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UNITED STATES of America, Plaintiff-Appellee, v. Juan HERON-SALINAS, Defendant-Appellant

United States Court of Appeals for the Ninth Circuit2009-05-20No. No. 08-50276
566 F.3d 898

Summary

Holding. A conviction for assault with a firearm under California Penal Code section 245(a)(2) is categorically a crime of violence under 18 U.S.C. § 16 and an aggravated felony under immigration law. The district court's denial of the motion to dismiss was affirmed.

Juan Heron-Salinas was indicted for unlawful reentry into the United States after deportation. He moved to dismiss the indictment, arguing that his prior deportation was invalid because his underlying conviction for assault with a firearm under California law did not qualify as a crime of violence under federal immigration statutes. The appellate court rejected this argument, holding that assault with a firearm categorically satisfies the federal definition of a crime of violence.

The court analyzed the statutory elements of both California assault with a firearm and the federal crime of violence standard. It concluded that the intentional act of attempting to commit violent injury with a firearm necessarily involves the use or threatened use of physical force, meeting the statutory definition. The presence of a firearm ensures that actual force is either attempted, threatened, or presents a substantial risk of being used. The court also determined that California's mens rea requirement for assault aligns with the federal standard.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether assault with a firearm qualifies as a 'crime of violence' under federal immigration law
  • Whether California Penal Code section 245(a)(2) contains sufficient mens rea
  • Whether the use of a firearm satisfies the physical force requirement of the crime of violence statute

Procedural posture

Heron-Salinas appealed the district court's denial of his motion to dismiss an indictment for reentry after deportation, challenging whether his prior conviction constituted a crime of violence under immigration law.

Authorities cited

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Opinion

majority opinion

OPINION

PER CURIAM:

Juan Heron-Salinas appeals the district court’s denial of his motion to dismiss his indictment for attempted entry into the United States after deportation, in violation of 8 U.S.C. § 1326. Heron-Salinas claims that his underlying deportation was invalid under 8 U.S.C. § 1326(d) because his conviction for assault with a firearm under California Penal Code section 245(a)(2) is not a “crime of violence,” as that term is defined in 18 U.S.C. § 16.

We have previously held that aiding and abetting assault with a deadly weapon in violation of California Penal Code section 245(a)(1) is categorically a crime of violence under 18 U.S.C. § 16, and that an alien convicted of that crime is an aggravated felon under . 8 U.S.C. § 1101(a)(43)(F). Ortiz-Magana v. Mukasey, 542 F.3d 653, 654 (9th Cir.2008); see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir.2001).

California Penal Code section 245(a)(1) and 245(a)(2) proscribe the same conduct, the only difference being the type of weapon involved. Today we hold that a conviction for assault with a firearm under California Penal Code section 245(a)(2) is categorically a “crime of violence” and an “aggravated felony” for immigration purposes.

Heron-Salinas argues that California Penal Code section 245 does not contain the requisite mens rea or use of force to qualify as a crime of violence under section 16. Heron-Salinas is incorrect. Section 16 defines a “crime of violence” as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16. Under a plain reading of the statute, the elements of assault with a firearm — an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another with a firearm — satisfy the requirements of section 16(a) and (b). See CaLPenal Code §§ 240, 245(a)(2).

In California, assault “requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197, 204 (2001). This definition closely tracks the language in § 16(b). Attempting to commit a violent injury on another person with a firearm “naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing an offense.” Leocal v. Ashcroft, 543 U.S. 1, 10-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The mens rea requirement is met.

Heron-Salinas next argues that section 245 is not a crime of violence because, in California, “assault includes an unconsented touching of the victim,” rather than actual force, as required by section 16. People v. Rosen, 56 Cal.Rptr.3d 444, 454 (2007). Today we do not address the broader question of whether all forms of assault under the California Penal Code are crimes of violence. The use of a firearm in the commission of the crime is enough to demonstrate that actual force was attempted or threatened under section 16(a). Similarly, one who assaults another by means of a firearm necessarily disregards the substantial risk that in the course of committing the offense he might intentionally use actual physical force against the victim under section 16(b).

Assault with a firearm naturally falls within the category, “crime of violence,” under the “ordinary meaning” of that term. See Leocal, 543 U.S. at 11, 125 S.Ct. 377. Heron-Salinas was convicted of a “crime of violence” under 18 U.S.C. § 16.

Accordingly, the conviction is AFFIRMED.