and Submitted November 10, 2016 Pasadena, California
from the United States District Court No. 3:14-cr-03700-BAS-1
for the Southern District of California Cynthia A. Bashant,
District Judge, Presiding
M. Johnston III (argued), San Diego, California, for
H. Hong (argued), Assistant United States Attorney; Lindsey
A. Forrester Archer, Special Assistant United States
Attorney; Peter Ko, Chief, Appellate Section, Criminal
Division; United States Attorney's Office, San Diego,
California; for Plaintiff-Appellee.
Before: Diarmuid F. O'Scannlain and Johnnie B. Rawlinson,
Circuit Judges, and Rosemary Marquez, [*] District Judge.
panel reversed a criminal judgment, and remanded, in a case
in which the defendant, who was convicted of attempted
reentry of a removed alien, contended that his 2009 removal
was invalid because his 1997 drug trafficking conviction
under Wash. Rev. Code § 69.50.401 was incorrectly
determined to be an aggravated felony.
panel held that the defendant's waiver of the right to
seek judicial review of the removal order was not considered
and intelligent, where the Notice of Intent to Issue a Final
Administrative Removal Order suggested the defendant could
contest removability only on factual grounds, the defendant
was not represented, and the defendant never had the benefit
of appearing before an immigration judge despite his request
for a hearing.
panel held that the Washington drug trafficking statute is
overbroad compared to its federal analogue because the former
has a more inclusive mens rea requirement for accomplice
liability. The panel held that under a straightforward
application of the categorical approach, the defendant's
conviction therefore cannot support an aggravated felony
determination. Because under Washington law a jury need not
agree on whether a defendant is a principal or accomplice,
the panel held that the Washington drug trafficking statute
is not divisible so far as the distinction between those
roles is concerned. The panel held that the modified
categorical approach therefore may not be applied, and it was
error for the district court to do so.
panel concluded that the defendant was, accordingly,
prejudiced from his inability to seek judicial review for his
2009 removal, and that his collateral attack pursuant to 8
U.S.C. § 1326(d) on the underlying deportation order
should have been successful.
concurring, Judge O'Scannlain wrote separately to
highlight how the result in this case illustrates the bizarre
and arbitrary effects of the ever-spreading categorical
approach for comparing state law offenses to federal criminal
Judge Rawlinson wrote that the majority has impermissibly
veered away from the statute of conviction to find
overbreadth based on its analysis of a statute that was not
part of the prosecution or conviction in this case.
O'SCANNLAIN, CIRCUIT JUDGE.
decide whether a conviction for possession of a controlled
substance with intent to distribute under Washington state
law is an aggravated felony for purposes of federal
Valdivia-Flores is a Mexican citizen who entered the United
States without inspection in 1995. In 1997, he was charged
with and ultimately pled guilty to a violation of
Washington's drug trafficking statute, Wash. Rev. Code
§ 69.50.401. In his Statement of Defendant on Plea of
Guilty, Valdivia-Flores described the crime he was being
charged with as: "possession with intent to deliver-
Heroin." He also wrote out the elements of the crime:
"Possess a controlled substance (heroin) with intent to
distribute it in King County and know it was a narcotic
drug." Finally, stating what made him guilty of Wash.
Rev. Code § 69.50.401 in his own words, Valdivia-Flores
wrote: "On June 20, 1997 in King County WA I did
unlawfully possess with intent to deliver Heroin a controlled
substance and did know it was a controlled substance."
Valdivia-Flores was sentenced to 21 months' imprisonment,
which he served at an accelerated pace over seven months at a
work ethic camp.
he was in the camp, immigration officers prepared a Notice to
Appear which charged Valdivia-Flores with being removable. In
an order dated January 28, 1998, an immigration judge
suspended the immigration proceedings because Valdivia-Flores
was still serving his sentence at the camp and therefore
could not be produced for a hearing. Nonetheless, at the
conclusion of his sentence in April 1998, immigration
officers physically removed Valdivia-Flores to Mexico without
an order. Valdivia-Flores returned to the State of Washington
that same year, again without inspection at the border.
2009, Valdivia-Flores was convicted of malicious mischief in
the third degree in violation of Wash. Rev. Code §
9A.48.090 for smashing the windshield of his wife's
vehicle after an argument. He pled guilty, and his sentence
was suspended. At the time of that prosecution, the
Department of Homeland Security initiated administrative
removal proceedings pursuant to 8 U.S.C. § 1228(b). In
March 2009, he received two copies of a form, one in English
and one in Spanish, titled Notice of Rights and Request for
Disposition. This notice informed Valdivia-Flores that he had
"the right to a hearing before the Immigration Court to
determine whether [he] may remain in the United States."
Valdivia-Flores filled out and signed the Spanish version of
the form, electing to request a hearing before the
March 2009, the Department of Homeland Security issued
Valdivia-Flores a Notice of Intent to Issue a Final
Administrative Removal Order ("Notice of Intent").
It stated that Valdivia-Flores's 1997 conviction under
Wash. Rev. Code § 69.50.401(a) was for an aggravated
felony so that he was removable without a hearing before an
immigration judge. The Notice of Intent informed
Valdivia-Flores of his right to petition for review of his
removal in the appropriate U.S. Circuit Court of Appeals. It
also provided three check-boxes of options by which
Valdivia-Flores could "contest [his]
deportability": (1) he could assert that he was "a
citizen or national of the United States"; (2) he could
assert that he was "a lawful permanent resident";
and (3) he could claim that he was "not convicted of the
criminal offense described" in the Notice of Intent.
Valdivia-Flores did not contest his removal or request
withholding of removal and instead checked a box
acknowledging that he had "the right to remain in the
United States for 14 calendar days in order to apply for
judicial review" and that he "waive[d] this
right." He did not petition for review of the removal
decision and was removed on April 4, 2009. He remained in
Mexico for a few days and then unlawfully reentered the
United States for a third time.
August 13, 2013, Valdivia-Flores was arrested in Washington
for being an illegal alien found in the United States, in
violation of 8 U.S.C. § 1326. He pled guilty and was
convicted in the Western District of Washington in September
2013. Immigration authorities once again initiated removal
proceedings. Valdivia-Flores requested asylum and sought a
stay of removal "for humanitarian reasons, " but
those requests were denied, and Valdivia-Flores was removed
in September 2014.
November 13, 2014, Valdivia-Flores attempted to return (for a
fourth time) to the United States, applying for entry through
the pedestrian lanes at the San Ysidiro, California port of
entry. Valdivia-Flores falsely identified himself as another
person and presented a false and fraudulent United States
Certification of Naturalization. He was charged with one
count of attempted reentry of a removed alien in violation of
8 U.S.C. § 1326 and one count of fraudulent use of an
immigration document in violation of 18 U.S.C. § 1546.
to trial, Valdivia-Flores brought a collateral attack against
the validity of his 2009 order of removal and moved to
dismiss the attempted reentry count of the indictment. The
district court denied the motion to dismiss because
Valdivia-Flores "did in fact admit in his plea agreement
to committing a drug trafficking offense, which is an
parties then entered into a stipulation in which
Valdivia-Flores agreed to facts satisfying all the elements
of both counts in the indictment. Based on those stipulated
facts, following a bench trial the district court found
Valdivia-Flores guilty of both charges and sentenced him to
21 months' imprisonment on both counts, running
filed this timely appeal and seeks to challenge collaterally
the classification of his underlying Washington ...