NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10010 Plaintiff-Appellee, D.C. No. 2:17-cr-00874-DJH-1 v. JOSE GOMEZ-AGUILAR, AKA Jose MEMORANDUM* Orlando Gomez-Aguilar, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Submitted April 16, 2019** San Francisco, California Before: D.W. NELSON, FERNANDEZ, and BEA, Circuit Judges. Jose Gomez-Aguilar is a native and citizen of El Salvador. He entered the United States without inspection in 1998. In 2001, Gomez was convicted of robbery in violation of D.C. Code § 22-2801 (formerly § 22-2901.59). Gomez was * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). deported after immigration officers determined that his robbery conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43), thus rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). He reentered the country twice and was charged with illegal reentry in violation of 8 U.S.C. § 1326. Gomez filed a motion to dismiss pursuant to 8 U.S.C. § 1326(d), claiming that his removal order was invalid because D.C. Code § 22-2801 was not an aggravated felony. The district court denied his motion to dismiss and sentenced Gomez to 30 months’ imprisonment and three years of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the denial of a motion to dismiss under 8 U.S.C. § 1326(d). United States v. Cisneros- Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). The government argues only that D.C. Code § 22-2801 is an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G). To determine whether D.C. Code § 22-2801 qualifies as a theft offense, we apply the “categorical approach,” wherein we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the generic crime.” United States v. Martinez-Hernandez, 912 F.3d 1207, 1213 (9th Cir. 2019) (citation omitted). The government also concedes that the D.C. Code § 22-2801 is indivisible. As such, we need not conduct a modified categorical analysis. See United States v. Walton, 881 F.3d 768, 774–75 (9th Cir. 2018). 2 The elements of a generic theft offense are “(1) the taking of (2) property (3) without consent (4) with the intent to deprive the owner of rights and benefits of ownership.” Martinez-Hernandez, 912 F.3d at 1213 (citation omitted). In comparison, the elements of D.C. Code § 22-2801 are “(1) a felonious taking, (2) accompanied by an asportation [or carrying away], of (3) personal property of value, (4) from the person of another or in his presence, (5) against his will, (6) by violence or by putting him in fear, (7) animo furandi [the intention to steal].” Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996) ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals