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United States v. Arriaga-Pinon

United States Court of Appeals, Ninth Circuit

April 7, 2017

United States of America, Plaintiff-Appellee,
v.
Guillermo Arriaga-Pinon, AKA Guillermo Pinon-Ariaga, Defendant-Appellant.

          Argued and Submitted February 8, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California D.C. No. 3:16-cr-00219-DMS-1 Dana M. Sabraw, District Judge, Presiding

          Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

          Mark R. Rehe (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Sidney R. Thomas, Chief Judge, and Andrew J. Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated a sentence and remanded for resentencing in a case in which the defendant challenged the district court's determination that his prior conviction under California Vehicle Code section 10851(a) constituted an aggravated felony.

         The defendant contended that Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), which held that section 10851(a) is a divisible statute such that the modified categorical approach applies, must be overruled because United States v. Mathis, 136 S.Ct. 2243 (2016), compels the conclusion that the statute is indivisible. The panel wrote that it did not need to reach that question because even assuming Duenas-Alvarez remains good law, the conviction fails to satisfy the modified categorical test and therefore is not a qualifying predicate offense. The panel explained that United States v. Vidal, 504 F.3d 1072 (1997) (en banc), compels the conclusion that the judicially noticeable documents in this case are not sufficient to establish whether the defendant - who, in the plea colloquy, pled no contest to what the court described as "unlawful driving or taking of a vehicle in violation of Vehicle Code Section 10851(a)" - was convicted as a principal or as an accessory after the fact.

         Concurring, Chief Judge Thomas wrote that although there was no need in this case to reach the issue whether Duenas-Alvarez remained good law, Mathis has altered the legal landscape and requires this court, at the appropriate time, to re-examine its jurisprudence as to the divisibility of section 10851(a).

          OPINION

          THOMAS, Chief Judge:

         Guillermo Arriaga-Pinon ("Arriaga") appeals an eighteen-month sentence imposed after he pleaded no contest to unlawful reentry following removal in violation of 8 U.S.C. §§ 1326(a) and (b). Arriaga contends that, in light of the United States Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), the district court erred when it applied the modified categorical approach to determine that his 2014 conviction under California Vehicle Code section 10851(a) constituted an aggravated felony. In the alternative, Arriaga argues that even if section 10851(a) is divisible, and the modified categorical approach applied, the record of conviction does not demonstrate that he was convicted of an aggravated felony theft offense. We agree with Arriaga's alternative argument. We therefore vacate Arriaga's sentence and remand for resentencing.

         I

         After waiving indictment, Arriaga was charged with unlawful reentry into the United States in violation of 8 U.S.C. §§ 1326(a)[1] and (b).[2] According to the information, he was found in California in January 2016 despite having been "excluded, deported and removed from the United States to Mexico" in December 2015. Arriaga pleaded guilty and was sentenced to eighteen months in prison and two years of supervised release.

         Arriaga had previously been convicted of violating California Vehicle Code section 10851(a) in January 2014. Count One of the relevant complaint alleged:

On or about January 17, 2014, [Arriaga] . . . did unlawfully drive and take a certain vehicle, to wit, 1985 Nissan . . . then and there the personal property of DANIEL BAUTISTA, ABRAHAM LOPEZ without the consent of and with intent, either permanently or temporarily, to ...

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