FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50384 Plaintiff-Appellee, D.C. No. v. 3:14-cr-03700-BAS-1 JOSE ALEJANDRO VALDIVIA- FLORES, AKA Francisco Cruz- OPINION Mendoza, 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 Filed December 7, 2017 Before: Diarmuid F. O’Scannlain and Johnnie B. Rawlinson, Circuit Judges, and Rosemary Marquez, * District Judge. * The Honorable Rosemary Marquez, United States District Judge for the District of Arizona, sitting by designation. 2 UNITED STATES V. VALDIVIA-FLORES Opinion by Judge O’Scannlain; Special Concurrence by Judge O’Scannlain; Dissent by Judge Rawlinson SUMMARY ** Criminal Law The panel reversed a criminal judgment, and remanded, in a case in which the defendant, who was convicted of attempted reentry of a removed alien, contended that his 2009 removal was invalid because his 1997 drug trafficking conviction under Wash. Rev. Code § 69.50.401 was incorrectly determined to be an aggravated felony. The panel held that the defendant’s waiver of the right to seek judicial review of the removal order was not considered and intelligent, where the Notice of Intent to Issue a Final Administrative Removal Order suggested the defendant could contest removability only on factual grounds, the defendant was not represented, and the defendant never had the benefit of appearing before an immigration judge despite his request for a hearing. The panel held that the Washington drug trafficking statute is overbroad compared to its federal analogue because the former has a more inclusive mens rea requirement for accomplice liability. The panel held that under a straightforward application of the categorical ** 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. VALDIVIA-FLORES 3 approach, the defendant’s conviction therefore cannot support an aggravated felony determination. Because under Washington law a jury need not agree on whether a defendant is a principal or accomplice, the panel held that the Washington drug trafficking statute is not divisible so far as the distinction between those roles is concerned. The panel held that the modified categorical approach therefore may not be applied, and it was error for the district court to do so. The panel concluded that the defendant was, accordingly, prejudiced from his inability to seek judicial review for his 2009 removal, and that his collateral attack pursuant to 8 U.S.C. § 1326(d) on the underlying deportation order should have been successful. Specially concurring, Judge O’Scannlain wrote separately to highlight how the result in this case illustrates the bizarre and arbitrary effects of the ever-spreading categorical approach for comparing state law offenses to federal criminal definitions. Dissenting, Judge Rawlinson wrote that the majority has impermissibly veered away from the statute of conviction to find overbreadth based on its analysis of a statute that was not part of the prosecution or conviction in this case. 4 UNITED STATES V. ...
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