United States v. Melchor Orozco-Orozco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50146

Plaintiff-Appellee, D.C. No.

3:21-cr-02349-

v. TWR-1

MELCHOR OROZCO-OROZCO,

OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Todd W. Robinson, District Judge, Presiding

Argued and Submitted August 15, 2023

Pasadena, California

Filed March 12, 2024

Before: Kim McLane Wardlaw, Morgan Christen, and

Jennifer Sung, Circuit Judges.

Opinion by Judge Christen

2 USA V. OROZCO-OROZCO

SUMMARY *

Criminal Law

In a case in which Melchor Orozco-Orozco was

convicted of being a previously removed alien found in the

United States in violation of 8 U.S.C. § 1326, the panel

affirmed the district court’s order denying Orozco’s motion

to dismiss his indictment on equal protection grounds,

reversed the district court’s order denying Orozco’s motion

to dismiss under 8 U.S.C. § 1326(d), and remanded for

further proceedings.

Orozco conceded that his equal protection argument is

foreclosed by United States v. Carillo-Lopez, 68 F.4th 1133

(9th Cir. 2023).

Orozco was originally removed from the United States

in 2013 through an expedited process after an immigration

officer determined that his 2005 conviction for carjacking in

violation of California Penal Code § 215 was an aggravated

felony under the Immigration and Nationality Act (INA)

because it qualifies as a “crime of violence.” Orozco argued

that his carjacking conviction does not qualify as an

aggravated felony under the INA because § 215 is not a

categorical match for a “theft offense.”

The California Supreme Court has held that a person can

commit § 215 carjacking without the intent to steal required

by a generic theft offense, see People v. Montoya, 94 P.3d

1098, 1100 (Cal. 2004), and this court is bound by the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. OROZCO-OROZCO 3

California Supreme Court’s statement of the elements of

§ 215, see Johnson v. United States, 559 U.S. 133, 138

(2010). The panel therefore concluded that Orozco’s 2005

carjacking conviction is not a categorical match for a generic

theft offense and thus is not an aggravated felony under the

INA.

The panel remanded for the district court to consider in

the first instance whether Orozco has satisfied all three

prongs of § 1326(d)(1)-(3).

COUNSEL

Jami S. Johnson (argued) and Kara Hartzler, Federal

Defenders of San Diego Inc., San Diego, California, for

Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;

Daniel E. Zipp, Assistant United States Attorney, Appellate

Section Chief, Criminal Division; Randy S. Grossman,

United States Attorney; Office of the United States Attorney,

United States Department of Justice, San Diego, California;

for Plaintiff-Appellee.

4 USA V. OROZCO-OROZCO

OPINION

CHRISTEN, Circuit Judge:

Melchor Orozco-Orozco appeals his conviction for

being a previously removed alien found in the United States

in violation of 8 U.S.C. § 1326. Orozco 1 was originally

removed from the United States in 2013 through an

expedited process after an immigration officer determined

that his 2005 conviction for carjacking in violation of

California Penal Code § 215 was an aggravated felony under

the Immigration and Nationality Act (INA) because it

qualifies as a “crime of violence.” In this proceeding,

Orozco filed a motion to dismiss the § 1326 charge, claiming

that the prior removal order was invalid because § 215

carjacking is not an aggravated felony. The Government

conceded in the district court that § 215 carjacking is not a

crime of violence, but argued that Orozco was still

removable in 2013 because his carjacking conviction

qualified as a “theft offense,” and thus as an aggravated

felony, under the INA. The district court agreed with the

Government and denied Orozco’s motion to dismiss the

§ 1326 charge. On appeal, Orozco argues that his carjacking

conviction does not qualify as an aggravated felony under

the INA because § 215 carjacking is not a categorical match

for a theft offense.

The California Supreme Court has held that a person can

commit § 215 carjacking without the intent to steal required

by a generic theft offense, see People v. Montoya, 94 P.3d

1

The defendant’s name appears in the record as both “Orozco-Orozco”

and “Orozco.” We use Orozco in this opinion because that is the name

the defendant uses in his briefing.

USA V. OROZCO-OROZCO 5

1098, 1100 (Cal. 2004), and we are bound by the California

Supreme Court’s statement of the elements of § 215, see

Johnson v. United States, 559 U.S. 133, 138 (2010). We

therefore conclude that Orozco’s 2005 carjacking conviction

is not a categorical match for a generic theft offense and thus

is not an aggravated felony under the INA. We reverse the

district court’s denial of Orozco’s motion to dismiss his

§ 1326 indictment, but remand so the district court may

consider in the first instance whether Orozco has satisfied all

three prongs of § 1326(d)(1)–(3).

I.

Orozco, a native and citizen of Mexico, entered the

United States without legal status when he was ten years old.

In 2005, at age 20, he was convicted of felony carjacking

under California Penal Code § 215. Although he initially

received a probationary sentence, Orozco’s probation was

eventually revoked and he received a sentence of three years

in California state prison.

In 2013, Immigration and Customs Enforcement (ICE)

identified Orozco while he was serving his state prison

sentence. ICE concluded that Orozco was eligible for

expedited removal under 8 U.S.C. § 1228(b) and served him

with a Notice of Intent to Issue a Final Administrative

Removal Order (Notice of Intent). Section 1228(b) permits

the Attorney General to commence expedited administrative

removal proceedings against nonresident aliens who have

been convicted of aggravated felonies as defined in 8 U.S.C.

§ 1101(a)(43). See United States v. Garcia-Martinez, 228

F.3d 956, 960 (9th Cir. 2000). An ICE agent served Orozco

with the Notice of Intent, and Orozco signed the Notice. By

filling in the boxes on the form, Orozco indicated that he did

not wish to contest his removal, admitted he was deportable,

6 USA V. OROZCO-OROZCO

acknowledged that he was not eligible for any form of relief

from removal, and waived the opportunity to apply for

judicial review of the Notice of Intent. 2 Contemporaneous

with the Notice of Intent, an immigration officer issued a

Final Administrative Removal Order concluding that

Orozco was immediately removable because his carjacking

conviction was a “crime of violence” under § 1101(a)(43)(F)

and thus an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii). The Government deported Orozco in

2013.

Orozco made two attempts to reenter the United States

and he was convicted of illegal reentry and deported each

time. In 2021, he made a third reentry attempt. He was

arrested and charged with felony illegal entry in violation of

8 U.S.C. § 1325(a)(1) and also charged with being a

previously removed alien found in the United States in

violation of 8 U.S.C. § 1326(a) and (b).

Orozco moved to dismiss the § 1326 charge on the

ground that his 2005 carjacking conviction could not serve

as a predicate offense for the 2013 final administrative

removal order because, he argued, § 215 is not a “crime of

violence” under § 1101(a)(43)(F). 3 The Government

2

Orozco has subsequently attested that he could not read the paperwork

he signed because he could not read English; that the ICE agent did not

read the paperwork to Orozco or have it translated for him; that the agent

instructed Orozco to sign the paperwork; and that Orozco believed he

had no choice but to sign the paperwork.

3

Orozco also moved to dismiss the indictment on the ground that § 1326

violates the Equal Protection Clause of the Fifth Amendment of the

United States Constitution. The district court denied the motion. In his

reply brief, Orozco concedes that our decision in United States v.

Carrillo-Lopez, 68 F.4th 1133 (9th Cir. 2023), forecloses his Fifth

Amendment argument. We agree, and we therefore affirm the district

USA V. OROZCO-OROZCO 7

conceded in the district court that § 215 carjacking is not a

crime of violence. 4 Instead, the Government argued in the

district court that the 2013 final administrative removal order

was supported by a qualifying predicate aggravated felony

because § 215 carjacking is a categorical match for a generic

theft offense under § 1101(a)(43)(G). 5 The district court

accepted this argument and denied Orozco’s motion to

dismiss. The Government filed a superseding information

charging Orozco under § 1326(a) and (b), and he entered a

conditional guilty plea to the superseding information,

retaining his right to file this appeal. The district court

court’s dismissal of Orozco’s Fifth Amendment claim. See id. at 1154

(“We conclude that Carrillo-Lopez did not meet his burden to prove that

Congress enacted § 1326 because of discriminatory animus against

Mexicans or other Central and South Americans.”).

4

The Government renewed that concession on appeal. The Government

has therefore waived—for purposes of this appeal—any argument that

§ 215 carjacking qualifies as an aggravated felony because it is a crime

of violence. See United States v. Mejia-Pimental, 477 F.3d 1100, 1104

n.7 (9th Cir. 2007). The Government subsequently submitted a letter

pursuant to Federal Rule of Appellate Procedure 28(j) seeking to

withdraw its concession because the Attorney General has taken the

contrary position in another case pending before our court, Gutierrez v.

Garland, Nos. 21-130 & 22-554. The Government’s letter

acknowledges that, regardless of its concession, the sole issue it raised

in response to Orozco’s motion to dismiss was that carjacking is an

aggravated felony because it qualifies as a generic theft offense. We

express no view on whether carjacking is a crime of violence or the

extent to which the Government’s concession in this case affects its

position in any other pending case.

5

Section 1101(a)(43)(G) defines the term “aggravated felony” to

include, in relevant part, “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment [is] at

least one year.” 8 U.S.C. § 1101(a)(43)(G).

8 USA V. OROZCO-OROZCO

sentenced Orozco to 24 months custody in the Bureau of

Prisons followed by two years of supervised release.

II.

We have jurisdiction to consider Orozco’s appeal

pursuant to 28 U.S.C. § 1291. We review de novo the

district court’s denial of Orozco’s motion to dismiss the

§ 1326 indictment on the ground that his 2005 carjacking

conviction does not qualify as an aggravated felony. See

United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th

Cir. 2014).

III.

A noncitizen charged with being a previously removed

alien found in the United States under § 1326 has a Fifth

Amendment right to collaterally attack the underlying

removal order. Id. Orozco challenges the 2013 final

administrative order of removal that serves as the predicate

for his § 1326 conviction. To succeed, Orozco must show

that he exhausted his administrative remedies, that the

deportation proceedings improperly deprived him of an

opportunity for judicial review, and that the entry of the 2013

final removal order was “fundamentally unfair.” 8 U.S.C.

§ 1326(d)(1)–(3). The district court denied the motion to

dismiss because it concluded that Orozco could not show

that the 2013 final removal order was fundamentally unfair,

as required by § 1326(d)(3).

Under our caselaw, the order was fundamentally unfair

if Orozco’s “due process rights were violated by defects in

his underlying deportation proceeding” and “he suffered

prejudice as a result of the defects.” Alvarado-Pineda, 774

F.3d at 1201. The 2013 final administrative removal order

was defective if the crime of conviction it relied on to find

USA V. OROZCO-OROZCO 9

Orozco removable, § 215 carjacking, does not qualify as an

aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

See United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir.

2015). We have not addressed in a published opinion

whether § 215 carjacking qualifies as a theft offense. 6

We apply the categorical approach to determine whether

§ 215 is a theft offense and thus an aggravated felony. See

United States v. Martinez-Hernandez, 932 F.3d 1198, 1205

(9th Cir. 2019). Under Taylor v. United States, 495 U.S. 575

(1990), we compare the elements of a state conviction with

the elements of the generic offense, without regard to the

actual conduct that led to the underlying conviction.

Mendoza-Garcia v. Garland, 36 F.4th 989, 994 (9th Cir.

2022). As applied here, Orozco argues that if § 215

carjacking punishes more conduct than a generic theft

offense, § 215 is overbroad and his conviction does not

qualify as an aggravated felony for immigration purposes.

See Alfred v. Garland, 64 F.4th 1025, 1031 (9th Cir. 2023)

(en banc).

We begin by identifying the elements of a generic theft

offense. We then compare the elements of a generic theft

offense with the elements of § 215 carjacking to determine

whether § 215 corresponds with, or is broader or narrower

than, a generic theft offense.

6

We did suggest in an unpublished memorandum disposition that § 215

carjacking may qualify as a generic theft offense. See Lucas v. Holder,

555 F. App’x 715, 715 (9th Cir. 2014). We concluded, however, that the

resolution of that question was immaterial because, at that time, § 215

qualified as a crime of violence under our caselaw. Id. at 715–16 (citing

Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010),

abrogated by Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018)).

10 USA V. OROZCO-OROZCO

A.

The definition of a generic theft offense is well-settled.

A generic theft offense is “a taking of property or an exercise

of control over property without consent with the criminal

intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or

permanent.” Ramirez-Villalpando v. Holder, 645 F.3d 1035,

1039 (9th Cir. 2011) (quoting Martinez-Perez v. Gonzales,

417 F.3d 1022, 1026 (9th Cir. 2005)). In formulating this

definition, we accounted for the fact that Congress’s use of

“theft offense” in § 1101(a)(43)(G), rather than just “theft,”

indicates that “theft offense” encompasses “different but

closely related” crimes beyond theft itself. United States v.

Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en

banc), superseded by statute on other grounds as explained

in United States v. Gomez-Mendez, 486 F.3d 599, 604–05

(9th Cir. 2007). The Supreme Court has also embraced this

definition. See Gonzales v. Duenas-Alvarez, 549 U.S. 183,

189 (2007).

Because “‘theft’ stems from the common law crime of

larceny,” we have looked to the common law to determine

the elements of a generic theft offense. Corona-Sanchez,

291 F.3d at 1204. Common-law larceny is “the felonious

taking and carrying away of the personal goods of another.”

United States v. Turley, 352 U.S. 407, 412 (1957) (quoting 4

William Blackstone, Commentaries *229). “Felonious” is a

common-law term of art meaning “intent to steal.” Carter v.

United States, 530 U.S. 255, 270 (2000). Felonious intent

(or intent to steal) requires that the defendant intend to

deprive the victim of possession of property without a

superior possessory interest to that of the victim. See United

States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970) (“It

was not an essential part of the common law larceny-type

USA V. OROZCO-OROZCO 11

offense that the thief knew who owned the property he took;

it was enough that he knew it did not belong to him.”); 52B

C.J.S. Larceny § 43 (2023) (“A larceny victim’s actual

ownership of the stolen property need not be proven but only

that the victim has a right to possession superior to that of

the defendant.” (emphasis added)); 50 Am. Jur. 2d Larceny

§ 31 (2023) (“The intent to steal or animus furandi, as an

element of theft by larceny, is the intent, without a good faith

claim of right, to permanently deprive the owner of

possession of personal property.”).

Consistent with larceny’s felonious intent requirement,

we have said that a generic theft offense is a specific-intent

crime that requires the government to show that the

defendant had the intent to deprive the owner of the rights

and benefits of ownership. See Alvarado-Pineda, 774 F.3d

at 1202–03. Orozco argues that § 215 carjacking lacks this

element because, as explained below, the California

Supreme Court has held that carjacking is a crime against

possession, not ownership. But the Government responds,

and we agree, that a generic theft offense does not require

that the defendant intend to deprive the titleholder of his or

her property. Instead, the government need only show that

the defendant intended to take property from a person with a

superior possessory interest in the property. Cf. United

States v. Sellers, 670 F.2d 853, 854 (9th Cir. 1982)

(“Common law larceny requires a taking of property from

the possession of another without his consent and with the

intent permanently to deprive him of possession.”);

Chiaramonte v. INS, 626 F.2d 1093, 1099 (2d Cir. 1980)

(“Proof of the identity of the owner of purloined property is

not a requisite element of the crime of larceny as it is defined

in most American jurisdictions.”). “Considered as an

element of larceny, ‘ownership’ and ‘possession’ may be

12 USA V. OROZCO-OROZCO

regarded as synonymous terms, for one who has a right to

the possession of goods as against the thief, as far as he or

she is concerned, is the owner of them.” 52B C.J.S. Larceny

§ 43 (emphasis added).

A generic theft offense therefore requires that the

defendant have the intent to deprive one with a superior

possessory interest of the rights and benefits of ownership.

Rather than focus on ownership versus possession as Orozco

suggests, we must instead consider whether the crime of

conviction requires the same specific intent to steal as a

generic theft offense. With this definition of a generic theft

offense in mind, we turn to the elements of Orozco’s

carjacking conviction.

B.

California Penal Code § 215 provides:

“Carjacking” is the felonious taking of a

motor vehicle in the possession of another,

from his or her person or immediate

presence, or from the person or immediate

presence of a passenger of the motor vehicle,

against his or her will and with the intent to

either permanently or temporarily deprive the

person in possession of the motor vehicle of

his or her possession, accomplished by means

of force or fear.

Cal. Penal Code § 215(a).

In People v. Montoya, the California Supreme Court

addressed the elements necessary for a conviction under

§ 215. 94 P.3d 1098. Montoya was convicted of § 215

carjacking and of the unlawful taking of a vehicle under

USA V. OROZCO-OROZCO 13

California Vehicle Code § 10851. Id. at 1099. Both

convictions arose from the same incident in which Montoya

feigned interest in a car that was for sale. Id. Rather than

test driving it, Montoya drove off with the car. Id. Montoya

argued on appeal that the unlawful taking of a vehicle is a

lesser included offense of § 215 carjacking, and because

California law prohibits multiple convictions based on

necessarily included offenses, he argued he could not be

convicted of both charges. Id. at 1099–1100. To decide

whether one offense is “necessarily included” in another,

California courts apply an elements test and ask whether all

the elements of one offense are a subset of the other. Id. at

1100.

In Montoya, the California Supreme Court held that

§ 10851(a), unlawful taking of a vehicle, is not a lesser

included offense of § 215 carjacking. Id. The court

explained that unlawful taking of a vehicle “is committed

when a person ‘drives or takes a vehicle not his or her own,

without the consent of the owner . . . and with intent either

to permanently or temporarily deprive the owner . . . of his

or her title to or possession of the vehicle, whether with or

without intent to steal the vehicle.” Id. (quoting Cal. Veh.

Code § 10851(a)) (omissions in original and emphases

added). The court concluded that “a person can commit a

carjacking without necessarily committing an unlawful

taking of a vehicle” because carjacking requires “the intent

to deprive the driver of possession,” and the driver may or

may not be the owner. Id. (emphasis in original). The court

offered the following hypothetical to illustrate the difference

between the two crimes:

Joe knows that his neighbor Mary’s car has

been stolen and that she is offering a reward

14 USA V. OROZCO-OROZCO

for its return. If Joe spots an unfamiliar

person driving Mary’s car and orders that

person out at gunpoint and then drives off,

intending to return the car to Mary and secure

the reward, he would be guilty of carjacking

but not of an unlawful taking of a vehicle.

Id.

The court’s hypothetical makes plain that § 215

carjacking does not require generic theft’s specific intent to

steal. Indeed, in People v. Hill the California Supreme Court

expressly concluded that § 215 carjacking can be committed

against a passenger who has no possessory interest in the

vehicle. 3 P.3d 898, 903 (Cal. 2000) (“By extending

carjacking to include a taking from a passenger, even one

without a possessory interest (assuming the other elements

of the crime are present), the Legislature has made

carjacking more nearly a crime against the person than a

crime against property.”); see also People v. Ossman, No.

A097209, 2003 WL 204715, at *3 (Cal. Ct. App. Jan. 31,

2003) (unpublished) (“[T]he owner of a vehicle may consent

to another’s possession of the vehicle, and thereafter, the

owner, or someone at the owner’s behest, may through force

or fear take possession of the owner’s car and thereby

commit a carjacking.”).

The California courts’ descriptions of § 215’s elements

leave no doubt that California’s carjacking statute

criminalizes more conduct than a generic theft offense.

Intent to steal means intent to deprive someone who has a

superior possessory interest in property of that property. But

an individual can be convicted of violating California’s

carjacking statute even if they take a car from someone who

has an inferior possessory interest in the car—or none at all.

USA V. OROZCO-OROZCO 15

Section 215 is therefore overly broad within the meaning of

the Taylor analysis.

C.

The Supreme Court has been clear that for a statute to be

deemed broader than a generic offense, there must 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.” Gonzales, 549 U.S. at 193.

Section 215’s overbreadth is not merely hypothetical.

California courts have applied the statute in a wider swath of

circumstances than those in which the generic definition of

a theft offense would apply.

For example, in People v. Sinclair, the California Court

of Appeal affirmed the defendant’s § 215 carjacking

conviction where the defendant, acting on behalf of a car’s

jailed titleholder, used force to take possession of the car

from an unauthorized driver. No. C088135, 2020 WL

486847, at *1–4 (Cal. Ct. App. Jan. 23, 2020) (unpublished).

The conduct in Sinclair would not qualify as a generic theft

offense because the defendant lacked the specific intent to

steal. Sinclair is consistent with the Montoya court’s

explanation that a defendant can commit § 215 carjacking

against the current driver or passengers in a vehicle, even if

their possessory interest is inferior to that of the defendant.

See 94 P.3d at 1100; see also People v. Markbreiter, No.

D076914, 2021 WL 1621988, at *3–5 (Cal. Ct. App. Apr.

27, 2021) (unpublished) (affirming § 215 carjacking

conviction where defendant used force to stop a repossession

agent from towing defendant’s own car). These case

examples make clear that California courts in fact apply

§ 215 carjacking to sweep in more conduct than a generic

theft offense.

16 USA V. OROZCO-OROZCO

Justice Werdegar’s concurring opinion in Montoya

reinforces our conclusion that § 215 criminalizes more

conduct than a generic theft offense. Justice Werdegar

joined the Montoya majority but wrote separately to address

the defendant’s unavailing argument that carjacking requires

an intent to steal because § 215 requires a “felonious taking,”

and in People v. Tufunga, 987 P.2d 168 (Cal. 1999), the

California Supreme Court concluded that the words

“felonious taking” incorporated common-law intent to steal

into the robbery offense codified at California Penal Code

§ 211. Montoya, 94 P.3d at 1101–02 (Werdegar, J.,

concurring). The Montoya majority did not reach this

argument, but Justice Werdegar pointed out that the

majority’s reasoning necessarily rejected it. Montoya, 94

P.3d at 1102 (Werdegar, J., concurring) (“Obviously, if

defendant is right, the majority is wrong.”).

In Justice Werdegar’s view, the majority should have

expressly concluded that “the Legislature did not intend

simply to incorporate the narrow common law

understanding of ‘felonious taking’” into § 215. Id. at 1103.

Justice Werdegar pointed out that the text of § 215 uses the

word “possession” three times, and that § 215, which was

not enacted until 1993, “responds to a relatively modern,

urban problem,” while § 211 robbery dates to the mid-

nineteenth century. Id. at 1102–03. The California Court of

Appeal subsequently followed Justice Werdegar’s view that

the California legislature intended for the phrase “felonious

taking” to have different meanings in sections 211 and 215.

See People v. Cabrera, 152 Cal. App. 4th 695, 701–03

(2007) (holding that § 215 carjacking does not allow for a

claim-of-right defense because carjacking is not a crime

against ownership).

USA V. OROZCO-OROZCO 17

The jury instructions for sections 211 and 215 further

demonstrate the difference in criminal intent required by the

two statutes. The robbery instruction requires the

government to show that the defendant used force or fear to

take “property that was not (his/her) own” with the intent “to

deprive the owner of the property permanently” or for an

extended period of time. Cal. Crim. Jury Instruction No.

1600 (2023). In contrast, the carjacking instruction requires

the government to show that the defendant, whether or not

the defendant was the vehicle’s owner, used force or fear to

take a vehicle from “a person who possessed the vehicle or

was its passenger” with the intent to deprive that person of

possession permanently or temporarily. See Cal. Crim. Jury

Instruction No. 1650 (2023).

In sum, despite § 215’s use of the common-law phrase

“felonious taking,” carjacking in California does not require

a showing of intent to steal. Rather, § 215 requires only that

the defendant intend to permanently or temporarily deprive

the current driver or passengers of their possession of the

vehicle, by force or by fear. We are bound by the California

Supreme Court’s statement of the elements of § 215. See

Johnson, 559 U.S. at 138. We therefore hold that § 215 is

not a categorical match for a generic theft offense and thus

is not an aggravated felony under the INA. 7

7

We need not consider the “modified categorical approach” to decide

whether § 215 carjacking qualifies as a generic theft offense. The

modified categorical approach applies to “divisible statute[s]” that “set[]

out one or more elements of the offense in the alternative.” Descamps v.

United States, 570 U.S. 254, 257 (2013). For divisible statutes, courts

may “consult a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the

defendant’s prior conviction,” and then conduct the categorical analysis

with respect to the elements with which the defendant was convicted. Id.

18 USA V. OROZCO-OROZCO

D.

The Government argues that we should disregard the

California Supreme Court’s statements identifying the

elements of § 215 because we have previously held that

crimes that use the word “possession” rather than

“ownership” can qualify as generic theft offenses. See, e.g.,

Martinez-Hernandez, 932 F.3d at 1202. As explained above,

the focus on the words “ownership” and “possession” by

both Orozco and the Government obscures the relevant

inquiry. The import of the California Supreme Court’s

decision in Montoya is not that carjacking is merely a crime

against possession. Montoya explains that carjacking can be

committed against whomever the current driver or

passengers of a vehicle are, regardless of the current driver’s

or passengers’ possessory interests. Accordingly, in order to

convict a defendant of § 215 carjacking, the State need not

show that the defendant acted with the specific intent to

steal.

The Government also argues that our decisions in

Martinez-Hernandez and United States v. Velasquez-

Bosque, 601 F.3d 955 (9th Cir. 2010), superseded by

regulation as stated in United States v. Baldon, 956 F.3d

1115, 1125–26 (9th Cir. 2020), compel the conclusion that

§ 215 carjacking is a categorical match for a generic theft

offense. We disagree.

In Martinez-Hernandez, we held that robbery under

§ 211 of the California Penal Code is an aggravated felony

because it is a categorical match for a generic theft offense.

Section 215 identifies just one set of elements for the government to

satisfy and therefore is not a divisible statute. See Cal. Penal Code § 215;

Cal. Crim. Jury Instruction No. 1650.

USA V. OROZCO-OROZCO 19

932 F.3d at 1202. In so holding, we relied on our decision

in Alvarado-Pineda, 774 F.3d at 1202, where we held that

robbery under Washington law is a categorical match for a

generic theft offense. 932 F.3d at 1206. We also relied on

the California Supreme Court’s repeated holding that

“specific intent to steal is an essential element of § 211

robbery.” Id. (citing People v. Anderson, 252 P.3d 968, 972

(Cal. 2011); People v. Pollock, 89 P.3d 353, 367 (Cal. 2004);

People v. Lewis, 22 P.3d 392, 419 (Cal. 2001)).

The analysis for § 215 carjacking is different because the

California Supreme Court made clear in Montoya that § 215

carjacking can be committed without a specific intent to

steal. See 94 P.3d at 1100; see also id. at 1102 (Werdegar,

J., concurring). Because the California Supreme Court has

concluded that § 211 robbery and § 215 carjacking do not

share the same intent element, our conclusion that § 215 is

not a categorical match for a generic theft offense is

consistent with our decision in Martinez-Hernandez.

Velasquez-Bosque does not undermine our conclusion.

In Velasquez-Bosque, we held that § 215 carjacking

constituted a “crime of violence” under a previous version

of the United States Sentencing Guidelines because

carjacking was a categorical match for a combination of

robbery and extortion under the enumerated-offenses clause

of the Guideline’s “crime of violence” definition. 601 F.3d

at 957–59. We explained in Velasquez-Bosque that our

holding was “largely controlled by our decision in United

States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008),”

where we held that § 211 robbery was a crime of violence

under the Sentencing Guidelines. Id. at 958. We concluded

that Becerril-Lopez controlled because § 211 robbery and

§ 215 carjacking are “substantially similar” in “all material

respects.” Id. at 959. We reasoned that both crimes require:

20 USA V. OROZCO-OROZCO

“[1] taking personal property in the possession of another

person [2] from his or her immediate presence, [3] against

that person’s will, and [4] accomplished by means of force

or fear.” Id.

Velasquez-Bosque does not discuss the California

Supreme Court’s decision in Montoya, and it does not

address the differences between the criminal-intent element

in California’s robbery statute and the criminal-intent

element in California’s carjacking statute. Because

Velasquez-Bosque did not consider whether California’s

carjacking offense was a categorical match for a generic

theft offense, the differences between the criminal intent

necessary to prove robbery and the criminal intent necessary

to prove carjacking were not directly at issue and thus were

not among the material similarities we identified between

robbery and carjacking. See Sakamoto v. Duty Free

Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985)

(“[U]nstated assumptions on non-litigated issues are not

precedential holdings binding future decisions.”); e.g.,

Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (declining

to follow prior cases in which the issue at hand had not been

“squarely addressed”). In addition, “after the 2016

amendments to the Sentencing Guidelines,” § 215

carjacking is “no longer a categorical match for generic

robbery and extortion” and “Velasquez-Bosque’s holding to

the contrary is no longer good law.” Baldon, 956 F.3d at

1126. Accordingly, Velasquez-Bosque does not require that

§ 215 carjacking is a categorical match for a generic theft

offense.

E.

Because § 215 carjacking is not an aggravated felony

under the INA, Orozco’s 2013 final administrative order of

USA V. OROZCO-OROZCO 21

removal was defective. See Martinez, 786 F.3d at 1230. To

show that this defect was “fundamentally unfair” under

§ 1326(d)(3), Orozco must show that the defect prejudiced

him. See Alvarado-Pineda, 774 F.3d at 1201. Orozco must

also establish the first two elements of § 1326(d): that (1) he

has exhausted his administrative remedies; and (2) his

deportation proceedings unfairly deprived him of an

opportunity for judicial review. See United States v.

Palomar-Santiago, 593 U.S. 321, 329 (2021). The district

court denied Orozco’s motion to dismiss solely because, in

the district court’s view, he could not show a defect in his

underlying order of removal and thus could not satisfy

§ 1326(d)(3). The district court did not reach whether

Orozco satisfied § 1326(d)(1) or (2), or prejudice under

§ 1326(d)(3). In Palomar-Santiago, the Supreme Court

clarified that “each of the statutory requirements of

§ 1326(d) is mandatory.” Id. Palomar-Santiago abrogated

our prior caselaw that excused a defendant from satisfying

the requirements of § 1326(d)(1) and (2) if the conviction

that served as the predicate for the underlying final order of

removal was not a qualifying aggravated felony. Id. at 326

(citing United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir.

2017)).

Orozco argues that our decision in United States v.

Valdivia-Flores nevertheless requires us to conclude that he

has established all three elements of § 1326(d). See 876 F.3d

1201 (9th Cir. 2017), overruled on other grounds by Alfred,

64 F.4th 1025. Alternatively, he asks that we remand for the

district court to make further factual findings.

We decided Valdivia-Flores prior to the Supreme

Court’s decision in Palomar-Santiago. In Valdivia-Flores,

we held that the drug trafficking conviction underlying a

nonresident alien’s final order of removal did not qualify as

22 USA V. OROZCO-OROZCO

an aggravated felony. Id. at 1210. We also concluded that

the defendant satisfied § 1326(d)(1) and (2). Id. at 1205–06.

But there, the record and arguments established that the

defendant’s waiver of judicial review of the final removal

order was not considered and intelligent. See id. at 1206. In

Orozco’s case, the district court expressly declined to make

any findings of fact as to § 1326(d)(1) and (2), and the

Government does not concede that Orozco has satisfied

§ 1326(d)(1) and (2).

On appeal, we cannot make the factual findings

necessary to determine whether Orozco’s waiver of judicial

review was considered and intelligent. See United States v.

Lujan-Castro, 602 F.2d 877, 878 (9th Cir. 1979) (per

curiam) (“The district court’s conclusion that the waiver was

knowingly and intelligently executed is a finding of fact that

may not be disturbed unless clearly erroneous.”). The

narrow circumstances that allow us to consider factual issues

related to the waiver inquiry in the first instance are not

present here. See United States v. Cisneros-Rodriguez, 813

F.3d 748, 757 (9th Cir. 2015) (recognizing that “[w]e would

ordinarily remand to the district court” but declining to do so

because the district judge had retired, there was a transcript

of the relevant testimony, and it was unlikely a new district

judge would be able to conduct another evidentiary hearing).

We therefore remand for the district court to consider

whether Orozco satisfied all three prongs of § 1326(d).

IV.

We affirm the district court’s order denying Orozco’s

motion to dismiss his indictment on equal protection

grounds, reverse the district court’s order denying Orozco’s

motion to dismiss his 8 U.S.C. § 1326 charge under

USA V. OROZCO-OROZCO 23

§ 1326(d), and remand for further proceedings consistent

with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.