Ceron v. Holder Jr., No. 08-70836 (9th Cir. 2013)
Annotate this CasePetitioner, who pleaded nolo contendere to assault with a deadly weapon and was sentenced to 364 days in county jail but probation was imposed instead, petitioned for review of the BIA's holding that he was removeable pursuant to 8 U.S.C. 1227(a)(2)(A)(i) for having committed a crime involving moral turpitude for which a sentence of at least one year's imprisonment could have been imposed. The court concluded that its holding in Gonzales v. Barber - that assault with a deadly weapon under California Penal Code section 245(a)(1) is a crime involving moral turpitude - remained good law. Because CPC 17(b) did not apply and because the minute order designated petitioner's conviction as a felony, the court held that petitioner's conviction was a felony. The felony sentencing provisions of section 245(a)(1) allowed for imprisonment for more than one year. Accordingly, petitioner's conviction was a conviction for a "crime for which a sentence of one year or longer may be imposed." Therefore, the court denied the petition.
Court Description: Immigration. The panel denied Ruben Adolfo Ceron’s petition for review of the Board of Immigration Appeals’ decision finding that his conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime involving moral turpitude (“CIMT”) for which a sentence of at least one year’s imprisonment could have been imposed. The panel held that this court’s holding in Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954), that an earlier but substantially similar version of CPC § 245 is a categorical CIMT, remains good law. The panel also held that Ceron’s conviction is a felony, because although the offense is a wobbler, the minute order designated it as a felony and CPC § 17(b) did not apply to automatically convert it into a misdemeanor since the state court suspended imposition of sentence and ordered probation instead. Dissenting, Judge Ikuta would hold that the majority lacks authority not to follow the en banc opinion in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and multiple rulings by this court, which established that assault with a deadly weapon is not a CIMT. Judge Ikuta wrote that the majority erred in holding that statements in a prior opinion are not binding if the majority decides that the statements relate to an issue that was not presented for review. Judge Ikuta also wrote that the majority further erred in holding that this court can ignore or overrule a statement in an en banc opinion if it relies on precedent that is not directly on point.
The court issued a subsequent related opinion or order on September 19, 2013.
The court issued a subsequent related opinion or order on March 31, 2014.
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