United States v. Jose Paniagua-Paniagua

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50454 Plaintiff-Appellee, D.C. No. 3:14-cr-02957-BAS-1 v. JOSE GUILLERMO PANIAGUA- MEMORANDUM * PANIAGUA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding Argued and Submitted November 10, 2016 Pasadena, California Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and MARQUEZ,** District Judge. Appellant Jose Paniagua-Paniagua appeals from a conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326. He argues the district court erred by denying his motion under § 1326(d) to dismiss the illegal reentry charge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Rosemary Marquez, United States District Judge for the District of Arizona, sitting by designation. We review de novo and affirm. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012). To successfully challenge an underlying removal order, an alien must show (among other things) that “entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). “An underlying order is ‘fundamentally unfair’ if (1) a defendant’s due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014) (citing United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)). Appellant was convicted in 2007 of possession of methamphetamine with intent to deliver it, in violation of Wash. Rev. Code § 69.50.401(2)(b). During Appellant’s 2008 deportation proceedings, Appellant confirmed that he was convicted under Wash. Rev. Code § 69.50.401. The immigration judge did not advise Appellant of potential eligibility for relief from removal. Appellant was removed to Mexico as an aggravated felon. Appellant subsequently reentered the United States, where he was apprehended in September 2014. Following a bench trial on April 28, 2015, Appellant was found guilty of illegal reentry. Appellant contends that his Washington conviction is not an aggravated felony because Wash. Rev. Code § 69.50.401 is categorically overbroad. He further contends that the modified categorical approach may not be utilized to 2 15-50454 determine whether he was convicted of an aggravated felony because Wash. Rev. Code § 69.50.401 is indivisible. Therefore, he argues, his collateral challenge must succeed because the immigration judge violated his due process rights by failing to advise him that he was eligible for voluntary departure. We agree with Appellant that Washington’s definition of aiding and abetting liability is broader than the generic federal definition and that the implicit nature of aiding and abetting liability in every criminal charge renders Wash. Rev. Code § 69.50.401 categorically overbroad. United States v. Valdivia-Flores, No. 15- 50384, 2017 WL 6044232 (9th Cir. Dec. 7, 2017). We also agree that Wash. Rev. Code § 69.50.401 is indivisible, thus precluding application of the modified categorical approach. Id. ...

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