Argued and Submitted, Pasadena, California February 7, 2014.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:11-cr-02734-H-1.
The panel filed a superseding amended opinion reversing a conviction for illegal reentry in a case in which the defendant contended that, after Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), his prior removal order was invalid because it was based on a conviction for unlawful firearms possession under California Penal Code § 12021(c)(1), which lacked an antique firearms exception and thus was not a categorical match for the Immigration and Nationality Act's firearms offense described in 8 U.S.C. § 1227(a)(2)(C).
The panel found that the defendant showed good cause to excuse his failure to raise his Moncrieffe argument in the district court, and therefore declined to find the argument waived. The panel rejected the government's argument that this court cannot retroactively consider Moncrieffe in evaluating whether the defendant was removable as charged.
The panel held that because § 12021(c)(1) does not have an antique firearms exception, and California prosecutes offenses involving antique firearms, a conviction under that statute is not a categorical match for the firearms offense described in § 1227(a)(2)(C), and the underlying removal order was invalid.
Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued) and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Harry Pregerson, Michael R. Murphy[*], and Marsha S. Berzon, Circuit Judges.
The opinion filed on June 17, 2014, is hereby amended. The superseding amended opinion will be filed concurrently with this order. No further petitions for rehearing or petitions for rehearing en banc will be entertained.
BERZON, Circuit Judge:
Jorge Aguilera-Rios (" Aguilera" ), a citizen of Mexico, was convicted of a California firearms offense, removed from the United States on the basis of that conviction,
and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction under California Penal Code § 12021(c)(1) was not a categorical match for the Immigration and Nationality Act's (" INA" ) firearms offense. We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.
Aguilera entered the United States without inspection at the age of five to live with his parents, who were lawful permanent residents. He became a lawful permanent resident in 2000. Two years later, he was convicted of unlawful firearms possession in violation of California Penal Code § 12021(c)(1).
In 2005, Aguilera was served with a Notice to Appear, alleging that he had been convicted of a crime involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and a firearms offense, 8 U.S.C. § 1227(a)(2)(C), and so was subject to removal. One week later, Aguilera appeared before an Immigration Judge (" IJ" ). He admitted that he had been convicted of unlawful firearms activity in violation of California Penal Code § 12021(c)(1), but did not concede removability. The IJ nonetheless held Aguilera " subject to removal as charged," and denied him any relief from removal. Aguilera was removed to Mexico.
Six years later, Aguilera was charged with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Aguilera moved to dismiss the indictment under § 1326(d), arguing that, during the 2005 removal proceedings, the IJ did not meaningfully advise him of his opportunity to apply for voluntary departure. The district court denied the motion, and Aguilera was found guilty of illegal reentry. Aguilera was sentenced to time served, and has since been removed to Mexico.
On April 23, 2013, after Aguilera filed his opening brief in this case, the Supreme Court issued its decision in Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), concerning application of the categorical approach in immigration cases. Although that case involved a marijuana conviction, the majority opinion addressed an argument by the Solicitor General that, under the Court's analysis, " a conviction under any state firearms law that lacks . . . an exception [for antique firearms present in the federal firearms statute] will be deemed to fail the categorical inquiry." Id. at 1693. Aguilera moved to file a substitute opening brief in this case, arguing that, after Moncrieffe, his 2005 removal order was invalid for a second reason (in addition to the previously asserted due process violation): Aguilera was never deportable ...