Argued and Submitted Feb. 4, 2013.
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Rebecca L. Pennell (argued), Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant-Appellant.
Alexander C. Ekstrom (argued), United States Attorney's Office for the Eastern District of Washington, Yakima, WA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:11-cr-06004-LRS-1.
Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.
PAEZ, Circuit Judge:
Faustino Gomez appeals the district court's denial of his motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C. § 1326. Gomez argues that his underlying 2006 removal was invalid because the stipulated removal proceeding violated his right to due process and denied him an opportunity to seek voluntary departure. We hold that the removal was invalid for two independent reasons: (1) the stipulated removal proceeding violated Gomez's right to due process because he was denied his right to appeal the removal order, and (2) the Immigration Judge (" IJ" ) violated 8 C.F.R. § 1003.25(b) by finding Gomez's waiver of rights " voluntary, knowing, and intelligent" on the basis of an insufficient record. Nonetheless, we affirm Gomez's § 1326 conviction because the violations were harmless given that Gomez was ineligible for voluntary departure at the time of the 2006 proceeding.
Gomez also challenges the district court's imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a " crime of violence" as defined by United States Sentencing Guidelines Manual (" U.S.S.G." ) § 2L1.2(b)(1)(A)(ii). We agree. We hold that § 13-1405, including the version for offenses against victims " under fifteen," does not categorically meet the generic definition of " sexual abuse of a minor" or of " statutory rape." After Descamps v. United States,
__ U.S. __, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we no longer analyze a statute missing an element of a generic offense, as here, under the modified categorical approach. Thus, we vacate Gomez's sentence and remand for resentencing.
In January 2004, Gomez was indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen. Count one charged Gomez with digitally penetrating the victim, and Counts two and three charged him with
having sexual intercourse with her. In September 2004, Gomez signed a plea agreement, pleading guilty to two counts of " Attempted Sexual Conduct with a Minor Under the Age of 15" in violation of § 13-1001 (attempt) and § 13-1405 (sexual conduct with a minor). In November 2004, Gomez was sentenced to a term of imprisonment, not to be released until January 16, 2006.
On January 17, 2006, the immigration authorities served Gomez, who was in Immigration and Customs Enforcement's (" ICE" ) custody, with a Notice to Appear (" NTA" ). Gomez signed and returned a " request for prompt hearing." The NTA included the allegation that he had been convicted of the § 13-1405 offenses. ICE transferred Gomez to Eloy Detention Center where he received, on January 19, 2006, a revised NTA that omitted any reference to his past conviction. Gomez again signed a " request for prompt hearing." While Gomez was in a cell with other aliens, an immigration official read to them en masse a Stipulated Removal form in Spanish. Gomez does not remember whether he had a copy of the form when it was read to the group. After the en masse reading, Gomez met individually with an immigration officer who told Gomez that he could be removed immediately if he signed the form. Gomez claims that during the individual meeting, " the form was not reviewed again, and [he] did not read the form." The whole process lasted less than forty-five minutes. Gomez signed the preprinted form, which contained both English and Spanish statements waiving Gomez's rights to counsel, ¶ 4, to a hearing before an IJ, ¶ 5, to any form of relief (including voluntary departure), ¶ 8, and to appeal, ¶ 13. Without a hearing, the IJ issued a two paragraph decision and order on January 20, 2006, finding Gomez's uncounselled waiver of rights to be " voluntary, knowing, and intelligent." Gomez was removed to Mexico via Nogales, Arizona that same day.
On December 23, 2010, Gomez was arrested for driving under the influence of alcohol in Washington state. A day later, an ICE agent located Gomez in the Franklin County Jail in Washington. Gomez was indicted on January 11, 2011, for illegal reentry in violation of 8 U.S.C. § 1326. Gomez moved to dismiss the indictment on the ground that the underlying stipulated removal proceeding was invalid. The district court denied the motion. A week later, Gomez filed a motion for reconsideration along with a declaration, stating, inter alia, that he had not understood the stipulated removal proceeding.  Although
the district court denied Gomez's motion for reconsideration, the court characterized the validity of Gomez's removal proceeding as " a close question." Gomez entered a guilty plea, reserving his right to appeal the denial of his motion to dismiss the indictment.
The probation officer prepared a pre-sentence report (" PSR" ) and recommended a total offense level of twenty-two. The total offense level included a sixteen-level enhancement based on the probation officer's determination that Gomez had been previously deported after being convicted of a " crime of violence" as defined by U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR assigned Gomez six criminal history points, for a criminal history category of III, and a Guidelines sentencing range of fifty-one to sixty-three months imprisonment. Without the sixteen-level enhancement, the sentencing range for Gomez would likely have been ten to sixteen months. See United States Sentencing Commission Guidelines Manual, Sentencing Table (Nov. 1, 2010).
On September 8, 2011, the district court conducted a hearing on objections to the PSR. Gomez's primary objection was to the sixteen-level sentencing enhancement for his 2004 § 13-1405 conviction. Gomez argued that the conviction did not qualify as a " crime of violence" under the categorical or modified categorical approaches.
On September 15, 2011, the district court conducted a sentencing hearing. The district court acknowledged the PSR's recommended Guidelines sentencing range of fifty-one to sixty-three months, and found that Gomez's § 13-1405 conviction was " in fact categorically statutory rape," which is a " crime of violence" under § 2L1.2(b)(1)(A)(ii). The district court also conducted an alternative analysis, assuming that the generic definition of " statutory rape" included a four-year age differential, and found that Gomez satisfied this element because the court could consider Gomez's age at the time of the § 13-1405 conviction given that his date of birth appeared on the " judgement [sic] paperwork." Finally, the district court noted several reasons for imposing a below-Guidelines sentence. It also noted that it would likely have given the same sentence even if it erred in applying the sixteen-level enhancement. The district court then imposed a sentence of twenty-two months imprisonment and three years of supervised release.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final judgment of the district court pursuant to 28 U.S.C. § 1291. " We review de novo a claim that a defect in a prior removal proceeding precludes reliance on the final removal order in a subsequent § 1326 proceeding." United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir.2012), cert. denied,
__ U.S. __, 133 S.Ct. 322, 184 L.Ed.2d 190 (2012). " We review the district court's findings of fact for clear error. We may affirm a district court's denial of a motion to dismiss an indictment on any basis supported by the record." Id. (citation omitted).
" We review de novo the district court's interpretation of the Sentencing Guidelines," United States v. Rodriguez-Ocampo, 664 F.3d 1275, 1277 (9th Cir.2011) (quoting United States v. Berger, 587 F.3d 1038, 1041 (9th Cir.2009)) (internal quotation marks omitted), including a " district
court's determination that a prior conviction qualifies as a ‘ crime of violence’ under the Guidelines," United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir.2007) (citing United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc)).
When an alien defendant is prosecuted for illegal reentry under 8 U.S.C. § 1326, he may not collaterally attack the underlying deportation order " unless the alien demonstrates" that:
(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d); United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1126-27, 1128-32 (9th Cir.2013). " An underlying removal order is ‘ fundamentally unfair’ if: ‘ (1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.’ " United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (alteration in original) (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998)).
A defendant can establish the first two prongs of § 1326(d) by showing that he was denied judicial review of his removal proceeding in violation of due process. See Reyes-Bonilla, 671 F.3d at 1043; Ubaldo-Figueroa, 364 F.3d at 1049-50. Due process requires that
[W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made ...