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United States v. Valdivia-Flores

United States Court of Appeals, Ninth Circuit

December 7, 2017

United States of America, Plaintiff-Appellee,
Jose Alejandro Valdivia-Flores, AKA Francisco Cruz-Mendoza, Defendant-Appellant.

          Argued and Submitted November 10, 2016 Pasadena, California

         Appeal 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

          Ellis M. Johnston III (argued), San Diego, California, for Defendant-Appellant.

          Helen 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.

         SUMMARY [**]

         Criminal Law

         The 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.

         The 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.

         The 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.

         The 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.

         Specially 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 definitions.

         Dissenting, 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.



         We must 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 immigration law.


         Jose 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.

         While 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.

         In 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 Immigration Court.

         Also in 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.

         On 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.

         On 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.

         Prior 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 aggravated felony."

         The 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 concurrently.

         Valdivia-Flores filed this timely appeal and seeks to challenge collaterally the classification of his underlying Washington ...

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