UNITED STATES of America, Plaintiff-Appellant, v. Hector Rene GOMEZ-RODRIGUEZ, Defendant-Appellee

dissenting:

I would like to concur in the opinion because I believe that it is a correct reading of the relevant statutes. However, I do not agree that this opinion can be squared with United States v. Ullyses-Salazar, 28 F.3d 932, 938 (9th Cir.1994). Whether United States v. Ullyses-Salazar was right or wrong *1155 in its expansion of the holding in United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir.1994), (which construed the 1988 statute rather than the 1990 statute now before this court), Ullyses-Salazar is the law of the circuit and should be followed, until an en banc court considers the conflict which I believe exists, and decides which law the district courts should follow in these recurring cases of returning deportees with aggravated felony convictions acquired prior to November 29,1990.

Opinion by Judge PREGERSON; Dissent by Judge GOODWIN.

The United States appeals the district court’s dismissal of an indictment charging Hector Rene Gomez-Rodriguez (“Gomez”) with illegal reentry after deportation and conviction of an “aggravated felony” under 8 U.S.C. § 1326 (b)(2) of the Immigration and Nationality Act. The district court dismissed the indictment because Gomez’s “aggravated felony” conviction occurred before November 29, 1990, the date on which Congress added crimes of violence to the definition of “aggravated felony” under 8 U.S.C. § 1101 (a)(43). Immigration Act of 1990 (the “1990 Amendment”), Pub.L. No. 101-649, 104 Stat. 4978 (1990). The 1990 Amendment contained an effective date provision, which provides, in relevant part, that the “Amendments ... shall apply to offenses committed on or after the date of the enactment.” Id., § 501(b), 104 Stat. 5048 . The 1990 Amendment was enacted on November 29,1990.

In this appeal, we address whether the district court was correct in construing the effective date provision in the 1990 Amendment as barring the retroactive application of the expanded definition of “aggravated felony” to convictions for crimes of violence…

77 F.3d 1150 96 Cal. Daily Op. Serv. 1135 , 96 Daily Journal D.A.R. 1927 UNITED STATES of America, Plaintiff-Appellant, v. Hector Rene GOMEZ-RODRIGUEZ, Defendant-Appellee. No. 95-10114. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 8, 1996. Decided Feb. 21, 1996. Appeal from the United States District Court for the Northern District of California. Nandor J. Vadas, Assistant United States Attorney, San Francisco, California, for plaintiff/appellant. George J. Cotsirilos, Jr., Cotsirilos & Campisano, San Francisco, California, for defendant/appellee. Before: LAY, * GOODWIN, and PREGERSON, Circuit Judges. Opinion by Judge PREGERSON; Dissent by Judge GOODWIN. PREGERSON, Circuit Judge: 1 The United States appeals the district court's dismissal of an indictment charging Hector Rene Gomez-Rodriguez ("Gomez") with illegal reentry after deportation and conviction of an "aggravated felony" under 8 U.S.C. § 1326 (b)(2) of the Immigration and Nationality Act. The district court dismissed the indictment because Gomez's "aggravated felony" conviction occurred before November 29, 1990, the date on which Congress added crimes of violence to the definition of…