UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 18, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
RAMIRO RAMOS-MEDINA, DEFENDANT.
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Ramiro Ramos-Medina moves to dismiss the indictment due to an allegedly invalid deportation. Defendant contends that his October 4, 2007 conviction for first degree burglary in violation of California Penal Code §459 is not an aggravated felony and therefore he may collaterally attack the July 13, 2008 final order of removal. Plaintiff opposes the motion. For the reasons set forth below, the court denies the motion to dismiss the indictment.
On August 13, 2008 Border Patrol Agents responded to a sensor activation located on the Northeast corner of Barrett Lake and south of Camp Barrett Sheriff Department's Detention Facility. The area is known for alien smuggling activities. Upon arrival at the scene, agents discovered footprints and followed them.
As the Agents climbed the hill in the area, people started running through the thick brush. Over the next 20-30 minutes, the Agents rounded up 18 individuals. The Agents conducted a field immigration interview and all individuals, including Defendant, stated that they were in the country illegally. Defendant was transported to the Brown Field Border Patrol Station where he allegedly waived his Miranda rights and again stated that he was in the country illegally. On October 8, 2008 Defendant was indicted on a one count indictment charging him with being a deported alien found in the United States in violation of §1326(a) and (b).
The Administrative Removal of Defendant
On June 25, 2008 Defendant was interviewed by ICE Agent Valenzuela, a fluent Spanish speaker, while incarcerated at Calipatria State Prison. Defendant was serving a two year incarceration term for first degree residential burglary in violation of Cal Penal Code §459. Based upon this conviction, Agent Valenzuela determined that Defendant was an aggravated felon and therefore subject to administrative removal. At that time, Defendant represented that he did not oppose removal. Defendant was also advised that he or a colleague would return in a couple of weeks with paperwork on the administrative removal and provide a listing of legal services.
On July 10, 2008 Agent Lopez, also a fluent Spanish speaker, served Defendant with a "Notice of Intent to Issue a Final Administrative Order." The Notice indicated that Defendant had been convicted on October 4, 1997 for first degree residential burglary and received a two year prison term. The Form I-851 indicated that he was deportable as an aggravated felon pursuant to 8 U.S.C. §1101(a)(43)(F). Agent Lopez does not recall if Defendant requested to see an immigration judge. Agent Lopez explained the form to Defendant and that he was not eligible for relief from deportation because of the aggravated felony conviction. On July 16, 2008 Agent Lopez returned and served Defendant with the Final Administrative Removal Order. Agent Lopez believed that Defendant understood the administrative removal procedure and that he chose not to contest the Final Order. Defendant was removed on August 8, 2008.
In the past 10 years Defendant has two felony and two misdemeanor convictions. On August 26, 1999 Defendant was convicted of felony transportation of a controlled substance and sentenced to 180 days in jail and three years probation. On January 14, 2002 Defendant was convicted of two misdemeanors for (1) driving while intoxicated and (2) forging an official seal. On October 4, 2007 Defendant was convicted of first degree residential burglary in violation of Penal Code §459 and received a two year prison sentence.
Defendant contends that his conviction for first degree residential burglary in violation of Cal. Penal Code §459 does not correspond to the generic meaning of burglary as required by binding precedent and therefore his conviction is not an aggravated felony within the meaning of 8 U.S.C. §§1101(43)(F) and (G). As a consequence, Defendant moves to dismiss the indictment because he was not removable as charged in the removal order. The Government opposes the motion.
A defendant in a §1326 prosecution may collaterally attack the prior deportation before trial and preclude the government from relying on such deportation where"the deportation proceeding was so procedurally flawed that it effectively eliminated the right of an alien to obtain judicial review. . . ." United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997). The collateral attack of a prior deportation is statutorily permitted only if:
(1) the alien has 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 to seek relief against the order; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. §1326(d)(1-3). An underlying removal order is fundamentally unfair if (1) a defendant's due process rights were in fact violated and (2) he suffers prejudice. United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997). To establish prejudice, Defendant must show that he had "a plausible ground for relief from deportation. USA v. Ualdo-Figueroa, 346 F.3d 1042, 1050 (9th Cir. 2004).
Under the categorical approach first articulated in Taylor v. United States, 495 U.S. 575 (1990), an offense is an aggravated felony if "the full range of conduct covered by the [criminal statute] falls within the meaning" of the relevant definition of an aggravated felony. Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008) (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002)). The generic definition of burglary "contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor, 495 U.S. at 598. The underlying state burglary statute, Penal Code §459, is not appropriately analyzed under the categorical approach because §459 eliminates the "requirement that the entry [into a dwelling] be unlawful." Taylor, 495 U.S. at 599. Under §459 one can be convicted of burglary where the entry into the dwelling or other structure is permissive. United States of America v. Rodriguez-Rodriguez, 393 F.3d 849, 852 (9th Cir. 2005), cert. denied, 544 U.S. 1041 (2005). Here, the full range of conduct targeted by the burglary statute is broader than the generic definition of burglary and therefore not susceptible to analysis under the categorical approach.
Where a criminal burglary statute is broader than the generic crime, the United States Supreme Court instructs that "the trial court need find only that the state statute corresponds in substance to the generic meaning of burglary." Taylor, 495 U.S. at 600. "Where a state statute is categorically broader than the generic definition of a crime, we employ a modified categorical approach." Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc). Under this approach, the court conducts "a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime." Chang, 307 F.3d at 1189.
Under the modified categorical approach, the court concludes that Defendant was convicted of a crime of violence, first degree residential burglary in violation of Cal. Penal Code §459, and therefore an aggravated felony within the meaning of 8 U.S.C. §1101(43)(F), based upon judicially noticeable facts showing that Defendant was convicted of all elements of generic burglary under Taylor. During the plea colloquy, Defendant stipulated to the factual basis for the crime as identified in the probation report. (Gov't Exh. 16 at 5). Based upon the stipulated factual basis for the plea, it is readily ascertainable that Defendant unlawfully entered the victim's apartment to commit a theft offense therein. Defendant removed a window screen to enter the apartment. As the victim arrived at her apartment she heard a banging noise and observed Defendant running away. (Gov't Exh. 14). The court concludes that the factual basis for the crime satisfies the generic definition of burglary because Defendant unlawfully entered the apartment to commit an offense therein.
Moreover, the Ninth Circuit has determined on several occasions that first degree residential burglary under §459 constitutes a crime of violence under 18 U.S.C. §16(b). In United States v. Becker, 919 F.2d 568 (9th Cir. 1990) the Ninth Circuit addressed a first degree residential burglary conviction under §459 in the context of the Career Criminal Act:
The confluence of common sense and precedent lead to the conclusion that the unauthorized daytime entry of the dwelling of another with the intent to commit a larceny or any felony carries with it a substantial risk that force will be used against the person or property of another. Therefore, first degree burglary under California law [§459] is a "crime of violence. . . ."
Id. at 573. In Rodriguez-Rodriguez, 393 F.3d 849, the Ninth Circuit held that the trial court committed reversible error when it failed to enhance the defendant's sentence by sixteen levels pursuant to U.S.S.G. §2L1.2(b)(1)(A) because a conviction for first degree residential burglary in violation of §459 constitutes a crime of violence. Id. at 853.*fn1 Accordingly, under the modified categorical approach §459 corresponds in substance to the generic meaning of burglary and qualifies as a crime of violence within the meaning of 18 U.S.C. §16(b).
Defendant contends that this court is bound to follow a recent three-panel decision in United States v. Aguila-Montes de Oca, -- F.3d --, 2009 WL 115727 (9th Cir. 2009) which held that the modified categorical approach outlined in Taylor, Becker, and Rodriguez-Rodriguez can no longer be applied to convictions under §459 because the California statute is missing the necessary element that entry into a dwelling must be unlawful. Id. This court cannot resolve conflicting panel decisions. Rather, this court is obligated to follow binding precedent. In this circuit, a three judge panel normally cannot overrule a decision of a prior panel on a controlling question of law, [however] we may overrule prior circuit authority without taking the case en banc when an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.
Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir.2002) (internal citation and quotations omitted). The primary Supreme Court authority cited by the Aguila-Montes panel in its analysis is Taylor. However, Taylor is not an intervening authority and stands for the proposition that the modified categorical approach applies to a state's burglary statute that "eliminat[es] the requirement that the entry be unlawful." Taylor, 495 U.S. at 599. Further, in discussing the modified categorical approach the Supreme Court held in Taylor that "the trial court need find only that the state statute corresponds in substance to the generic meaning of burglary." Taylor, 495 U.S. at 599 (emphasis added). Accordingly, the court concludes it is bound to follow the legal precedent set forth in Taylor, Becker and Rodriguez-Rodriguez.
Defendant also argues that the en banc decision in Navarro-Lopez "impliedly overruled" earlier cases applying the modified categorical approach to first degree residential burglary convictions. (Motion at p.5:27-28). The relevant issue in Navarro-Lopez was whether a conviction for accessory after the fact in violation of Cal. Penal Code §32 is a crime of moral turpitude. 503 F3d at 1073-74. Unlike a conviction under §459, the Ninth Circuit concluded that a conviction for accessory after the fact was missing the elements of a crime of moral turpitude. There is simply no indication that the en banc decision of Navarro-Lopez sought to overrule Becker or Rodriguez-Rodriguez. To the contrary, the Ninth Circuit reiterated that the modified categorical approach "applies when the particular elements in the crime of conviction are broader than the generic crime" but not when the "crime of conviction is missing an element of the generic crime altogether." Id. at 1073. Because Navarro-Lopez is not sufficiently on point and deals with a separate criminal statute, the court declines to find that Navarro-Lopez overruled earlier precedents directly addressing first degree residential burglary under §459.
In sum, the motion to dismiss the indictment is denied.
IT IS SO ORDERED.