United States v. Ochoa, No. 15-10354 (9th Cir. 2017)
Annotate this Case
The Ninth Circuit granted a petition for panel rehearing, withdrew its memorandum disposition filed December 14, 2016, denied a petition for rehearing en banc as moot, and filed this opinion reversing defendant's conviction for illegal reentry.
After defendant was convicted of conspiracy to export defense articles without a license and was removed from the United States, he returned and was convicted of illegal reentry. The panel held that defendant was not originally removable as charged, and so could not be convicted of illegal reentry. In this case, because the statute was overbroad and indivisible, defendant's conviction under 22 U.S.C. 2778 could not serve as a proper predicate for removal—either as an aggravated felony or a firearms offense. Accordingly, the court remanded with instructions to dismiss the indictment.
Court Description: Criminal Law. The panel granted a petition for panel rehearing, withdrew its memorandum disposition filed December 14, 2016, denied a petition for rehearing en banc as moot, and filed a published opinion reversing the defendant’s conviction for illegal reentry in violation of 8 U.S.C. § 1326. The removal underlying the defendant’s illegal reentry conviction was based on the defendant’s prior conviction for conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778. The panel held that by criminalizing unlicensed exports of a broad range of munitions, § 2278 sweeps more broadly than the generic federal aggravated felony or firearms offenses, and that the defendant’s underlying conviction thus does not categorically qualify as a proper § 1326 predicate offense. The panel held that § 2278 is not divisible, and thus did not proceed to the modified categorical approach. Because the statute was overbroad and indivisible, the § 2278 conviction could not serve as a proper predicate for removal. The panel remanded with instructions to dismiss the indictment. Concurring, Judge Graber, joined by Judge McKeown and Chief District Judge Lynn, wrote separately to express her UNITED STATES V. OCHOA 3 view that this case should be reheard en banc to correct this court’s course with respect to the scope of collateral challenges under 8 U.S.C. § 1326(d), which has strayed increasingly far from the statutory text and is out of step with sister circuits’ correct interpretation.
This opinion or order relates to an opinion or order originally issued on December 14, 2016.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.