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United States v. Alvarado-Pineda

United States Court of Appeals, Ninth Circuit

December 19, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE ALVARADO-PINEDA, AKA Jose Alvarado-Pinedo, Defendant-Appellant

Argued and Submitted, Pasadena, California: November 20, 2014.

Page 1199

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-00537-BTM-1. Barry T. Moskowitz, Chief District Judge, Presiding.

Criminal Law

Affirming a conviction for illegal reentry, the panel held that a conviction of second-degree robbery under section 9A.56.190 of the Revised Code of Washington is a " theft offense," and that such a conviction, accompanied by a sentence of imprisonment of at least one year, therefore qualifies as an " aggravated felony" under 8 U.S.C. § 1101(a)(43)(G).

The panel concluded that because the defendant's aggravated felony conviction renders him ineligible for relief from his underlying removal orders, he suffered no prejudice from any procedural defects that may have occurred in the removal proceedings, and the district court therefore correctly denied his motion to dismiss the indictment based on those alleged defects.

Joseph M. McMullen (argued), San Diego, California, for Defendant-Appellant.

Christopher Alexander (argued), Assistant United States Attorney, and Bruce R. Castetter, Chief, Appellate Section, Criminal Division, Office of the United States Attorney, San Diego, California, for Plaintiff-Appellee.

Before: A. Wallace Tashima, William A. Fletcher, and Jay S. Bybee, Circuit Judges. Opinion by Judge W. Fletcher.

OPINION

Page 1200

W. FLETCHER, Circuit Judge:

In this appeal, we must decide whether a defendant convicted of second-degree robbery under section 9A.56.190 of the Revised Code of Washington and sentenced to prison for at least one year has been convicted of an aggravated felony under federal law. We hold that he has.

I. Background

Jose Alvarado-Pineda is a 29-year-old Mexican national who first entered the United States in about 2003. In 2004, he stole a wallet in Seattle, Washington, and was convicted of second-degree robbery in violation of section 9A.56.190 of the Revised Code of Washington. In 2005, while serving a 14-month prison sentence, he was served with a notice informing him of the Department of Homeland Security (" DHS" )'s intent to issue a final administrative removal order. The notice alleged that Alvarado-Pineda had been convicted of an aggravated felony -- the robbery -- and charged him as removable on that basis. Alvarado-Pineda ...


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