United States v. Josue Martinez-Hernandez

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50423 Plaintiff-Appellee, D.C. No. v. 3:15-cr-02876-JAH-1 JOSUE MARTINEZ-HERNANDEZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding UNITED STATES OF AMERICA, No. 17-50295 Plaintiff-Appellee, D.C. No. v. 3:16-cr-02253-H-1 OSCAR CARCAMO-SOTO, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding 2 UNITED STATES V. MARTINEZ-HERNANDEZ Argued and Submitted November 8, 2018 Pasadena, California Filed January 9, 2019 Before: Johnnie B. Rawlinson, Michael J. Melloy, * and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Hurwitz SUMMARY ** Criminal Law The panel affirmed two defendants’ convictions for illegal reentry in violation of 8 U.S.C. § 1326 in cases in which the defendants had been deported after immigration officers determined that their prior convictions for robbery in violation of California Penal Code § 211 were for “crimes of violence” and thus constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(F). In the district court, the defendants collaterally attacked their underlying removal orders, claiming that their removal orders were invalid because § 211 robbery was no longer treated as a crime of violence under recent Ninth Circuit * The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MARTINEZ-HERNANDEZ 3 decisions. The district court denied the motions, reasoning that even if § 211 robbery were not a “crime of violence” aggravated felony under § 1101(a)(43)(F), it still was a theft offense under 8 U.S.C. § 1101(a)(43)(G). On appeal, the government conceded, and the panel held, that in light of subsequent case law, the defendants’ robbery convictions do not today qualify as “crimes of violence” under § 1101(a)(43)(F), and that the current state of Circuit law governs the defendants’ collateral attacks of their removal orders. The panel nevertheless affirmed the convictions because the district courts in both cases correctly held that § 211 robbery qualifies as a generic theft offense under § 1101(a)(43)(G), and thus is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). COUNSEL Doug Keller (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendants-Appellants. Daniel Earl Zipp (argued), Assistant United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee. 4 UNITED STATES V. MARTINEZ-HERNANDEZ OPINION HURWITZ, Circuit Judge: Josue Martinez-Hernandez and Oscar Carcamo-Soto (the “Defendants”) are Mexican citizens; each entered the United States without inspection while young. Years later, each Defendant was convicted of robbery in violation of California Penal Code (“CPC”) § 211. Upon completion of their prison terms, both Defendants were deported to Mexico after immigration officers determined that their ...

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