FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50096 Plaintiff-Appellee, D.C. No. v. 3:15-cr-00268-MMA-1 EDWIN RICARDO FLORES, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Argued and Submitted July 13, 2017 Pasadena, California Filed August 28, 2018 Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Mary H. Murguia,* Circuit Judges. Opinion by Judge Wardlaw * This case was submitted to a panel that included Judge Stephen R. Reinhardt. Following Judge Reinhardt’s death, Judge M. Murguia was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge M. Murguia has read the briefs, reviewed the record, and listened to oral argument. 2 UNITED STATES V. FLORES SUMMARY** Criminal Law The panel affirmed a conviction for attempting to reenter the United States after being deported in violation of 8 U.S.C. § 1326(a). The panel held that receiving stolen property under California Penal Code § 496(a) is a categorical match for the generic federal crime of receipt of stolen property, and that it is therefore not unreasonable for the Board of Immigration Appeals to construe it as a felony “theft offense (including receipt of stolen property),” that is, as an aggravated felony as defined in the Immigration and Nationality Act. The panel concluded that the defendant’s deportation based on a prior conviction for receipt of stolen property, along with a sentence of more than one year of imprisonment, was not fundamentally unfair and was a proper basis for the defendant’s illegal reentry conviction. The panel rejected the defendant’s contention that he had plausible grounds for relief from his 2009 expedited removal in the form of withdrawal of his application for admission, and therefore concluded that even assuming the expedited removal proceedings violated his due process rights, he could not establish prejudice. The panel held that the district court, which applied Daubert explicitly in the proceeding on the defendant’s ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. FLORES 3 motion in limine and during the bench trial, did not abdicate its gatekeeping function by admitting the testimony of a fingerprint expert. COUNSEL Ryan V. Fraser (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. D. Benjamin Holley (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Division; United States Attorney’s Office, San Diego, California; for Plaintiff- Appellee. OPINION WARDLAW, Circuit Judge: Edwin Flores, a native and citizen of Mexico, appeals his conviction for attempting to reenter the United States after being deported in violation of 8 U.S.C. § 1326(a). Flores moved to dismiss the indictment because the underlying basis of his deportation was a 2001 conviction of three counts of receiving stolen property under California Penal Code § 496(a), which the Immigration and Naturalization Service (“INS”) deemed an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G). ...
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