United States v. Cabrera-Perez, No. 13-50148 (9th Cir. 2014)
Annotate this CaseDefendant appealed the denial of his motion to dismiss an indictment charging attempted entry after deportation. The court applied the modified categorical approach and held that defendant's state conviction for aggravated assault constituted a crime of violence. Consequently, defendant was not eligible for voluntary departure at his February 2005 immigration hearing. Accordingly, defendant's attempt to attack collaterally the deportation order underlying his illegal reentry conviction because he was not adequately advised of the voluntary departure remedy failed. The court affirmed the district court's judgment.
Court Description: Criminal Law. The panel affirmed the district court’s denial of a motion to dismiss an indictment charging attempted entry after deportation. The panel held that the district court did not err in applying the modified categorical approach – based on the direct complaint, the plea agreement, and the transcript of the plea colloquy – to conclude that the defendant’s conviction for aggravated assault, under Arizona Revised Statutes § 13- 1203(A)(2) and § 13-1204(A)(2), constitutes a “crime of violence” under the Immigration and Nationality Act § 101(a)(43) and 18 U.S.C. § 16, and that the defendant therefore suffered no prejudice from the immigration judge’s alleged failure to advise him of his potential eligibility for voluntary departure.
The court issued a subsequent related opinion or order on June 18, 2014.
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