United States v. Jacinto Alvarez

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50088 Plaintiff-Appellee, D.C. No. 3:19-cr- v. 05093-LAB-1 JACINTO VICTOR ALVAREZ, AKA Jacinto Alvarez, AKA Jasinto OPINION Alvarez, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted September 2, 2022 Pasadena, California Filed February 16, 2023 Before: Milan D. Smith, Jr. and Ryan D. Nelson, Circuit Judges, and Gershwin A. Drain, * District Judge. Opinion by Judge R. Nelson * The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. 2 UNITED STATES V. ALVAREZ SUMMARY ** Criminal Law The panel affirmed a criminal judgment in a case in which Jacinto Alvarez moved to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326, arguing that the underlying removal order was fundamentally unfair because his prior assault conviction under section 2903.13(A) of the Ohio Revised Code was not a crime of violence and thus not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Alvarez first contended that his assault conviction is not a crime of violence because section 2903.13(A)’s mens rea requirement for attempt crimes is broader than the mens rea requirement for the “attempted use . . . of physical force” under 8 U.S.C. § 16(a). The minimum mens rea required for attempt crimes under section 2903.13(A) is "knowledge." Alvarez argued that the court must compare section 2903.13(A)'s attempt crime (including its mens rea requirement) to the generic federal definition of attempt, which he contended requires specific intent, or purpose. Because purpose is a higher mens rea than knowledge, Alvarez maintained that section 2903.13(A) criminalizes conduct that § 16(a) does not. The panel wrote that Alvarez’s argument rests on a critical error: the court compares section 2903.13(A) not to the generic federal definition of attempt, but to the crime of violence definition in § 16(a). The panel wrote that this court’s precedent ** 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. ALVAREZ 3 answers the question whether “knowledge” is a sufficient mens rea under the crime of violence definition in § 16(a). The panel disagreed with Alvarez’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Under this court’s precedent, “knowledge” is a sufficient mens rea for the crime of violence definition as a whole, including “attempted uses” of physical force. Accordingly, the knowledge mens rea requirement for attempt under section 2903.13(A) does not make it overbroad. Alvarez also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. Noting that Alvarez must show a realistic probability, not a theoretical possibility, that Ohio would apply the statute to de minimis contact, the panel …

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