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9th Circuit: State conviction documents failed to show that illegal reentry defendant’s prior conviction was for an aggravated felony

United States v. Arriaga-Pinon, — F.3d —, 2017 WL 1291306 (9th Cir. Apr. 7, 2017): Illegal reentry defendant’s prior conviction under California vehicle-theft statute not shown by modified categorical approach to qualify as aggravated felony

Guillermo Arriaga-Pinon was convicted of unlawful reentry following removal in violation of 8 U.S.C. 1326(a) and (b). He received a sentencing enhancement under United States Sentencing Guidelines 2L1.2(b)(1)(C) on the premise that, before being removed, he had been convicted of an “aggravated felony.” Mr. Arriaga had been convicted before removal of a violation of a vehicle-theft statute, California Vehicle Code section 10851(a). Mr. Arriaga argued that a violation of this statute does not categorically constitute an aggravated felony, and that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the statute is “indivisible” and thus the “modified categorical” approach could not be applied to determine whether his particular offense qualified as an aggravated felony. The Ninth Circuit had held in Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), that this statute is divisible, but Mr. Arriaga argued that Mathis abrogated Duenas-Alvarez. Mr. Arriaga’s Ninth Circuit panel noted that there are “serious questions” as to whether Duenas-Alvarez survived Mathis, but declined to reach that question. Instead the panel held that, assuming that Duenas-Alvarez remained good law, Mr. Arriaga would still be entitled to relief because the modified categorical approach failed to clarify whether he was convicted as a principal or as an accessory after the fact, and only conviction as a principal qualifies as an aggravated felony. The court accordingly reversed and remanded the case for resentencing. Chief Judge Thomas took the “somewhat unusual” step of writing a separate concurrence to his own opinion, in which he painstakingly demonstrated why Mathis requires that, in an appropriate case, Duenas-Alvarez be overruled.

Duenas-Alvarez v. Holder — if you are reading this, a word of advice: Don’t buy; rent.

(Congratulations to Kara Hartzler of Federal Defenders of San Diego, Inc.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)