BTM-1. Barry T. Moskowitz, District Judge, Presiding.
Knut S. Johnson, San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter and Jill L. Burkhardt, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Jay S. Bybee,
Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.
BEA, Circuit Judge:
This case requires us to determine whether the crime of aggravated assault, under Arizona Revised Statutes (" A.R.S." ) § 13-1203(A)(2) and § 13-1204(A)(2), constitutes a " crime of violence" under the Immigration and Nationality Act (" I.N.A." ) § 101(a)(43)(F) and 18 U.S.C. § 16, such that an individual convicted under those Arizona statutes would be ineligible
for voluntary departure under 8 C.F.R. § 1240.26(b)(1)(i)(E). Applying the modified categorical approach, we hold that Defendant-Appellant Armando Cabrera-Perez's conviction for aggravated assault under A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2) constitutes such a " crime of violence." As a result, Cabrera-Perez was not eligible for voluntary departure at his February 9, 2005 immigration hearing. Accordingly, Cabrera-Perez's attempt to attack collaterally the deportation order underlying his illegal reentry conviction because he was not adequately advised of the voluntary departure remedy fails.
In 2004, Cabrera-Perez was charged by the state of Arizona's direct complaint with aggravated assault under A.R.S. § 13-1203 and § 13-1204. Count 3 stated:
Armando Cabrera Perez . . ., on or about the 26th day of October, 2003, using a handgun, a deadly weapon or dangerous instrument, intentionally placed [his victim] in reasonable apprehension of imminent physical injury, in violation of [A.R.S] § 13-1203, 13-1204 . . . .
Count 4 stated the same but named a different victim. On April 2, 2004, Cabrera-Perez executed a plea agreement in which he " agree[d] to plead guilty to: Counts 3 and 4" of the direct complaint. Two days later, at his change of plea hearing, the state trial court confirmed that Cabrera-Perez intended to plead guilty to Counts 3 and 4, as described in the plea agreement. As to the factual basis for the plea, Cabrera-Perez's attorney stated:
On October 26th, 2003 . . . [Cabrera-Perez] had a gun and he fired the weapon in the general vicinity of [the two victims], and they were, in fact, afraid for their safety.
The court accepted Cabrera-Perez's guilty plea " to the charges as set forth in the plea agreement" and sentenced him to twelve months' incarceration and four years of probation. On May 4, 2004, the court suspended the execution of the sentence and placed Cabrera-Perez on probation for four years.
On January 26, 2005, the Immigration and Naturalization Service issued Cabrera-Perez a Notice to Appear, which notice charged that Cabrera-Perez was subject to removal as " an alien present in the United States without being admitted or paroled," I.N.A. § 212(a)(6)(A)(i), and as an " alien who has been convicted of . . . a crime involving moral turpitude," I.N.A. § 212(a)(2)(A)(i)(I). On February 9, 2005, Cabrera-Perez appeared at his immigration hearing. When the Immigration Judge (" IJ" ) addressed Cabrera-Perez individually, Cabrera-Perez admitted that he had entered the U.S. illegally in November 2003 and that he was convicted in 2004 for aggravated assault. Cabrera-Perez agreed that both of these admissions were " correct reasons [for him] to be removed from the United States." The IJ then stated:
Based on your testimony and review of the statute I find that each of the separate components of the aggravated assault statute to be a crime involving moral turpitude. Based on the felony designation I find you are subject ...