USA v. Julio Hernandez

Filing

FILED PER CURIAM OPINION (HARRY PREGERSON, RICHARD C. TALLMAN and CARLOS T. BEA) REVERSED AND REMANDED. FILED AND ENTERED JUDGMENT. [9281804]

Case: 13-50632

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 13-50632
D.C. No.
8:13-cr-00058JLS-1

JULIO CESAR ARRIAGA HERNANDEZ,
AKA Julio Cesar Arriaga, AKA
Julio Cesar Hernandez Arriaga,
AKA Jose Julio Hernandez, AKA
Julio Cesar Hernandez,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted October 10, 2014*
Pasadena, California
Filed October 20, 2014
Before: Harry Pregerson, Richard C. Tallman,
and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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UNITED STATES V. HERNANDEZ
SUMMARY**

Criminal Law
The panel reversed a sentence and remanded for
resentencing in an illegal-reentry case in which the district
court enhanced the sentence pursuant to 8 U.S.C.
§ 1326(b)(2) after finding that the defendant’s prior
conviction for being a felon in possession of a firearm under
California Penal Code § 12021(a)(1) (2003) qualified as an
aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).
The panel held that the analysis applied in the
immigration context in United States v. Aguilera-Rios, No.
12-50597, 2014 WL 4800292 (9th Cir. Sept. 29, 2014)
(holding that California’s felon-in-possession-of-a-firearm
statute, which does not include an antique-firearm exception,
is not a categorical match for the federal firearms offense),
applies in the sentencing context. The panel observed that
California does prosecute cases involving antique firearms
under § 12021(a)(1), and held that the modified categorical
approach is inapplicable because the definition of a firearm
in the California Penal Code is not divisible. The panel
concluded that the district court therefore erred in applying
the enhancement.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HERNANDEZ

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COUNSEL
Sean K. Kennedy, Federal Public Defender; James H.
Locklin, Deputy Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
André Birotte Jr., United States Attorney; Robert E. Dugdale,
Assistant United States Attorney Chief, Criminal Division;
Joshua M. Robbins, Assistant United States Attorney, Santa
Ana, California, for Plaintiff-Appellee.

OPINION
PER CURIAM:
Julio Cesar Arriaga-Hernandez (“Hernandez”) appeals the
33-month sentence imposed following his guilty-plea
conviction for illegal reentry under 8 U.S.C. § 1326(a)
(2012). The sentencing judge enhanced Hernandez’s
sentence under 8 U.S.C. § 1326(b)(2) after finding that
Hernandez’s prior California conviction for being a felon in
possession of a firearm qualified as an aggravated felony.
We have jurisdiction over the district court’s final judgment
under 28 U.S.C. § 1291 (2012). The district court did not
have the benefit of our recent decision in United States v.
Aguilera-Rios, ___ F.3d ___, No. 12-50597, 2014 WL
4800292 (9th Cir. Sept. 29, 2014). There we held, in the
immigration context, that California’s felon in possession of
a firearm statute is not a categorical match for the federal
firearms offense. Id. at *9. We now hold that the same
analysis applies in the sentencing context. As a result, we
reverse Hernandez’s sentence and remand the case for
re-sentencing.

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UNITED STATES V. HERNANDEZ

Hernandez came to the United States as an illegal alien in
1982, when he was two months old. He has lived in
California for most of his life, and he lived there with his
girlfriend and young daughter prior to his incarceration. In
the past twelve years, Hernandez has been deported six times.
Following each deportation Hernandez has returned to the
United States. Hernandez has had several additional run-ins
with the law in his life. Most significantly, in 2003
Hernandez pleaded guilty to being a felon in possession of a
firearm in violation of California Penal Code § 12021(a)(1)
(2003).
Hernandez was again deported in December 2012, but by
January 2013 he had returned to the United States. Shortly
after his return he was arrested in Orange County and indicted
in federal court for violating 8 U.S.C. § 1326(a), (b)(2) (for
being an illegal alien found in the United States following
deportation). Hernandez pleaded guilty to the charge, and the
case proceeded to sentencing.
At sentencing, the district court relied on Hernandez’s
2003 felon in possession of a firearm conviction as a
predicate for imposing an eight-level sentencing enhancement
under section 2L1.2(b)(1)(C) of the United States Sentencing
Guidelines (“If the defendant previously was deported, or
unlawfully remained in the United States, after . . . (C) a
conviction for an aggravated felony, increase by 8
levels. . . .”). Based on this and other factors, the court
sentenced Hernandez to 33 months imprisonment. Hernandez
objected to the court’s imposition of the eight-level
enhancement, and he appeals application of that enhancement
here.

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Hernandez argues that his prior conviction under
California Penal Code § 12021(a)(1) (2003) (California’s
then-felon in possession of a firearm statute) does not qualify
as an aggravated felony warranting an eight-level sentencing
enhancement under section 2L1.2(b)(1)(C) of the Sentencing
Guidelines. Although he concedes that he was convicted in
California as a felon in possession of a firearm, he argues that
because California’s statute does not exclude antique
firearms, the crime of felon in possession of a firearm under
state law is categorically overbroad when compared with the
crime of felon in possession of a firearm under federal law,
see 18 U.S.C. § 922(g)(1), which does exclude antique
firearms, see 18 U.S.C. § 921(a)(3).
The federal sentencing guidelines permit courts to base
sentencing enhancements on state convictions as long as the
relevant state statute is a “categorical match” with the generic
federal definition. See Taylor v. United States, 495 U.S. 575,
110 S. Ct. 2143 (1998) (applying the categorical approach to
sentencing under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (2000 ed. and Supp. IV)); United States v. AcostaChavez, 727 F.3d 903, 905 (9th Cir. 2013) (applying the
categorical analysis to section 2L1.2(b)(1)). A state statute is
a categorical match to the generic federal statute if it
proscribes the same amount of or less conduct than the
federal statute. Taylor, 495 U.S. at 588–89; see also
Aguilera-Rios, 2014 WL 4800292, at *6–7 (citing Moncrieffe
v. Holder, 133 S. Ct. 1678, 1686–87 (2013)). “If the statute
of conviction ‘sweeps more broadly than the generic crime,
a conviction under that law cannot [categorically] count as [a
qualifying] predicate, even if the defendant actually
committed the offense in its generic form.’” Acosta-Chavez,
727 F.3d at 907 (quoting Descamps v. United States, 133 S.
Ct. 2276, 2283 (2013)). There is one exception to this rule:

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UNITED STATES V. HERNANDEZ

Even if a state statute sweeps more broadly than a federal
statute, the two can be a categorical match if there is no
“realistic probability . . . that the State would apply its statute
to conduct that falls outside the generic definition of a crime.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S. Ct.
815 (2007).
Hernandez is correct that the California felon in
possession statute sweeps more broadly than its federal
counterpart. Section 2L1.2(b)(1)(C) of the Sentencing
Guidelines directs the sentencing court to apply an eight-level
enhancement if the previously-deported defendant remained
in the United States after “a conviction for an aggravated
felony.” An aggravated felony includes being a felon in
possession of a “firearm.” U.S.S.G. § 2L1.2(b)(1)(C) cmt.
3(A); 8 U.S.C. § 1101(a)(43) (defining “aggravated felony”);
18 U.S.C. § 922(g)(1). The federal government defines
“firearm” as “any weapon . . . which will or is designed to or
may readily be converted to expel a projectile by the action
of an explosive . . . .” 18 U.S.C. § 921(a)(3). It excludes
from this definition antique firearms. Id. (“Such term does
not include an antique firearm.”). California’s definition of
a firearm does not exclude antique firearms. See Cal. Penal
Code § 12021(a)(1).
The district court noted this discrepancy during
sentencing, but concluded that it was irrelevant because the
federal antique firearm exception is an affirmative defense,
and affirmative defenses are inapplicable to the categorical
analysis. This conclusion is no longer valid in light of recent
Ninth Circuit case law. We recently concluded that the
Supreme Court’s decision in Moncrieffe, 133 S. Ct. 1678,
retroactively overruled the portion of Gil v. Holder, 651 F.3d
1000, 1005–06 (9th Cir. 2011), which held that the antique

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firearms exception is an affirmative defense that need not be
considered in a categorical analysis. Aguilera-Rios, 2014 WL
4800292, at *6. Under Aguilera-Rios, California Penal Code
§ 12021(a)(1) is not a categorical match to 18 U.S.C. §§ 921,
922. Thus, a conviction under section 12021(a)(1) cannot
serve as a predicate for the section 2L1.2(b)(1)(C) eight-level
enhancement unless there is no “realistic probability” that
California would prosecute people for possession of an
antique firearm. See Duenas-Alvarez, 549 U.S. at 193.
Contrary to the government’s argument, California does
in fact prosecute cases involving antique firearms under
California Penal Code § 12021(a)(1). See People v. Charlton,
No. A122842, 2011 WL 1492529, at *1, *4 (Cal. Ct. App.
Apr. 19, 2011) (affirming conviction under California Penal
Code § 12021(a)(1) for possession of replica muzzle-loading
pistol); People v. Servin, No. E047394, 2010 WL 1619298,
at *1 (Cal. Ct. App. Apr. 22, 2010) (affirming conviction
under California Penal Code § 12021(a)(1) for “family
heirloom” replica single-shot muzzle-loading rifle incapable
of using modern ammunition); People v. Cushman, No.
C044129, 2005 WL 300024, at *1 (Cal. Ct. App. Feb. 9,
2005) (affirming conviction under California Penal Code
§ 12021(a)(1) for possession of black powder,
muzzle-loading firearms); see also Aguilera-Rios, 2014 WL
4800292, at *7 (citing these cases among others to conclude
that California actually prosecutes people for possessing
antique firearms under California Penal Code § 12021(a)(1)).
These prosecutions meet the “realistic probability” standard
of Duenas-Alvarez, 549 U.S. at 193. Aguilera-Rios, 2014
WL 4800292, at *7.
Finally, the definition of a firearm in the California Penal
Code is not divisible. Thus, as the Supreme Court made clear

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in Descamps, 133 S. Ct. 2276, the modified categorical
approach is inapplicable. Id. at 2283–86.
Because the state felon in possession of a firearm statute
under which Hernandez was convicted criminalizes more
conduct than the federal felon in possession of a firearm
statute, there is no categorical match. See Aguilera-Rios,
2014 WL 4800292, at *9. Without the benefit of our recent
precedent, the district court erred in applying the eight-level
enhancement, and we remand Hernandez’s case for
re-sentencing. Because Hernandez is entitled to relief, we do
not address his other arguments as to why his conviction does
not qualify as an aggravated felony.
REVERSED AND REMANDED.

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