CASE LAW-CRIME AND DEPORTATION
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA RENTERIA-MORALES, ü
Petitioner, No. 04-74742
v. ý Agency No. MICHAEL B. MUKASEY, Attorney A92-202-968
General,
Respondent. þ
MARIA JESUS RIVERA DE ALVARADO, ü
Petitioner, No. 06-73283
v. ý Agency No. MICHAEL B. MUKASEY, Attorney A17-970-844
General, OPINION
Respondent. þ
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 9, 2007—San Francisco, California
Filed July 10, 2008
Before: Sidney R. Thomas, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Tallman
8393
COUNSEL
Irma Renteria-Morales v. Mukasey , 04-74742:
Martin R. Guajardo (brief) and Marty Robles (argued), Law
Office of Martin R. Guajardo, San Francisco, California, for
the petitioner.
Marshall Tamor Golding (brief) and Ann Carroll Varnon
(argued), United States Department of Justice, Civil Division,
Washington, D.C., for the respondent.
Maria Jesus Rivera De Alvarado v. Mukasey , 06-73283:
Carol Dvorkin, San Francisco, California, for the petitioner.
David Schor, United States Department of Justice, Civil Division,
Washington, D.C., for the respondent.
RENTERIA-MORALES v. MUKASEY 8397
OPINION
IKUTA, Circuit Judge:
The two petitions for review consolidated in this opinion1
raise the question whether a conviction for failure to appear
in court in violation of 18 U.S.C. § 31462 is categorically an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(S)3 or
8 U.S.C. § 1101(a)(43)(T).4 Applying the categorical
approach prescribed by Taylor v. United States, 495 U.S. 575,
600-02 (1990), we conclude that a violation of § 3146 is not
categorically an aggravated felony under either provision.
Applying the modified categorical approach to the two petitions
before us, we determine that the prior conviction of one
petitioner qualifies as an aggravated felony and the prior conviction
of the other petitioner does not.
I
Irma Renteria Morales (Renteria) and Maria Jesus Rivera
1 These petitions are ordered consolidated for purposes of disposition.
2 18 U.S.C. § 3146 states, in pertinent part:
(a) Offense.— Whoever, having been released under this chapter
knowingly—
(1) fails to appear before a court as required by the conditions
of release; or
(2) fails to surrender for service of sentence pursuant to a
court order;
shall be punished as provided in subsection (b) of this section.
3 Under 8 U.S.C. § 1101(a)(43)(S), the definition of aggravated felony
includes "an offense relating to obstruction of justice, perjury or subornation
of perjury, or bribery of a witness, for which the term of imprisonment
is at least one year."
4 Under 8 U.S.C. § 1101(a)(43)(T), the definition of aggravated felony
includes "an offense relating to a failure to appear before a court pursuant
to a court order to answer to or dispose of a charge of a felony for which
a sentence of 2 years' imprisonment or more may be imposed."
8398 RENTERIA-MORALES v. MUKASEY
de Alvarado (Rivera), both natives and citizens of Mexico,
petition for review of the affirmance by the Board of Immigration
Appeals (BIA) of a final order of removal.
A
Renteria became a lawful permanent resident of the United
States in 1990. On January 13, 1998, Renteria pleaded guilty
to violation of 18 U.S.C. § 3146. The judgment entered by the
district court stated: "The defendant is convicted of the offense(
s) of: violating Title 18, United States Code, Sections
3146, Bail Jumping, as charged in the Information filed herein."
The information stated:
That on or about July 20, 1992, at or near Tucson,
in the District of Arizona, IRMA LINDA
RENTERIA-MORALES, after having been released
on or about March 2, 1992, pursuant to Chapter 207
of Title 18 of the United States Code, in connection
with a charge of possession with intent to distribute
marijuana, in violation of Title 21 United States
Code § 841(a)(1), an offense punishable by imprisonment
for a term of not more than five (5) years,
and having been directed to appear before the District
Court of Arizona at Tucson, Arizona, on July
20, 1992, wilfully did fail to appear as required;
All in violation of Title 18 United States Code
Section 3146.
On March 3, 1998, the government filed a notice to appear
alleging that Renteria was subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii)5 due to her violation of 18 U.S.C. § 3146.
The government claimed that a violation of § 3146 constituted
an aggravated felony for purposes of 8 U.S.C.
5 8 U.S.C. § 1227(a)(2)(A)(iii) states: "Any alien who is convicted of an
aggravated felony at any time after admission is deportable."
RENTERIA-MORALES v. MUKASEY 8399
§ 1101(a)(43)(T). Over Renteria's objections, the immigration
judge (IJ) agreed with the government's interpretation of
§ 1101(a)(43)(T) and pretermitted Renteria's application for
cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Renteria
appealed to the BIA, which affirmed the IJ's determination
without an opinion. Renteria timely filed a petition for review
to this court.
B
Rivera became a lawful permanent resident of the United
States in 1967. In 1973, she was indicted by a grand jury for
conspiracy to illegally import heroin, illegal importation of
heroin, conspiracy to possess a controlled substance with
intent to distribute, and possession of a controlled substance
with intent to distribute. Rivera pleaded not guilty and was
released on bail. While on bail, she fled the United States. The
government filed a second indictment charging Rivera with
violation of 18 U.S.C. § 31506 in August 1973. In 2004,
Rivera was arrested while crossing the border from Mexico
into the United States based on an outstanding warrant for
failure to appear. Rivera pleaded guilty to a violation of 18
U.S.C. § 3146, and the government dismissed the drug
charges. Rivera was sentenced to a $100.00 assessment and a
sentence of twelve months and one day.
In 2005, the government filed a notice to appear alleging
that Rivera was subject to removal on two grounds: (1) under
8 U.S.C. § 1182(a)(2)(A)(i)(I) for being an alien who committed
a crime of moral turpitude, and (2) under 8 U.S.C.
§ 1182(a)(2)(C), for being an alien who "the Attorney General
knows or has reason to believe . . . is or has been a knowing
aider, abettor, assister, conspirator, or colluder with others in
the illicit trafficking in any such controlled . . . substance." 8
6 18 U.S.C. § 3150 was repealed by the Bail Reform Act of 1984, Pub.
L. No. 98-473, 98 Stat. 1976 (1984). 18 U.S.C. § 3146 is the current bailjumping
statute.
8400 RENTERIA-MORALES v. MUKASEY
U.S.C. § 1182(a)(2)(C)(i). On November 14, 2005, Rivera
filed an application for cancellation of removal.
The IJ sustained the two charges of removability and pretermitted
and denied the application for cancellation of
removal on the ground that Rivera's conviction under 18
U.S.C. § 3146 qualified as an aggravated felony under 8
U.S.C. § 1101(a)(43)(S) as "an offense relating to obstruction
of justice." See 8 U.S.C. § 1229b(a)(3).
Rivera appealed to the BIA challenging only the denial of
her application for cancellation of removal. The BIA affirmed
the IJ in a reasoned opinion, agreeing "that the respondent
was convicted of an aggravated felony because the offense of
bail jumping falls within the definition of an obstruction of
justice crime under section 101(a)(43)(S) of the Immigration
and Nationality Act." Rivera timely filed a petition for review
to this court.
We have jurisdiction under 8 U.S.C. § 1252(a) to review
the legal question whether a conviction underlying an order of
removal or the denial of relief constitutes an aggravated felony.
See Li v. Ashcroft , 389 F.3d 892, 895 (9th Cir. 2004). If
the BIA conducted "an independent review . . . we review the
BIA's decision and not that of the IJ." Sinotes-Cruz v. Gonzales,
468 F.3d 1190, 1194 (9th Cir. 2006). However, where
the BIA summarily affirms the holding of the IJ without opinion,
we review the IJ's decision as the final agency determination.
See Falcon Carriche v. Ashcroft , 350 F.3d 845, 849 (9th
Cir. 2003).
II
[1] In analyzing Renteria's petition, we must determine
whether a conviction for failure to appear in court in violation
of 18 U.S.C. § 3146 constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(T), which defines aggravated felony to
include certain offenses relating to a failure to appear. In ana-
RENTERIA-MORALES v. MUKASEY 8401
lyzing Rivera's petition, we must determine whether a conviction
for violating § 3146 constitutes an aggravated felony
under § 1101(a)(43)(S), which defines aggravated felony to
include certain offenses relating to obstruction of justice. If a
violation of § 3146 meets the definition set forth in
§ 1101(a)(43)(S) or (T), it counts as an aggravated felony for
purposes of making the alien removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). It will also count as an aggravated felony
for purposes of rendering an alien ineligible for cancellation
of removal pursuant to 8 U.S.C. § 1229b(a)(3).
To determine whether a conviction under § 3146 constitutes
an aggravated felony under § 1101(a)(43)(S) or (T), we
apply the categorical approach set forth in Taylor, 495 U.S.
575, to the Immigration and Nationality Act (INA). See
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir.
2006) (en banc). Using this approach, we determine what
Congress meant by "obstruction of justice" or "failure to
appear" in § 1101(a)(43)(S) and (T) respectively by discerning
the generic federal definition of these crimes. Because
§ 1101(a)(43) is part of the INA, we must defer to the BIA's
articulation of the generic federal definition "if the statute is
silent or ambiguous with respect to the specific issue before
the agency and the BIA's interpretation is 'based on a permissible
construction of the statute.' " Parrilla v. Gonzales, 414
F.3d 1038, 1041 (9th Cir. 2005) (quoting INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999)). We accord Chevron deference
where there is "binding agency precedent on-point
(either in the form of a regulation or a published BIA case)."
Kharana v. Gonzales , 487 F.3d 1280, 1283 n.4 (9th Cir.
2007); see Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-44 (1984).
After determining the elements of the generic crimes listed
in § 1101(a)(43) (S) and (T), the second step in the Taylor
analysis is to identify the elements of the specific crime of
conviction, in this case § 3146. We do not defer to the BIA's
interpretations of state law or provisions of the federal crimi-
8402 RENTERIA-MORALES v. MUKASEY
nal code. Parrilla, 414 F.3d at 1041. Rather, we review de
novo whether the specific crime of conviction meets the
INA's definition of an aggravated felony. Li, 389 F.3d at 895;
Randhawa v. Ashcroft , 298 F.3d 1148, 1151 (9th Cir. 2002).
If the elements of the specific crime of conviction are narrower
than or the same as the elements of the generic crime,
then the specific crime of conviction categorically counts as
an offense listed in § 1101(a)(43). See Fernandez-Ruiz, 466
F.3d at 1125.
If the elements of the specific crime of conviction are
broader than the elements of the generic crime listed in the
INA, we may "go beyond the mere fact of conviction" and
consider whether the petitioner was necessarily convicted of
all the elements of the generic crime. Taylor, 495 U.S. at 602.
In making this determination, the court is to "conduct a limited
examination of documents in the record of conviction."
Ferreira v. Ashcroft , 390 F.3d 1091, 1095 (9th Cir. 2004)
(internal quotation marks omitted). Where the defendant
pleaded guilty to the offense, the examination of the record is
"limited to the terms of the charging document, the terms of
a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial
record of this information." Shepard v. United States, 544
U.S. 13, 26 (2005). "If the record of conviction does not
establish that the offense the petitioner committed qualifies as
an aggravated felony, the government has not met its burden
of proving that the defendant committed an aggravated felony."
Ferreira , 390 F.3d at 1095.
Based on this framework, we will consider each appeal in
turn.
III
We first turn to Renteria's argument that her conviction for
failure to appear under 18 U.S.C. § 3146 does not constitute
an aggravated felony under 8 U.S.C. § 1101(a)(43)(T).
RENTERIA-MORALES v. MUKASEY 8403
[2] As noted above, our first step under Taylor is to determine
the elements of the generic federal crime. In this case,
the elements of the generic federal crime are clearly set out
in § 1101(a)(43)(T) itself. It includes any offense "relating to"
the following elements: (1) a failure to appear before a court;
(2) pursuant to a court order; (3) to answer to or dispose of
a charge of a felony; (4) which may be subject to a sentence
of two years' imprisonment or more. We have not found, nor
has the government cited, any precedential BIA decision providing
further interpretation of this generic federal crime.
We next turn to the specific crime of conviction to determine
whether the elements of § 3146 are narrower than or the
same as the elements of the generic crime, § 1101(a)(43)(T).
Section 3146 provides, in pertinent part:
(a) Offense.—Whoever, having been released under
this chapter knowingly—
(1) fails to appear before a court as required
by the conditions of release; or
(2) fails to surrender for service of sentence
pursuant to a court order;
shall be punished as provided in subsection (b) of
this section.
(b) Punishment.—(1) The punishment for an offense
under this section is—
(A) if the person was released in connection
with a charge of, or while awaiting sentence,
surrender for service of sentence, or
appeal or certiorari after conviction for—
(i) an offense punishable by death, life
imprisonment, or imprisonment for a
8404 RENTERIA-MORALES v. MUKASEY
term of 15 years or more, a fine under
this title or imprisonment for not more
than ten years, or both;
(ii) an offense punishable by imprisonment
for a term of five years or more, a
fine under this title or imprisonment for
not more than five years, or both;
(iii) any other felony, a fine under this
title or imprisonment for not more than
two years, or both; or
(iv) a misdemeanor, a fine under this title
or imprisonment for not more than one
year, or both; and
(B) if the person was released for appearance
as a material witness, a fine under this
chapter or imprisonment for not more than
one year, or both.
[3] Although § 3146 includes all the elements of the
generic crime, we conclude that the elements of § 3146 are
broader than the elements of § 1101(a)(43)(T). For example,
a necessary element of an offense included in
§ 1101(a)(43)(T) is that the defendant must have failed to
appear in connection with a felony for which a sentence of
two years' imprisonment or more could be imposed. However,
under § 3146, the defendant could have failed to appear
in connection with a misdemeanor, see 18 U.S.C.
§ 3146(b)(1)(A)(iv), or failed to appear as a material witness,
see § 3146(b)(1)(B). Therefore, a violation of § 3146 is not
categorically an aggravated felony for purposes of
§ 1101(a)(43)(T).
[4] We must therefore apply the modified categorical
approach to determine if the petitioner was necessarily con-
RENTERIA-MORALES v. MUKASEY 8405
victed of all the elements of § 1101(a)(43)(T). In making this
determination, we may review the judgment and the charging
document (the information) contained in Renteria's record of
conviction. See Shepard, 544 U.S. at 26; see also Ferreira,
390 F.3d at 1095. It is undisputed that these are the only documents
in Renteria's record that are cognizable for purposes of
our analysis. As noted above, the judgment states only that
Renteria pleaded guilty to violating "Title 18, United States
Code, Sections 3146, Bail Jumping, as charged in the Information
filed herein." The information provides that Renteria
was released "in connection with a charge of possession with
intent to distribute marijuana," an offense punishable by five
years' imprisonment, and "having been directed to appear
before the District Court of Arizona at Tucson, Arizona, on
July 20, 1992, wilfully did fail to appear as required."
According to Renteria, the record does not establish that
she was necessarily convicted of the second element of
§ 1101(a)(43)(T) (i.e., that she failed to appear before a court
"pursuant to a court order") or the third element (i.e., that she
failed to appear "to answer to or dispose of a charge of a felony").
7 First, Renteria notes that the information charges Renteria
with failure to appear as "directed," and does not
mention a court order. Renteria argues that § 3146(a)(1) (prohibiting
the failure to appear "as required by the conditions of
release") would allow the government to obtain a conviction
for violation of § 3146 without proving that the offender had
violated a court order. To support this interpretation, Renteria
notes that Congress chose to use the term "court order" in
§ 3146(a)(2) (prohibiting the failure to surrender for service
of sentence "pursuant to a court order"), but did not use that
term in § 3146(a)(1), which raises the inference that Congress
intended § 3146(a)(1) to be broader than § 3146(a)(2).
7 The record does establish that Renteria was necessarily convicted of
the first and fourth element of § 1101(a)(43)(T) (i.e., she failed to appear
before a court, and the underlying offense was punishable by a sentence
of two years' imprisonment or more). Renteria does not dispute this conclusion.
8406 RENTERIA-MORALES v. MUKASEY
Second, Renteria notes that the information does not establish
that she was convicted of a failure to appear "to answer
to or dispose of a charge," the third element of
§ 1101(a)(43)(T). Renteria argues that she could have been
convicted for failing to appear "for service of sentence," as
contemplated in § 3146(a)(2), or for failing to appear as a
material witness, as contemplated in § 3146(b)(1)(B).
The government contends that it is reasonable to infer from
the information and the statute of conviction that Renteria
failed to appear before a court "pursuant to a court order," and
failed to appear "to answer to or dispose of a charge of a felony."
With respect to the "court order" element, the government
asserts that only a judicial officer has authority to direct
Renteria to appear, and the judicial officer's direction would
be a court order. With respect to the second element, the government
notes that the information did not expressly allege
that Renteria's conviction was for failing to appear for service
of a sentence or as a material witness. From this silence, the
government argues, we can reasonably infer that Renteria's
conviction under § 3146 was to answer to or dispose of a
charge. The government concludes, therefore, that the record
does establish that Renteria was convicted of the second and
fourth elements of § 1101(a)(43)(T).
[5] Although the inferences suggested by the government
may be reasonable, the government has not established that
such inferences are necessary. On their face, the judicially
noticeable documents do not establish that Renteria was under
a court order or that she was ordered to appear to answer to
or dispose of a charge. The government has not established
that the phrase "having been directed to appear" in the information
necessarily means that a court had issued an order.
Nor has the government established that the phrase "released
. . . in connection with a charge" of a substantive crime necessarily
means that the person directed to appear was charged
with that crime, rather than being a material witness to that
crime.
RENTERIA-MORALES v. MUKASEY 8407
[6] The dissent points out that under 18 U.S.C. § 3142,
judicial officers have authority to order the release of pretrial
detainees, subject to certain conditions. The dissent reasons
that Renteria was probably subject to such a court order,
which would likely order her to appear before the court at the
appropriate time. Again, such inferences are reasonable, but
are not necessary. The record does not establish that Renteria
was a pretrial detainee released pursuant to § 3142, nor that
she was under a court order to make an appearance.
[7] Under the modified categorical approach, the government
must establish that the prior conviction necessarily
involved, and the allowable documents necessarily established,
facts equating to the generic crime. See Shepard, 544
U.S. at 24; see also Sandoval-Lua v. Gonzales, 499 F.3d
1121, 1131 (9th Cir. 2007) ("[T]he Supreme Court's holdings
in Taylor and Shepard . . . both stress that a predicate conviction
qualifies as a generic crime under the modified categorical
approach only if the record of conviction shows the jury
'necessarily' found all of the generic elements, or the defendant
'necessarily' admitted all of the generic elements in a
plea." (citations omitted)). Therefore, on the present record,
we cannot say with certainty that Renteria was convicted of
all the elements of § 1101(a)(46)(T). "If the record of conviction
does not establish that the offense the petitioner committed
qualifies as an aggravated felony, the government has not
met its burden of proving that the defendant committed an
aggravated felony." Ferreira, 390 F.3d at 1095. The government's
interpretation of the judgment and information are
inadequate to carry its burden of establishing that Renteria
was convicted of all the elements of the generic crime
described in § 1101(a)(46)(T). We therefore grant Renteria's
petition for review.
IV
[8] Next we consider Rivera's argument that her conviction
for failure to appear under 18 U.S.C. § 3146 does not consti-
8408 RENTERIA-MORALES v. MUKASEY
tute a conviction for "obstruction of justice" under 8 U.S.C.
§ 1101(a)(43)(S) as charged by the government. A conviction
constitutes an aggravated felony under § 1101(a)(43)(S) if it
is "an offense relating to obstruction of justice . . . for which
the term of imprisonment is at least one year."
[9] Following the categorical approach prescribed by Taylor,
we must first determine the generic definition of obstruction
of justice. See Taylor, 495 U.S. at 598-99. Unlike
§ 1101(a)(43)(T), § 1101(a)(43)(S) does not clearly set forth
the elements of the generic federal crime. Because the INA
does not define the phrase "offense relating to obstruction of
justice," we must determine whether there is any "binding
agency precedent on-point" which does define that phrase.
Kharana , 487 F.3d at 1283 n.4; see also Parrilla, 414 F.3d at
1041 (internal quotation marks omitted). As acknowledged by
the government and Rivera, the BIA has interpreted the elements
of a generic obstruction of justice offense under
§ 1101(a)(43)(S) in a precedential decision, In re Espinoza-
Gonzalez, 22 I. & N. Dec. 889 (BIA 1999). Based on its
review of the crimes listed in chapter 73 of title 18 of the U.S.
Code, entitled "Obstruction of Justice," and on the guidance
provided by the Supreme Court in United States v. Aguilar,
515 U.S. 593 (1995) (analyzing the elements of 18 U.S.C.
§ 1503), the BIA articulated both an actus reus and mens rea
element of the generic definition of such crimes for purposes
of § 1101(a)(43)(S). Espinoza-Gonzalez, 22 I. & N. Dec. at
892-93. First, the BIA held that obstruction of justice crimes
include "either active interference with proceedings of a tribunal
or investigation, or action or threat of action against those
who would cooperate in the process of justice." Id. at 893.
Second, the BIA held that such crimes include an intent element,
defined as a "specific intent to interfere with the process
of justice." Id.
In considering the BIA's construction of § 1101(a)(43)(S),
a statute it administers, we must comply with the principles
of deference articulated in Chevron and uphold the BIA's def-
RENTERIA-MORALES v. MUKASEY 8409
inition of "obstruction of justice" offenses if it " 'is based on
a permissible construction of the statute.' " Aguirre-Aguirre,
526 U.S. at 424 (quoting Chevron, 467 U.S. at 843). Here the
BIA acted reasonably in deriving the definition of "obstruction
of justice" for purposes of § 1101(a)(43)(S) from the
body of federal statutes imposing criminal penalties on
obstruction of justice offenses. See Parrilla, 414 F.3d at 1041.
Accordingly, in determining whether the specific crime of
conviction is an obstruction of justice offense for purposes of
§ 1101(a)(43)(S), we rely on the BIA's definition.8
We now turn to Rivera's specific crime of conviction. In
this case, the question is whether all the elements of § 3146,
namely, being released and knowingly failing to appear
before a court as required by the conditions of release or failing
to surrender for service of sentence pursuant to a court
order, are included in § 1101(a)(43)(S). See Taylor, 495 U.S.
at 599.
[10] First, § 3146 clearly includes the requisite actus reus,
an "active interference with proceedings of a tribunal or
investigation, or action or threat of action against those who
would cooperate in the process of justice," Espinoza-
Gonzalez, 22 I. & N. Dec. at 893. Failure to appear before a
court as required by the conditions of release, and failure to
obey a court order to surrender for service, both constitute
active interference with the proceedings of a tribunal. Because
there is no meaningful distinction between personally failing
to appear for court proceedings and hindering a third party
from appearing for such proceedings, see 18 U.S.C. § 1512
8 Rivera argues that another critical element of a generic obstruction of
justice crime is that it must involve violation of a court order, citing Alwan
v. Ashcroft, 388 F.3d 507, 514-515 (5th Cir. 2004). We reject this argument.
Although the specific crime in Alwan, "criminal contempt,"
involved disobedience of a court order, Alwan did not hold that violation
of a court order was a necessary element of obstruction of justice. Rivera
also cites to Barnaby v. Reno, 142 F. Supp. 2d 277 (D. Conn. 2001),
which is irrelevant because it analyzed § 1101(a)(43)(T), not (S).
8410 RENTERIA-MORALES v. MUKASEY
("[t]ampering with a witness, victim, or an informant," a
chapter 73 "Obstruction of Justice" offense), we reject Rivera's
attempt to distinguish a personal failure to appear as constituting
only "passive" interference.
[11] Second, § 3146 also includes the requisite mens rea,
the specific intent to interfere with the process of justice.9 By
its terms, § 3146 prohibits a defendant from knowingly failing
to show up for a judicial proceeding after having been ordered
or directed to do so. Under these circumstances, a defendant
necessarily knows that failure to appear will "affect the judicial
proceeding." Aguilar, 515 U.S. at 599. We have gone further
and construed § 3146 as requiring a willful violation of
a requirement to appear for a judicial proceeding. See, e.g.,
Weaver v. United States, 37 F.3d 1411, 1412-13 (9th Cir.
1994) ("To establish a violation of 18 U.S.C. § 3146, the government
ordinarily must prove that the defendant (1) was
released pursuant to that statute, (2) was required to appear in
court, (3) knew that he was required to appear, (4) failed to
appear as required, and (5) was willful in his failure to
appear."); see also United States v. Smeaton, 762 F.2d 796,
9 In the context of federal obstruction of justice crimes, courts have
defined the specific intent element broadly. See Pettibone v. United States,
148 U.S. 197, 207 (1893) (indicating that the intent to take a wrongful act
that will have the "natural and probable consequence" of obstructing justice
is an "evil intent" to obstruct justice); see also United States v. Hopper,
177 F.3d 824, 830-31 (9th Cir. 1999) (indicating that the elements of
an obstruction-of-justice offense under 18 U.S.C. § 1505 are satisfied
where the defendants had acted to prevent collection of their tax debt, and
knew that "the natural and probable effect" of their actions would be to
interfere with IRS proceedings (internal quotations omitted)); United
States v. Gallimore, 491 F.3d 871, 876 (8th Cir. 2007) (holding that the
only intent necessary to convict a defendant under 18 U.S.C. § 1513(b) for
retaliating against a witness, victim, or informant "was an intent to retaliate"
(internal quotations omitted)). Because we have interpreted § 3146
as requiring the government to prove that the defendant willfully failed to
appear, see infra at 8411-12, we need not consider whether these interpretations
of the mens rea element of specific federal obstruction of justice
crimes are part of the generic federal crime of "obstruction of justice."
RENTERIA-MORALES v. MUKASEY 8411
797-98 (9th Cir. 1985) (recognizing willful failure to appear
as an essential element of the bail-jumping offense). In this
context, "[w]illfulness requires a specific intent to do something
the law forbids; a general intent to commit the proscribed
act is not enough." United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980). A defendant cannot be convicted of
§ 3146 "if it is committed as a result of inadvertence or mistake."
Id .; see also § 3146(c) (stating that it can be an affirmative
defense to a conviction under § 3146 that a defendant was
prevented from appearing in court due to uncontrollable circumstances).
Thus a violation of § 3146 necessarily includes
the intentional failure to appear in court, knowing that one's
presence is required either for trial or execution of sentence.
Our conclusion that the conduct prohibited by § 3146 constitutes
an intentional interference with judicial proceedings is
consistent with our decision in United States v. Draper, 996
F.2d 982, 984-86 (9th Cir. 1983). There we held that a district
court did not err in enhancing the sentence of a defendant who
fled prior to sentencing under U.S.S.G. § 3C1.1, the relevant
version of which provided that, "[i]f the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution,
or sentencing of the instant offense, [then] increase the
offense level by 2 levels." Id. at 984 (alterations in original)
(internal quotation marks omitted). We agreed with the district
court "that defendant obstructed justice because he violated
the conditions of his release from the community
corrections center by failing to report to the corrections center,
thereby impeding the administration of justice." Id. (internal
quotation marks omitted). We noted that the defendant
attempted "to escape justice" after having submitted to judicial
process, making his offense distinguishable from fleeing
arrest, which did not constitute obstruction of justice. Id. at
985-86 (internal quotation marks omitted).
Rivera attempts to distinguish her conviction of violating
§ 3146 from other obstruction of justice offenses on several
8412 RENTERIA-MORALES v. MUKASEY
grounds. She argues that the offense of failing to appear is
equivalent to fleeing arrest which Draper deemed not to constitute
an obstruction of justice, or is analogous to (or less
serious than) misprision of a felony, which Espinoza-
Gonzalez deemed not to be an obstruction of justice. See Draper,
996 F.2d at 985-86; Espinoza-Gonzalez, 22 I. & N. Dec.
at 892. We disagree. As we previously noted, the intentional
failure to appear in court when one's presence has been
required interferes with the proceedings of a tribunal, and as
such meets the generic federal definition of obstruction of justice.
Although misprision of felony or fleeing arrest may
obstruct justice in a general sense, neither act interferes with
judicial process and thus both offenses are different in kind
than generic obstruction of justice offenses. Cf. Draper, 996
F.2d at 986 ("[T]he defendant must have been submitted,
willfully or otherwise, to the due process of law before the
obstruction adjustment can obtain."). Further, as Espinoza-
Gonzalez notes, misprision of felony does not require "proof
that the defendant acted with a motive, or even knowledge, of
the existence of the work of an investigation or tribunal." 22
I. & N. Dec. at 893.10
[12] Because § 3146 fulfills the first two elements of the
generic offense, we conclude that a conviction under § 3146
is "an offense relating to obstruction of justice" for purposes
of § 1101(a)(43)(S). However, § 1101(a)(43)(S) also requires
that the "term of imprisonment" of the offense "is at least one
year." Because § 3146 may be punished by a fine alone, see
§ 3146(b)(1)(A), we must still proceed to a further analysis of
10 Rivera also argues that § 3146 does not constitute a generic obstruction
of justice offense because she was not convicted of the crime for
which she was released on bail. This fact sheds no light on the question
whether the crime of which she was convicted constitutes an obstruction
of justice offense. In addition, her final argument that her conviction does
not constitute an aggravated felony under § 1101(a)(43)(T) is irrelevant,
because the BIA determined that her bail-jumping offense was an obstruction
of justice crime under § 1101(a)(43)(S), not § 1101(a)(43)(T).
RENTERIA-MORALES v. MUKASEY 8413
Rivera's prior conviction under the modified categorical
approach.
[13] Turning to the modified categorical approach, we
review the judgment, which states that Rivera was sentenced
to a term of imprisonment for twelve months and one day.
Because the judgment confirms that Rivera was convicted of
an obstruction of justice offense "for which the term of
imprisonment is at least one year," we conclude that the BIA
did not err in affirming the IJ's holding that Rivera's bailjumping
violation qualified as an aggravated felony under
§ 1101(a)(43)(S). Therefore, we must deny her petition for
review.
V
Based on our application of Taylor, we conclude that a violation
of § 3146 meets the definition of a generic crime of
"obstruction of justice" for purposes of 8 U.S.C.
§ 1101(a)(43)(S), but does not include the element of being an
offense "for which the term of imprisonment is at least one
year." We also conclude that the offense described in § 3146
is broader than the offense described in 8 U.S.C.
§ 1101(a)(43)(T). Accordingly, a conviction under § 3146 is
not categorically an aggravated felony under
§§ 1101(a)(43)(S) or (T). In the particulars of this case, however,
applying the modified categorical approach, we have
determined that the IJ incorrectly deemed Renteria's prior
conviction to be an aggravated felony under § 1101(a)(43)(T),
but the IJ and BIA correctly deemed Rivera's prior conviction
to be an aggravated felony under § 1101(a)(43)(S).
Renteria's Petition for Review is Granted; Rivera's Petition
for Review is Denied.
8414 RENTERIA-MORALES v. MUKASEY
TALLMAN, Circuit Judge, concurring in part and dissenting
in part:
I respectfully dissent from the majority's erroneous conclusion
that, under the modified categorical approach, Irma
Renteria-Morales's ("Renteria") conviction for bail jumping
does not meet the elements of an aggravated felony as set
forth in 8 U.S.C. § 1101(a)(43)(T). Because the court's holding
is based on a fundamental misunderstanding of federal
criminal procedure regarding mandatory conditions imposed
on release from custody, and because the charging language
of the bail jumping information compels the opposite conclusion,
I would deny her petition for review. I concur in all
other parts of the majority's opinion.
The criminal information charging Renteria with bail jumping
states in relevant part,
[t]hat . . . Renteria-Morales, after having been
released on or about March 2, 1992 pursuant to
Chapter 207 of Title 18 of the United States Code,
in connection with a charge of possession with intent
to distribute marijuana, an offense punishable by
imprisonment for a term of not more than five (5)
years, and having been directed to appear before the
District Court for the District of Arizona at Tucson,
Arizona, . . . willfully did fail to appear.
This language is susceptible to only one reasonable interpretation:
Renteria was charged with the felony of possession
of marijuana with the intent to distribute, she was released
under 18 U.S.C. § 3142 subject to various terms of release
under the statute, and she was ordered by a judge to appear
in court to answer or dispose of that charge, but she willfully
failed to do so. That conduct renders her ineligible for relief
from deportation.
Renteria's interpretation of the information, accepted by the
majority, is unreasonable. She first contends that being "di-
RENTERIA-MORALES v. MUKASEY 8415
rected to" appear by a judge is not synonymous with being
"ordered to" appear. Her argument ignores Sections 3141 and
3142, contained within Chapter 207 of Title 18, which use the
term "order" throughout. For example, Section 3141(a) states,
"Pending trial. — A judicial officer authorized to order the
arrest of a person under section 3041 of this title before whom
an arrested person is brought shall order that such person be
released or detained, pending judicial proceedings, under this
chapter." (Emphasis added). Section 3142 provides, in relevant
part,
(a) In general. Upon the appearance before a judicial
officer of a person charged with an offense, the
judicial officer shall issue an order . . .
(b) Release on personal recognizance or unsecured
appearance bond. The judicial officer shall order the
pretrial release of the person . . .
(c) Release on conditions. (1) If the judicial officer
determines that the release described in subsection
(b) of this section will not reasonably assure the
appearance of the person as required or will endanger
the safety of any other person or the community,
such judicial officer shall order the pretrial release
of the person . . . .
(Emphasis added); See Fed. R. Crim. P. 5(d)(3) ("The judge
must detain or release the defendant as provided by statute or
these rules.").
In this case, when the United States magistrate judge "directed"
Renteria to appear, he was necessarily exercising his
authority under Section 3142 and "ordering" Renteria to
appear. There is no other possibility. That the information
happens to use the words "directed to appear" instead of "ordered
to appear" is immaterial.
8416 RENTERIA-MORALES v. MUKASEY
Renteria also argues that, based on the language of the
information, someone else could have been charged with possession
with the intent to distribute marijuana, and that Renteria
may have been ordered to appear as a material witness
in that case, but failed to do so. That too is an unreasonable
reading of the documents we may consider under Taylor's
modified categorical approach. The information explicitly
states that Renteria was released "in connection with a charge
of possession with the intent to distribute marijuana." In other
words, she was arrested on suspicion of committing that felony,
then released. There is simply no reason to believe that
someone else was charged with that felony, that Renteria was
a material witness thereto, and that she failed to show up to
testify. If Renteria had really failed to testify against someone
else in a drug case, the information would have charged her
failure to appear in response to a subpoena or agreement to
testify. It did not.
Finally, Renteria argues, and the majority erroneously
agrees, that, based on the language of the information, Renteria
may have simply failed to show up for sentencing, as
opposed to failing to show up "to answer or dispose of a
charge of a felony." There are two problems with Renteria's
argument.
First, the information cannot reasonably be read to mean
that Renteria failed to show up for sentencing. If Renteria had
really failed to show up for sentencing, then it follows that she
would have already been found guilty of the crime described
in the information. But the information does not say that. It
simply says that she was "released . . . in connection with"
that felony. If Renteria had been convicted of the felony
charged and failed to show up for sentencing, the information
would say so.
Second, even if Renteria is correct that the information may
be fairly read to mean that she did not show up for sentencing,
a person who fails to show up for sentencing has failed to
RENTERIA-MORALES v. MUKASEY 8417
"dispose of a charge of a felony," within the meaning of 8
U.S.C. § 1101(a)(43)(T). A "charge of a felony" is not "disposed
of" until the defendant is sentenced and judgment of
conviction is entered. See Barnaby v. Reno, 142 F. Supp. 2d
277, 279 (D. Conn. 2001) (construing the defendant's failure
to appear at sentencing as a failure to "dispose of" the charge
within the meaning of 8 U.S.C. § 1101(a)(43)(T)); see, e.g.,
Fed. R. App. P. 4(b) (noting that the final decision in a criminal
case for purposes of appeal is the entry of the judgment
of conviction). Thus, even under Renteria's and the majority's
own reading of the information, she failed to "dispose of a
charge of a felony."
Under the modified categorical approach applied to a plain
reading of the documents we may consider, Renteria's conviction
for bail jumping necessarily meets all of the elements
of an aggravated felony as set forth in 8 U.S.C.
§ 1101(a)(43)(T). I would deny her petition for review.
8418 RENTERIA-MORALES v. MUKASEY
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