United States of America, Plaintiff-appellee, v. Marco Davila-lopez, Defendant-appellant, 107 F.3d 878 (9th Cir. 1997)

Before: BRUNETTI and RYMER, Circuit Judges, and TANNER^**  District Judge.

MEMORANDUM^*** 

Appellant Marco Davila-Lopez was convicted of being an alien found in the United States after deportation following conviction of an aggravated felony in violation of 8 U.S.C. § 1326(b) (2).¹  The term "aggravated felony" is defined by 8 U.S.C. § 1101(a) (43). The district court found that Appellant committed an "aggravated felony" based upon his 1988 conviction for voluntary manslaughter. On appeal, Appellant argues that his conviction must be reversed on the ground that his "aggravated felony" conviction for voluntary manslaughter occurred before November 19, 1990, the date on which Congress added crime of violence to the definition of "aggravated felony" under 8 U.S.C. § 1101(a) (43). We hold that Appellant's conviction under 8 U.S.C. § 1326(b) (2) must be reversed under United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996) (en banc), but order entry of a judgment of conviction for the lesser-included offense of 8 U.S.C. § 1326(b) (1).² 

I.

The 1990 amendments to 8 U.S.C. § 1101(a) (43) are intended to apply to "offenses committed on or after the date of the enactment of this Act." Pub. L. No. 101-649, § 501(b), 104 Stat. at 5048 (1990). In Gomez-Rodriguez, this court held, en banc, that a conviction under 8 U.S.C. § 1326(b) (2) must be reversed where the "aggravated felony" conviction occurred before the definition of aggravated felony under section 1101(a) (43) was expanded to include the offense underlying that conviction. 96 F.3d at 1263. At the time Appellant was convicted of voluntary manslaughter, voluntary manslaughter was not among the crimes defined as an "aggravated felony" under 8 U.S.C. § 1101(a) (43). Therefore, Appellant's conviction under 8 U.S.C. § 1326(b) (2) must be reversed.

II.

Conceding that Gomez-Rodriguez requires reversal of Appellant's conviction, the government argues that this court should order the entry of a judgment on the "lesser included" offense of 8 U.S.C. § 1326(b) (1). This court may enter a judgment of conviction on a lesser-included offense where the following conditions are met: (1) the lesser offense must be a lesser-included offense--a 'subset' of the greater one; (2) where the conviction followed a bench trial, "the record must show that the judge was expressly advised that the greater offense necessarily included the lesser one;" and (3) the government must request on appeal that judgment be entered against the defendant on the lesser offense. United States v. Vasquez-Chan, 978 F.2d 546, 554 & 554 n. 5 (9th Cir. 1992) (footnotes omitted).³ 

Applying the above test, we conclude that ordering the entry of judgment of conviction of the lesser-included offense, 8 U.S.C. § 1326(b) (1), is proper in this case. Section 1326(b) (1) is a lesser-included offense of section 1326(b) (2). United State v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir. 1992). Based upon the record in this case, we conclude that the district court judge expressly found that the elements for conviction of 8 U.S.C. § 1326(b) (1) were present. The district court in Appellant's case referred to section 1326(b) (1) as a lesser included offense in describing section 1326(b) (2) as the most serious offense, "but all others would be lesser-included--1326(b) (1) and 1326(a) would be a lesser-included offense that the trior [sic] of fact could consider." Indeed, the district court necessarily found that there was sufficient evidence to convict under 8 U.S.C. § 1326(b) (1) where it entered a judgment of conviction under the greater offense 8 U.S.C. § 1326(b) (2). Vasquez-Chan, 978 F.2d at 554, citing with approval, United States v. Franklin, 728 F.2d 994, 1000-01 (8th Cir. 1984) (entering judgment of conviction of lesser-included offense where district court necessarily found elements present in convicting defendant of greater offense); United States v. Dinkane, 17 F.3d at 1198 (where evidence is insufficient to support a guilty verdict on the greater offense but sufficient on the lesser offense and where Vasquez-Chan test is met, the court of appeal may direct the trial court to enter a judgment of conviction on a lesser offense). Finally, the government has requested on appeal that judgment be entered against the defendant on the lesser offense.

Conclusion

Appellant's conviction under 8 U.S.C. § 1326(b) (2) is vacated. The district court is directed to enter a judgment of conviction for the lesser-included offense of reentry following a deportation which was subsequent to a conviction of a felony under 8 U.S.C. § 1326(b) (1). The judgment is REVERSED and the case is REMANDED for proceedings consistent with this disposition.

REVERSED and REMANDED.