United States v. Aguilera-Rios, No. 12-50597 (9th Cir. 2014)
Annotate this CaseDefendant, a citizen of Mexico, was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. 1326. Declining to find that defendant waived his argument, the court concluded that defendant showed good cause to excuse his failure to raise his argument under Moncrieffe v. Holder in the district court. The court rejected the government's position that the court could not consider Moncrieffe in evaluating whether defendant was removable as charged; the court agreed with defendant that any conviction under a state firearms statute lacking an exception for antique firearms is not a categorical match for the federal firearms ground of removal; California Penal Code 12021(c)(1) does not have an antique firearms exception; and a conviction under the statute is not a categorical match for the federal aggravated felony "firearms offense." The government conceded that defendant's conviction was not for a "crime of moral turpitude" - the other potential ground for removal. Accordingly, there was no legal basis for his 2005 removal order. The court reversed defendant's conviction.
Court Description: Criminal Law. The panel reversed a conviction for illegal reentry in a case in which the defendant contended that, after Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), his prior removal order was invalid because it was based on a conviction under California Penal Code § 12021(c)(1), which lacked an antique firearms exception and thus was not a categorical match for the federal firearms aggravated felony. The panel found that the defendant showed good cause to excuse his failure to raise his Moncrieffe argument in the district court, and therefore declined to find the argument waived. The panel rejected the government’s argument that this court cannot retroactively consider Moncrieffe in evaluating whether the defendant was removable as charged. The panel held that because § 12021(c)(1) does not have an antique firearms exception, and California prosecutes offenses involving antique firearms, a conviction under that statute is not a categorical match for the federal aggravated felony firearms offense, and the underlying removal order was invalid.
The court issued a subsequent related opinion or order on September 29, 2014.
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