United States v. Ochoa, — F.3d —, 2017 WL 2836820 (9th Cir. July 3, 2017): Reentry defendant’s prior deportation held invalid because crime of conviction was not categorical match to removable offense; concurrence calls for en banc review to modify collateral attack caselaw
Mexican citizen Jose Ochoa was convicted of conspiracy to export defense articles without a license in violation of 18 U.S.C. 371 and 22 U.S.C. 2778, and deported. He returned and was charged with illegal reentry in violation of 18 U.S.C. 1326. He raised a collateral attack upon his prior deportation, arguing that the crime of which he was convicted was not a categorical match for the removable offenses enumerated in the Immigration and Nationality Act (INA). The Ninth Circuit agreed. The INA identifies conspiracy to commit illicit trafficking in firearms and firearms offenses as removable, but the statute Mr. Ochoa was convicted of having conspired to violate swept more broadly than the generic versions of these offenses, extending beyond firearms to a broad range of items including “underwater hardware.” Finding no clear indication that the statute was divisible, the court declined to apply the modified categorical approach. The court accordingly reversed Mr. Ochoa’s conviction and remanded the case with instructions to dismiss the indictment.
Judge Graber wrote a concurrence in which both of her fellow panel-members joined, urging en banc review. Judge Graber acknowledged that the panel’s holding was consistent with the court’s caselaw, but she criticized that caselaw as inconsistent with the statute governing the availability of collateral attacks upon prior deportations in reentry cases, and asserted that the court was on the minority end of a circuit split.