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9th Circuit: State aiding and abetting statute renders drug trafficking crime broader than federal generic version and thus not an “aggravated felony”

United States v. Valdivia-Flores, 2017 WL 6044232 (9th Cir. Dec. 7, 2017): Because of Washington’s aiding and abetting statute, Washington drug-possession crime is not categorically an aggravated felony

Say what you will about Jose Valdivia-Flores — the guy loves this country. He came here illegally in 1995, pleaded guilty to a Washington drug-trafficking offense, was removed, returned illegally the next year, pleaded guilty to another crime, was removed to Mexico again in 2009, remained there “for a few days,” returned illegally again, pleaded guilty to illegal entry, was removed to Mexico again, and attempted to enter illegally once more using a false identity — whereupon he was arrested and charged with attempted illegal reentry and fraudulent use of an immigration document. At that point, he collaterally attacked the validity of his 2009 removal, arguing that it rested on the erroneous finding that his Washington drug-trafficking offense qualified as an aggravated felony pursuant to federal immigration law.

His first hurdle under 8 U.S.C. 1326(d) was to show that the denial of his right to appeal the 2009 removal violated his right to due process, despite the fact that at the time he had signed a form waiving that right. He cleared this hurdle by showing that his waiver was not considered and intelligent, because the form’s list of check-box options did not include a box for: “I want to contest the classification of my drug-trafficking conviction as an aggravated felony.” And it didn’t help that he was unrepresented and never appeared before an immigration judge who might have explained this option to him.

His second hurdle was to show that the Washington drug-trafficking offense to which he had pleaded guilty did not qualify as an aggravated felony. He cleared this hurdle with the assistance of the categorical approach, and Washington’s aiding and abetting statute. The categorical approach requires courts to ignore the facts of the particular offense, and look only to whether the state statute defining the crime categorically fits within the generic federal definition of the corresponding aggravated felony. The specific statute defining the offense might have fit within the generic definition, but Washington’s aiding and abetting statute was broader than the federal law of aiding and abetting: Washington requires only that the abettor acted with knowledge that his conduct would facilitate the crime, whereas the federal version requires the abettor to act with the specific intent of facilitating the crime. Because aiding and abetting is “simply one means of committing” a crime, this discrepancy effectively rendered the Washington crime broader than the federal generic version. The Washington statute was not “divisible” with respect to this discrepancy, because Washington juries were not required to distinguish between principles and accomplices. Having cleared all of his section 1326(d) hurdles, Mr. Valdivia-Flores was entitled to have his conviction reversed and his case remanded.

Judge O’Scannlain, who authored the majority opinion, added a special concurrence in which he lent his voice to the chorus of judges (and Justices) concerned that the categorical approach has expanded too far, and given rise to “bizarre and arbitrary effects.” He suggested that the doctrine be pruned back, at least in circumstances in which its effect could not be reversed by judges exercising discretion (as may occur where the categorical approach applies to sentencing-related findings). Judge Rawlinson dissented, arguing that only the Washington crime itself, and not the state’s aiding and abetting statute, should have been considered in the categorical analysis.

(Congratulations to Ellis M. Johnston III of San Diego, California.)

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

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