USA V. OROZCO-OROZCO, No. 22-50146 (9th Cir. 2024)
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In the case before the United States Court of Appeals for the Ninth Circuit, the defendant, Melchor Orozco-Orozco, was appealing his conviction for being a previously removed alien found in the United States, in violation of 8 U.S.C. § 1326. Orozco had previously been removed from the U.S. following a conviction for carjacking under California Penal Code § 215, which had been classified as an aggravated felony under the Immigration and Nationality Act (INA).
The appellate court examined whether this classification was correct. It found that the California Supreme Court had determined that a person could commit carjacking under § 215 without the intent to steal required by a generic theft offense. This court held that Orozco's carjacking conviction did not qualify as an aggravated felony under the INA because § 215 was not a categorical match for a “theft offense.”
The appellate court reversed the district court's order denying Orozco's motion to dismiss his indictment in accordance with 8 U.S.C. § 1326(d) and sent the case back to the lower court for further proceedings. The court affirmed the district court's order denying Orozco's motion to dismiss his indictment on equal protection grounds.
Court Description: Criminal Law. In a case in which Melchor Orozco-Orozco was convicted of being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326, the panel affirmed the district court’s order denying Orozco’s motion to dismiss his indictment on equal protection grounds, reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings.
Orozco conceded that his equal protection argument is foreclosed by United States v. Carillo-Lopez, 68 F.4th 1133 (9th Cir. 2023).
Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA) because it qualifies as a “crime of violence.” Orozco argued that his carjacking conviction does not qualify as an aggravated felony under the INA because § 215 is not a categorical match for a “theft offense.” The California Supreme Court has held that a person can commit § 215 carjacking without the intent to steal required by a generic theft offense, see People v. Montoya, 94 P.3d 1098, 1100 (Cal. 2004), and this court is bound by the California Supreme Court’s statement of the elements of § 215, see Johnson v. United States, 559 U.S. 133, 138 (2010). The panel therefore concluded that Orozco’s 2005 carjacking conviction is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA.
The panel remanded for the district court to consider in the first instance whether Orozco has satisfied all three prongs of § 1326(d)(1)-(3).
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