United States v. Jorge Aguilera-Rios

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50597

Plaintiff-Appellee,

D.C. No.

v. 3:11-cr-02734-H-1

JORGE AGUILERA-RIOS,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued and Submitted

February 7, 2014—Pasadena, California

Filed June 17, 2014

Before: Harry Pregerson, Michael R. Murphy*,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

*

The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.

Court of Appeals for the Tenth Circuit, sitting by designation.

2 UNITED STATES V. AGUILERA-RIOS

SUMMARY**

Criminal Law

The panel reversed a conviction for illegal reentry in a

case in which the defendant contended that, after Moncrieffe

v. Holder, 133 S. Ct. 1678 (2013), his prior removal order

was invalid because it was based on a conviction under

California Penal Code § 12021(c)(1), which lacked an antique

firearms exception and thus was not a categorical match for

the federal firearms aggravated felony.

The panel found that the defendant showed good cause to

excuse his failure to raise his Moncrieffe argument in the

district court, and therefore declined to find the argument

waived. The panel rejected the government’s argument that

this court cannot retroactively consider Moncrieffe in

evaluating whether the defendant was removable as charged.

The panel held that because § 12021(c)(1) does not have

an antique firearms exception, and California prosecutes

offenses involving antique firearms, a conviction under that

statute is not a categorical match for the federal aggravated

felony firearms offense, and the underlying removal order

was invalid.

**

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. AGUILERA-RIOS 3

COUNSEL

Kara Hartzler, Federal Defenders of San Diego, Inc., San

Diego, California, for Defendant-Appellant.

Mark R. Rehe (argued) and Bruce R. Castetter, Assistant

United States Attorneys, San Diego, California, for Plaintiff-

Appellee.

OPINION

BERZON, Circuit Judge:

Jorge Aguilera-Rios (“Aguilera”), a citizen of Mexico,

was convicted of a California firearms offense, removed from

the United States on the basis of that conviction, and, when

he returned to the country, tried and convicted of illegal

reentry under 8 U.S.C. § 1326. He contends that his prior

removal order was invalid because his conviction under

California Penal Code § 12021(c)(1) was not a categorical

match for the federal firearms aggravated felony. We agree

that he was not originally removable as charged, and so could

not be convicted of illegal reentry. We therefore reverse the

judgment of conviction.

I.

Aguilera entered the United States without inspection at

the age of five to live with his parents, who were lawful

permanent residents. He became a lawful permanent resident

in 2000. Two years later, he was convicted of unlawful

4 UNITED STATES V. AGUILERA-RIOS

firearms possession in violation of California Penal Code

§ 12021(c)(1).1

In 2005, Aguilera was served with a Notice to Appear,

alleging that he had been convicted of a crime involving

moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and an

aggravated felony firearms offense, 8 U.S.C. § 1227(a)(2)(C),

and so was subject to removal. One week later, Aguilera

appeared before an Immigration Judge (“IJ”). He admitted

that he had been convicted of unlawful firearms activity in

violation of California Penal Code § 12021(c)(1), but did not

concede removability. The IJ nonetheless held Aguilera

“subject to removal as charged,” and denied him any relief

from removal. Aguilera was removed to Mexico.

Six years later, Aguilera was charged with attempted

entry after deportation, in violation of 8 U.S.C. § 1326(a) and

(b). Aguilera moved to dismiss the indictment under

§ 1326(d), arguing that, during the 2005 removal

proceedings, the IJ did not meaningfully advise him of his

opportunity to apply for voluntary departure. The district

court denied the motion, and Aguilera was found guilty of

illegal reentry. Aguilera was sentenced to time served, and

has since been removed to Mexico.

On April 23, 2013, after Aguilera filed his opening brief

in this case, the Supreme Court issued its decision in

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), concerning

application of the categorical approach in immigration cases.

Although that case involved a marijuana conviction, the

1

This section was replaced by California Penal Code § 29805, effective

January 1, 2012. For clarity, we refer to the statute as California Penal

Code § 12021(c)(1).

UNITED STATES V. AGUILERA-RIOS 5

majority opinion addressed an argument by the Solicitor

General that, under the Court’s analysis, “a conviction under

any state firearms law that lacks . . . an exception [for antique

firearms present in the federal firearms statute] will be

deemed to fail the categorical inquiry.” Id. at 1693. Aguilera

moved to file a substitute opening brief in this case, arguing

that, after Moncrieffe, his 2005 removal order was invalid for

a second reason (in addition to the previously asserted due

process violation): Aguilera was never deportable as charged

because the California statute of conviction lacked an antique

firearms exception. We accepted the substitute brief, and the

government responded to Aguilera’s arguments in its

answering brief.

We review Aguilera’s collateral attack on his 2005

removal order de novo. See United States v. Lopez-

Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc).

II.

“A defendant charged with illegal reentry pursuant to

8 U.S.C. § 1326 has a due process right to bring a collateral

attack challenging the validity of his underlying deportation

order because it serves as a predicate element of his

conviction.” United States v. Melendez-Castro, 671 F.3d

950, 953 (9th Cir. 2012) (per curiam) (citation omitted).

Section 1326(d) expressly provides for such collateral attacks

on an underlying deportation order, but establishes limits on

them. A defendant must demonstrate that: (1) he exhausted

all administrative remedies available to appeal his prior

removal order; (2) the prior removal proceedings “improperly

deprived [him] of the opportunity for judicial review;” and

(3) the entry of the prior removal order was “fundamentally

unfair.” 8 U.S.C. § 1326(d).

6 UNITED STATES V. AGUILERA-RIOS

The government recognizes that the first two elements of

§ 1326(d) have been met. It maintains, however, that

Aguilera “cannot meet the last element, i.e., ‘fundamental

unfairness.’”

“An underlying removal order is ‘fundamentally unfair’

if (1) an alien’s ‘due process rights were violated by defects

in the underlying deportation proceeding,’ and (2) ‘he

suffered prejudice as a result of the defects.’” United States

v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)

(citation omitted). If Aguilera “was removed when he should

not have been,” his 2005 removal was fundamentally unfair,

and he may not be convicted of reentry after deportation.

United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.

2006).

III.

Aguilera’s central contention is that the generic “federal

definition of a ‘firearm’ specifically exempts antique

firearms, while the California definition of a firearm does not.

Thus, a person may be convicted under Cal[infornia] Penal

Code § 12021 for conduct that does not fall within the

firearms ground of removal.” The government asks us not to

reach this argument on the ground that Aguilera waived it by

failing to raise it in the district court. In addition, the

government argues that Moncrieffe cannot be retroactively

applied to invalidate a removal that was proper under the law

at the time it was ordered. We address each of these points in

turn.

UNITED STATES V. AGUILERA-RIOS 7

A.

As to waiver, the government contends that Aguilera’s

failure to raise his new Moncrieffe argument “before trial” as

part of his motion to dismiss the indictment effected a waiver

pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B).

That rule provides that “a motion alleging a defect in the

indictment or information” “must be raised before trial.” Fed.

R. Crim. P. 12(b)(3)(B).

We decline to find such a waiver here. Rule 12(e) sets

forth specifically the circumstances under which an argument

is waived. It provides that “[a] party waives any Rule

12(b)(3) defense, objection, or request not raised by the

deadline the court sets [for pretrial motions].” Fed. R. Crim.

P. 12(e). But Rule 12(e) further indicates that “[f]or good

cause, the court may grant relief from the waiver.” Id. On

appeal, we have held that “‘even issues that are deemed

waived [in the district court] under Rule 12 may be addressed

by this court and relief may be granted’ where good cause is

shown for the party’s failure to raise the argument earlier.”

United States v. Anderson, 472 F.3d 662, 669 (9th Cir. 2006)

(quoting United States v. Murillo, 288 F.3d 1126, 1135 (9th

Cir. 2002)) (internal quotation marks omitted) (emphasis and

alteration in original). We find good cause to excuse

Aguilera’s failure to raise this argument in the district court.

Prior to Moncrieffe, Aguilera would have had no reason

to challenge whether he was properly removed for a “firearms

offense.” As we explain below, this Court’s caselaw prior to

Moncrieffe foreclosed the argument he now makes. See Gil

v. Holder, 651 F.3d 1000, 1005–06 (9th Cir. 2011). We have

previously (albeit not explicitly in the Rule 12 context)

“elect[ed] to entertain [an] issue [raised for the first time on

8 UNITED STATES V. AGUILERA-RIOS

appeal] because of a change in the intervening law that

brought the issue into focus.” In re Skywalkers, Inc., 49 F.3d

546, 548 n.4 (9th Cir. 1995) (citing Romain v. Shear,

799 F.2d 1416, 1419 (9th Cir. 1986) (holding that a change in

the law during the pendency of an appeal permits

entertainment of an issue not previously raised), cert. denied,

481 U.S. 1050 (1987)); cf. United States v. Tekle, 329 F.3d

1108, 1112 (9th Cir. 2003) (affirming finding of “‘no good

cause’” to excuse a Rule 12 waiver “‘because . . . United

States v. Gantt, 194 F.3d 987 (9th Cir. 1999) . . . did not

change the law. In fact, the Gantt court acknowledged as

much.’”).

Moreover, Aguilera demonstrated diligence by moving in

this Court within a month after Moncrieffe was decided to

substitute his opening brief. And the government had a full

opportunity to respond in written briefing and at oral

argument to this purely legal issue. Aguilera has therefore

shown “good cause” to excuse his failure to raise this

argument in the district court. We decline to find it waived.

B.

The government next contends that Moncrieffe cannot be

retroactively applied to invalidate Aguilera’s 2005 removal

order. It cites United States v. Vidal-Mendoza, 705 F.3d 1012

(9th Cir. 2013), for the proposition that on collateral review,

a removal is to be judged “under the applicable law at the

time of [the] removal hearing,” id. at 1013, not “post-removal

precedent,” id. at 1016.

Vidal-Mendoza concerned the scope of an IJ’s duty to

advise a noncitizen of his eligibility for discretionary relief.

It held that a noncitizen’s due process rights are not violated

UNITED STATES V. AGUILERA-RIOS 9

if an IJ informs him, based on controlling law at the time of

the removal hearing, that he is ineligible for relief, even if

post-removal changes in the law would have altered that

analysis. Id. at 1016–17. Noting that “an IJ need not

anticipate future ‘change[s] in law,’” Vidal-Mendoza

suggested that applying post-removal precedent on collateral

review would violate “our long-stated principle that ‘IJs are

not expected to be clairvoyant’ when discharging their duty

to inform.” Id. at 1017 (quoting Lopez-Velasquez, 629 F.3d

at 900–01) (alteration in original).

Vidal-Mendoza and its predecessor, Lopez-Velasquez, do

not apply here. Those cases asked what law applies when

evaluating whether an IJ violated its duty to inform the

noncitizen of potential avenues for relief. This case concerns

not the duty to inform the noncitizen of his eligibility for

relief in a removal proceeding, but whether he was removable

at all.

In a similar case, the Tenth Circuit concluded that

“[d]ecisions of statutory interpretation are fully retroactive

because they do not change the law, but rather explain what

the law has always meant.” United States v. Rivera-Nevarez,

418 F.3d 1104, 1107 (10th Cir. 2005) (citing Rivers v.

Roadway Express Inc., 511 U.S. 298, 312–13 (1994) (“A

judicial construction of a statute is an authoritative statement

of what the statute meant before as well as after the decision

of the case giving rise to that construction.”)).

Rivera-Nevarez concerned whether the Supreme Court

decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), which held

that a Florida driving under the influence of alcohol offense

did not constitute a “crime of violence,” would apply

retroactively to invalidate a defendant’s 1999 removal order.

Rivera-Nevarez, 418 F.3d at 1107. The court held that

10 UNITED STATES V. AGUILERA-RIOS

“[b]ecause Leocal involves a question of statutory

construction, its holding is retroactively applicable to the time

of Rivera-Nevarez’s removal hearing.” Id. As Leocal merely

“explain[ed] what the law has always meant,” Rivera-Nevarez

noted that it “provides the correct interpretation of the law as

it stood in 1999 when Rivera-Nevarez was deported.” Id.

We reached the same conclusion as the Tenth Circuit in

Camacho-Lopez. Like Rivera-Nevarez, Camacho-Lopez

concerned a pre-Leocal removal that was invalid after Leocal.

Camacho-Lopez retroactively applied Leocal, explaining that

“the government concedes that Leocal—a substantive

interpretation of ‘crime of violence’ under 18 U.S.C.

§ 16—applies to Camacho’s 1998 deportation hearing[,]” that

“Camacho’s Notice to Appear charged him as removable only

for having committed an aggravated felony[,]” and that after

Leocal, “Camacho’s prior conviction did not fit that

definition[.]” Camacho-Lopez, 450 F.3d at 930 (emphasis

omitted). We therefore reversed his § 1326 conviction as

having been premised on an invalid removal order. Id.

Camacho-Lopez has since been cited by district courts

within the Ninth Circuit for the proposition that any post-

removal substantive interpretation of a “crime of violence” or

“aggravated felony” provision is fully retroactive on

collateral review. See, e.g., United States v. Dominguez, No.

CR12-879 CAS, 2013 WL 2237786, at *3 n.2 (C.D. Cal. May

20, 2013); United States v. Rodriguez Garcia, No.

CR-09-6093-EFS, 2010 WL 996409, at *2 (E.D. Wash. Mar.

15, 2010). Our recent precedent, however, counsels a more

restrictive reading of Camacho-Lopez. See United States v.

Gomez, ___ F.3d ___, 2014 WL 1623725 (9th Cir. Apr. 24,

2014).

UNITED STATES V. AGUILERA-RIOS 11

Unlike Vidal-Mendoza and Lopez-Velasquez, Gomez did

not concern the IJ’s duty to inform. Gomez nonetheless

considered only the federal law “at the time [Gomez] was

ordered deported in January 2006” in determining “whether

[the] alien was eligible for relief from deportation.” Id. at

*10 (emphasis added). Gomez did not, however, involve

application of post-removal precedent on collateral review

where that precedent would render a noncitizen not

removable; Camacho-Lopez did. Indeed, Gomez specifically

distinguished Camacho-Lopez, noting that “[i]t concerned

whether [Leocal] was nonetheless applicable on collateral

review to determine whether he was subject to removal as

charged—not, as in this case, whether, although removable,

he was entitled to discretionary relief.” Id. at *10 n.12

(distinguishing “relief from removal” from “removability”).

Moreover, whether or not one regards Camacho-Lopez as

binding precedent on that point,2 there is good reason to

distinguish between discretionary relief, as in Gomez, and

grounds for removability for purposes of collateral review of

removal proceedings. Section 1326 is concerned with

whether a noncitizen has reentered after being “denied

admission, excluded, deported, or removed.” 8 U.S.C.

§ 1326(a). Where a noncitizen is in fact removable, the

denial of an opportunity to apply for a voluntary departure,

the discretionary relief at issue in Gomez, does not implicate

2

Camacho-Lopez mentioned that the government “concede[d]” Leocal’s

retroactive application. 450 F.3d at 930. To say that something was

conceded is ordinarily to indicate that it is so. To note a concession is

different from stating, as we often do, that a legal argument was not

raised, or that we are assuming, but not deciding, a particular legal

standard. See, e.g., In re Pac. Pictures Corp., 679 F.3d 1121, 1126 n.2

(9th Cir. 2012). Still, we shall assume for purposes of this opinion that

Camacho-Lopez is not a definitive holding on the issue we here decide.

12 UNITED STATES V. AGUILERA-RIOS

the propriety of a removal in the same fundamental a way as

does an IJ’s legal determination that a noncitizen is

removable on the basis of precedent we now know to have

been erroneous.

Where relief is discretionary, it may not have been

accorded, requiring an after-the-fact inquiry comparing the

equities in a particular case to those in similar cases. See,

e.g., United States v. Rojas-Pedroza, 716 F.3d 1253, 1263

(9th Cir. 2013) (describing the process of determining

whether a noncitizen was prejudiced by an IJ’s failure to

advise him of his eligibility for discretionary relief, including

the “focus on whether aliens with similar circumstances

received relief”). And where relief was not available at the

time, there are no comparable cases with which to conduct

the required analysis. Moreover, the relevant facts tending to

show whether an IJ would have granted discretionary relief

to a particular noncitizen would often have to be

reconstructed, because there would have been no reason to

develop them if the noncitizen was categorically ineligible for

relief from removal at the time. Finally, most forms of relief

from removal are matters of grace as to someone already

determined to be removable. See, e.g., Tovar-Landin v.

Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004) (describing

voluntary departure, the form of relief also at issue in

Gomez). Failing to obtain such discretionary relief is quite

different than the situation here, where Aguilera would have

had the right to be in the United States, as a lawful permanent

resident, but for the IJ’s determination that he was removable

— a determination we now know to be legally erroneous after

Moncrieffe, as we explain below.

Where that is the question, the usual rule that statutory

interpretation decisions are fully retroactive should apply.

UNITED STATES V. AGUILERA-RIOS 13

Otherwise, an individual who had the right to remain here as

a legal resident — and to return to this country if he leaves —

but was removed as a result of a legal error, would be subject

to criminal conviction and incarcerated for returning. Such

an individual is in effect being criminally punished for the

government’s legal mistake. To maintain via enforcement

proceedings the finality of an otherwise proper removal order

is one thing; to impose criminal sanctions under these

circumstances is quite another.3

We therefore reject the government’s position that we

cannot consider Moncrieffe in evaluating whether Aguilera

was removable as charged. We proceed to consider

Aguilera’s challenge on the merits.

IV.

Federal law makes deportable “[a]ny alien who at any

time after admission is convicted under any law of

purchasing, selling, offering for sale, exchanging, using,

owning, possessing, or carrying . . . any . . . firearm or

destructive device (as defined in section 921(a) of Title 18) in

violation of any law.” 8 U.S.C. § 1227(a)(2)(C). Section

921(a)(3) defines the term “firearm,” stating, inter alia, that

“[s]uch term does not include an antique firearm.” 18 U.S.C.

§ 921(a)(3).

3

We note that a determination by this Court on collateral review that a

noncitizen’s conviction was not for a federal aggravated felony offense

would not affect the finality of the prior removal. See 8 C.F.R.

§ 1003.23(b)(1). It could, however, have other immigration consequences.

See, e.g., 8 U.S.C. § 1182(h).

14 UNITED STATES V. AGUILERA-RIOS

Aguilera asserts that after Moncrieffe, any conviction

under a state firearms statute lacking an exception for antique

firearms is not a categorical match for the federal firearms

ground of removal. We agree. And because Moncrieffe is

“clearly irreconcilable” with this Court’s prior case law,

particularly in Gil, we must follow Moncrieffe not Gil. See

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

Gil held that “in conducting the categorical analysis, we

do not consider the availability of affirmative defenses; the

fact that there may be an affirmative defense under the

federal statute, but not under the state statute of conviction,

does not mean that the state conviction does not fall

categorically within the federal statute.” 651 F.3d at 1005.

That general holding is still valid after Moncrieffe, as the

Court’s “decision said nothing about affirmative defenses.”

United States v. Albino-Loe, 747 F.3d 1206, 1212 (9th Cir.

2014). But Gil’s treatment of the antique firearms exception

of § 1227(a)(2)(C) as an affirmative defense, which need not

be considered in a categorical analysis, see 651 F.3d at 1005

n.3, rather than as an element of the definition of the criminal

offense, which must be, has been clearly overruled.

A bit of background on Moncrieffe is necessary to

understand its effect on our case law: Moncrieffe, a lawful

permanent resident, pleaded guilty under Georgia law to

possession of marijuana with intent to distribute. Moncrieffe,

133 S. Ct. at 1683. Alleging that Moncrieffe’s conviction

constituted an aggravated felony, the government sought to

deport him. Id. The Board of Immigration Appeals

concluded that possession with intent to distribute is an

offense under the Controlled Substances Act (“CSA”),

21 U.S.C. § 841(a), punishable by up to five years

imprisonment, id. § 841(b)(1)(D), and therefore an

UNITED STATES V. AGUILERA-RIOS 15

aggravated felony. Moncrieffe, 133 S. Ct. at 1683. The Fifth

Circuit affirmed, rejecting Moncrieffe’s reliance upon

§ 841(b)(4), which makes distribution of a small amount of

marijuana without remuneration punishable as only a

misdemeanor. Id. The Supreme Court reversed. Id. at 1684.

The Court considered whether Moncrieffe’s conviction

necessarily involved facts equating to the aggravated felony

of “‘illicit trafficking in a controlled substance,’” which

“encompasses all state offenses that ‘proscrib[e] conduct

punishable as a felony under [the CSA].’” Id. at 1685

(alteration in original) (citations omitted). “[T]o satisfy the

categorical approach, a state drug offense must meet two

conditions: [i]t must ‘necessarily’ proscribe conduct that is an

offense under the CSA, and the CSA must ‘necessarily’

prescribe felony punishment for that conduct.” Id.

Moncrieffe thus reaffirmed a “core feature of the categorical

approach: its focus on the minimal conduct that would satisfy

the statutory definition of the offense of conviction.”

Albino-Loe, 747 F.3d at 1213 (emphasis in original).

Possession with intent to distribute was clearly an offense

under the CSA, so the key question in Moncrieffe was

whether that conduct was punishable as a felony or

misdemeanor. The least culpable conduct (e.g., sharing a

small amount of marijuana for no remuneration) would result

in conviction under the Georgia statute, but trigger only

misdemeanor punishment under the CSA. “So Moncrieffe’s

[state] conviction could correspond to either the CSA felony

or the CSA misdemeanor.” Moncrieffe, 133 S. Ct. at

1686–87. Moncrieffe held that “[a]mbiguity on this point

means that the conviction did not ‘necessarily’ involve facts

that correspond to an offense punishable as a felony under the

16 UNITED STATES V. AGUILERA-RIOS

CSA. Under the categorical approach, then, Moncrieffe was

not convicted of an aggravated felony.” Id. at 1687.

Moncrieffe’s response to an argument by the Solicitor

General in that case is of critical importance here:

[T]he Government suggests that our

holding will frustrate the enforcement of

other aggravated felony provisions, like

§ 1101(a)(43)(C), which refers to a federal

firearms statute that contains an exception for

‘antique firearm[s],’ 18 U.S.C. § 921(a)(3).

The Government fears that a conviction under

any state firearms law that lacks such an

exception will be deemed to fail the

categorical inquiry. But [Gonzales v.]

Duenas–Alvarez requires that there be “a

realistic probability, not a theoretical

possibility, that the State would apply its

statute to conduct that falls outside the generic

definition of a crime.” 549 U.S. [183,] 193

[(2007)]. To defeat the categorical comparison

in this manner, a noncitizen would have to

demonstrate that the State actually prosecutes

the relevant offense in cases involving antique

firearms.

Id. at 1693 (emphasis added).

Aguilera argues that this analysis governs here, and

because California does prosecute cases involving antique

firearms under California Penal Code § 12021(c)(1), his

conviction is not a categorical match for the federal

aggravated felony. This argument is consistent not only with

UNITED STATES V. AGUILERA-RIOS 17

the express language of Moncrieffe’s antique firearms

discussion, quoted above, but also with the opinion’s overall

analysis and holding.

Moncrieffe requires us to presume that Aguilera was

convicted of an offense under California Penal Code

§ 12021(c)(1) using an antique firearm, because California

actually prosecutes people for such conduct. See, e.g., People

v. Charlton, No. A122842, 2011 WL 1492529, at *1, 4 (Cal.

Ct. App. Apr. 19, 2011) (affirming conviction under

California Penal Code § 12021 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 for “family

heirloom” replica single-shot muzzle-loading rifle incapable

of using modern ammunition); People v. Coffman, No.

C044728, 2005 WL 958409, at *1–2 (Cal. Ct. App. Apr. 26,

2005) (affirming conviction under California Penal Code

§ 12021 where the gun was described as an “antique

cowboy-style gun with a long barrel” and an “old-style cap

and ball pistol that was rusted and would only fire one shot at

a time and had to be reloaded each time to fire”); People v.

Cushman, No. C044129, 2005 WL 300024, at *1 (Cal. Ct.

App. Feb. 9, 2005) (affirming conviction under California

Penal Code § 12021 for possession of black powder,

muzzle-loading firearms). These recent examples of

California prosecutions involving antique firearms meet the

“realistic probability” standard of Duenas-Alvarez. 549 U.S.

at 193. Under the express language of Moncrieffe, the

“categorical comparison” is therefore “defeat[ed].” 133 S.

Ct. at 1693.

Moncrieffe’s overall analysis also supports the conclusion

that California Penal Code § 12021(c)(1) and the federal

18 UNITED STATES V. AGUILERA-RIOS

firearms aggravated felony offense are not a categorical

match. As this Court recently recognized, Moncrieffe

clarified that a definitional element of a criminal offense, like

the antique firearms exception, must be considered for

purposes of the categorical approach, even if affirmative

defenses are not. See Albino-Loe, 747 F.3d at 1213–14.

Moncrieffe squarely rejected the Solicitor General’s argument

in that case that “the categorical approach is concerned only

with the ‘elements’ of an offense,” not a definitional element

like § 841(b)(4), the social marijuana sharing exception, or

§ 921(a)(3)(D), the antique firearm exception. 133 S. Ct. at

1683. “[W]hen Congress has chosen to define the generic

federal offense by reference to punishment, it may be

necessary to take account of federal sentencing factors too.”

Id. at 1687 (emphasis added). The Court therefore held that

“to qualify as an aggravated felony, a conviction . . . must

necessarily establish” “the presence . . . of certain factors that

are not themselves elements of the crime.” Id.

In Moncrieffe, this holding meant that a state conviction

must establish that the offense did not involve social sharing

of a small quantity of marijuana to be a categorical match. In

this case, it would mean establishing that the offense did not

involve an antique firearm. As we explained in Albino-Loe,

the antique firearms exception appears in

18 U.S.C. § 921, a section titled “Definitions.”

See 18 U.S.C. § 921(a)(3) (“The term

‘firearm’ means (A) any weapon (including a

starter gun) which will or is designed to or

may readily be converted to expel a projectile

by the action of an explosive; (B) the frame or

receiver of any such weapon; (C) any firearm

muffler or firearm silencer; or (D) any

UNITED STATES V. AGUILERA-RIOS 19

destructive device. Such term does not include

an antique firearm.” (emphasis added)). One

cannot know what conduct constitutes a

firearms offense without knowing the

definition of “firearm,” which excludes

antique firearms.

747 F.3d at 1214 (final emphasis added). A state statute that

allows conviction for offenses using antique firearms would

therefore not equate to the § 1227(a)(2)(C) aggravated felony

offense.

Moncrieffe further clarified that these definitional

elements must be considered regardless of which party would

bear the burden of proof in a criminal prosecution. In

Moncrieffe, the Solicitor General noted that in a criminal

prosecution, the government “need not negate the § 841(b)(4)

factors[;] . . . [i]nstead, the burden is on the defendant to show

that he qualifies” for misdemeanor treatment under

§ 841(b)(4). 133 S. Ct. at 1688. The Court acknowledged

that the defendant bears the burden in a criminal trial, but

concluded that the burden was irrelevant to the “‘more

focused, categorical inquiry’ . . . whether the record of

conviction of the predicate offense necessarily establishes

conduct that the CSA, on its own terms, makes punishable as

a felony.” Id. (citation omitted). “Our concern is only which

facts” the generic federal definition required, rather than

“who has the burden of proving which facts in a federal

prosecution.” Id. at 1689. Thus, to the extent that Gil relied

on the fact that, in a federal criminal prosecution, a defendant

would be required to prove that the firearm was an antique,

20 UNITED STATES V. AGUILERA-RIOS

see 651 F.3d at 1005 n.3 (citing criminal cases), it has been

overruled by Moncrieffe.4

Moncrieffe also reiterated that in evaluating whether there

is a categorical match, “we must presume that the conviction

‘rested upon [nothing] more than the least of th[e] acts’

criminalized.” 133 S. Ct. at 1684 (alteration in original)

(citation omitted). In that case, doing so meant presuming

that the defendant had shared a small quantity of marijuana

for no remuneration — since Georgia actually prosecuted

people for such conduct. The same is true of the antique

firearm exception. Moncrieffe requires us to presume that

Aguilera was convicted of an offense under California Penal

Code § 12021(c)(1) using an antique firearm, as long as

California actually prosecutes people for such conduct —

which, as we have seen, it does.

In sum, California Penal Code § 12021(c)(1) punishes

anyone who “owns, purchases, receives, or has in possession

or under custody or control, any firearm” within ten years of

a prior conviction for certain misdemeanors. It does not have

an antique firearms exception, and California prosecutes for

offenses involving antique firearms. A conviction under

California Penal Code § 12021(c)(1) is therefore not a

categorical match for the federal aggravated felony “firearms

offense.” “Because the statute is missing an element of the[ ]

generic crime[ ], our inquiry ends here—we do not undertake

4

We are not holding that Gil’s distinction between affirmative defenses

and elements of a crime is invalid for all categorical analyses. Rather, we

read Moncrieffe as applying particularly to definitional provisions, and as

holding that as to such provisions, the allocation of the burden of proof is

not relevant to a categorical analysis.

UNITED STATES V. AGUILERA-RIOS 21

a modified categorical analysis.” Gomez, 2014 WL 1623725,

at *17.

The government concedes that Aguilera’s conviction was

not for a “crime of moral turpitude” — the other potential

ground of removal. As a result, there was no legal basis for

his 2005 removal order. As Aguilera “was removed when he

should not have been,” he “clearly suffered prejudice.”

Camacho-Lopez, 450 F.3d at 930.

A valid prior removal order “serves as a predicate element

of [Aguilera’s] conviction” for illegal reentry under § 1326.

Melendez-Castro, 671 F.3d at 953. As Aguilera’s 2005

removal order was invalid, we reverse his conviction.5

REVERSED.

5

As we reverse Aguilera’s conviction on this basis, we need not

consider his alternative argument that the IJ violated due process by not

affording him a meaningful opportunity to apply for pre-conclusion

voluntary departure.