United States v. Gomez, No. 11-30262 (9th Cir. 2013)
Annotate this CaseDefendant appealed the district court's denial of his motion to dismiss the indictment charging him with illegal reentry. The court held that the stipulated removal proceeding violated defendant's right to due process because he was denied his right to appeal the removal order. Further, the IJ violated 8 C.F.R. 1003.25(b) by finding defendant's waiver of rights "voluntary, knowing, and intelligent" on the basis of an insufficient record. The court affirmed the conviction, nonetheless, because the violations were harmless given that defendant was ineligible for voluntary departure at the time of the 2006 proceeding. The court vacated defendant's sentence and remanded for resentencing because Arizona Revised Statute section 12-1405 did not constitute a "crime of violence" as defined by U.S.S.G. 2L1.2(b)(1)(A)(ii). In light of Descamps v. United States, the court no longer analyzed a statute missing an element of a generic offense, as here, under the modified categorical approach.
Court Description: Criminal Law. The panel affirmed an illegal reentry conviction, vacated the sentence, and remanded for resentencing in a case in which the defendant argued that his underlying removal was invalid. The panel held that the removal was invalid for two independent reasons: (1) the stipulated removal proceeding violated the defendant’s right to due process because he was denied his right to appeal the removal order, and (2) the immigration judge violated 8 C.F.R. § 1003.25(b) by finding the defendant’s waiver of rights “voluntary, knowing, and intelligent” on the basis of an insufficient record. The panel nonetheless affirmed the conviction because the violations were harmless given that the defendant was ineligible for voluntary departure at the time of the removal proceeding. The panel held that the defendant’s prior conviction for sexual conduct with a minor under Ariz. Rev. Stat. § 13-1405 did not constitute a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). The panel held that § 13- 1405, including the version for offenses against victims “under fifteen,” does not categorically meet the generic definition of “sexual abuse of a minor” or of “statutory rape,” and that after Descamps v. United States, this court no longer analyzes a statute missing an element of a generic offense, as here, under the modified categorical approach.
The court issued a subsequent related opinion or order on April 24, 2014.
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