USA V. ADRIAN ESPINOZA-ESTRADA, No. 13-50061 (9th Cir. 2014)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 24 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 13-50061 UNITED STATES OF AMERICA, D.C. No. 3:12-cr-01925-AJB-1 Plaintiff - Appellee, v. MEMORANDUM* ADRIAN ESPINOZA-ESTRADA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding Argued and Submitted January 10, 2014 Pasadena, California Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges. Adrian Espinoza-Estrada appeals his conviction under 8 U.S.C. § 1326 for attempted illegal reentry following removal. Espinoza-Estrada collaterally attacks * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 the 1998 removal order underlying his conviction. See 8 U.S.C. § 1326(d). We reverse and remand with instructions to dismiss the indictment. The Government does not dispute that if Espinoza-Estrada was not removable as charged in 1998, he has satisfied his burden under § 1326(d). The Government argues only that he has waived the issue. We reject the Government s waiver argument. We have discretion to consider an issue not raised below when it is purely legal, and the other party would not be prejudiced. Engquist v. Or. Dep t of Agric., 478 F.3d 985, 996 n.5 (9th Cir. 2007). Although Espinoza-Estrada did not argue before the district court that he was not removable as charged, the issue is purely legal and was clearly argued in his opening brief. The Government had a full and fair opportunity to respond, and it has not shown any way in which it was prejudiced by Espinoza-Estrada s failure to raise the issue below. See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009). We agree with Espinoza-Estrada that he was not removable as charged. See United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). EspinozaEstrada was removed on the basis of his 1997 conviction for misdemeanor domestic battery in violation of California Penal Code §§ 242 and 243(e)(1). As we later held in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), that offense is not categorically a crime of violence authorizing removal under 8 2 U.S.C. § 1227(a)(2)(E)(i). Ortega-Mendez, 450 F.3d at 1016 18. EspinozaEstrada therefore was not removable on the basis of his 1997 domestic battery conviction. See Camacho-Lopez, 450 F.3d at 930. That is true regardless of the fact that we decided Ortega-Mendez after his removal proceedings. See id. at 929 30 (applying a subsequent decision to collateral review of an underlying removal proceeding); accord United States v. Cervantes-Gonzales, 238 F. App x 278, 280 (9th Cir. 2007). REVERSED and REMANDED. 3
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