NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50454

Plaintiff-Appellee, D.C. No. 3:14-cr-02957-BAS-1 v.

JOSE GUILLERMO PANIAGUA- MEMORANDUM *

PANIAGUA,

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

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and MARQUEZ,** District Judge.

Appellant Jose Paniagua-Paniagua appeals from a conviction and sentence

for illegal reentry in violation of 8 U.S.C. § 1326. He argues the district court

erred by denying his motion under § 1326(d) to dismiss the illegal reentry charge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Rosemary Marquez, United States District Judge for the District of Arizona, sitting by designation. We review de novo and affirm. United States v. Reyes-Bonilla, 671 F.3d 1036,

1042 (9th Cir. 2012).

To successfully challenge an underlying removal order, an alien must show

(among other things) that “entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d)(3). “An underlying order is ‘fundamentally unfair’ if (1) a defendant’s

due process rights were violated by defects in his underlying deportation

proceeding, and (2) he suffered prejudice as a result of the defects.” United States

v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014) (citing United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)).

Appellant was convicted in 2007 of possession of methamphetamine with

intent to deliver it, in violation of Wash. Rev. Code § 69.50.401(2)(b). During

Appellant’s 2008 deportation proceedings, Appellant confirmed that he was

convicted under Wash. Rev. Code § 69.50.401. The immigration judge did not

advise Appellant of potential eligibility for relief from removal. Appellant was

removed to Mexico as an aggravated felon. Appellant subsequently reentered the

United States, where he was apprehended in September 2014. Following a bench

trial on April 28, 2015, Appellant was found guilty of illegal reentry.

Appellant contends that his Washington conviction is not an aggravated

felony because Wash. Rev. Code § 69.50.401 is categorically overbroad. He

further contends that the modified categorical approach may not be utilized to

2 15-50454 determine whether he was convicted of an aggravated felony because Wash. Rev.

Code § 69.50.401 is indivisible. Therefore, he argues, his collateral challenge must

succeed because the immigration judge violated his due process rights by failing to

advise him that he was eligible for voluntary departure.

We agree with Appellant that Washington’s definition of aiding and abetting

liability is broader than the generic federal definition and that the implicit nature of

aiding and abetting liability in every criminal charge renders Wash. Rev. Code §

69.50.401 categorically overbroad. United States v. Valdivia-Flores, No. 15-

50384, 2017 WL 6044232 (9th Cir. Dec. 7, 2017). We also agree that Wash. Rev.

Code § 69.50.401 is indivisible, thus precluding application of the modified

categorical approach. Id.

An immigration judge, however, “must provide accurate information

regarding an alien’s eligibility for relief ‘under the applicable law at the time of his

deportation hearing.’” United States v. Vidal-Mendoza, 705 F.3d 1012, 1017 (9th

Cir. 2013) (quoting United States v. Lopez-Velasquez, 629 F.3d 894, 897 (9th Cir.

2010)). At the time of Appellant’s 2008 deportation proceedings, convictions

under Wash. Rev. Code § 69.50.401 were treated as aggravated felonies. See

United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th Cir. 2000), overruled

on other grounds as recognized by United States v. Figueroa-Ocampo, 494 F.3d

1211, 1216 (9th Cir. 2007); United States v. Verduzco-Padilla, 155 Fed. App’x 982

3 15-50454 (9th Cir. 2005) (mem.). Ninth Circuit law at the time also permitted application of

the modified categorical approach for overbroad statutes so that the documents

underlying Appellant’s Washington drug-trafficking conviction could have been

used to confirm that he was convicted as a principal and not as an accomplice. See

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007), overruled by

United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011). Appellant

was properly found to be an aggravated felon under the law controlling at the time;

it is immaterial that post-removal changes in the law would have altered that

conclusion. See Vidal-Mendoza, 705 F.3d at 1021 & n.9 (holding noncitizen was

properly found ineligible for relief under then-controlling law, although post-

removal changes to law would have made noncitizen eligible if applied

retroactively); United States v. Guzman-Ibarez, 792 F.3d 1094, 1101 (9th Cir.

2015) (explaining that immigration judges need not predict sharp changes in

substantive law).

As an aggravated felon under the law controlling at the time of his

deportation proceedings, Appellant was statutorily ineligible for voluntary

departure under 8 U.S.C. § 1229c. Therefore, he was not prejudiced by the

immigration judge’s failure to advise him of that relief. United States v. Bustos-

Ochoa, 704 F.3d 1053, 1057 (9th Cir. 2012) (“[A]n alien who is statutorily barred

from obtaining relief from removal cannot be prejudiced by an [immigration

4 15-50454 judge’s] failure to inform him about the possibility of applying for such relief.”).

Consequently, he has not shown that the deportation proceedings were

fundamentally unfair, and his motion to dismiss was properly denied.

AFFIRMED.

5 15-50454 U.S. v. Paniagua-Paniagua, Case No. 15-50454 FILED RAWLINSON, Circuit Judge, concurring in the result: JAN 29 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that the district court decision denying defendant

Jose Paniagua-Paniagua’s motion to suppress the indictment should be affirmed.

However, I expressly disavow the majority’s conclusion and reasoning regarding

the overbreadth of Washington Revised Code § 69.50.401, for the reasons

explained in my dissent in United States v. Valdivia-Flores, 876 F.3d 1201, 1211-

14 (9th Cir. 2017).

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