FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARMANDO CABRERA-PEREZ,

Defendant-Appellant.

No. 13-50148

D.C. No.

3:11-cr-03248-BTM-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

March 6, 2014—Pasadena, California

Filed May 9, 2014

Before: Jay S. Bybee, Carlos T. Bea, and Sandra S. Ikuta,

Circuit Judges.

Opinion by Judge Bea
2 UNITED STATES V. CABRERA-PEREZ

SUMMARY*

Criminal Law

The panel affirmed the district court’s denial of a motion

to dismiss an indictment charging attempted entry after

deportation.

The panel held that the district court did not err in

applying the modified categorical approach – based on the

direct complaint, the plea agreement, and the transcript of the

plea colloquy – to conclude that the defendant’s conviction

for aggravated assault, under Arizona Revised Statutes § 13-

1203(A)(2) and § 13-1204(A)(2), constitutes a “crime of

violence” under the Immigration and Nationality Act

§ 101(a)(43) and 18 U.S.C. § 16, and that the defendant

therefore suffered no prejudice from the immigration judge’s

alleged failure to advise him of his potential eligibility for

voluntary departure.

COUNSEL

Knut S. Johnson, San Diego, California, for DefendantAppellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter

and Jill L. Burkhardt, Assistant United States Attorneys, San

Diego, California, for Plaintiff-Appellee.

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

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CABRERA-PEREZ 3

OPINION

BEA, Circuit Judge:

This case requires us to determine whether the crime of

aggravated assault, under Arizona Revised Statutes

(“A.R.S.”) § 13-1203(A)(2) and § 13-1204(A)(2), constitutes

a “crime of violence” under the Immigration and Nationality

Act (“I.N.A.”) § 101(a)(43)(F) and 18 U.S.C. § 16, such that

an individual convicted under those Arizona statutes would

be ineligible for voluntary departure under 8 C.F.R.

§ 1240.26(b)(1)(i)(E). Applying the modified categorical

approach, we hold that Defendant-Appellant Armando

Cabrera-Perez’s conviction for aggravated assault under

A.R.S. § 13-1203(A)(2) and § 13-1204(A)(2) constitutessuch

a “crime of violence.” As a result, Cabrera-Perez was not

eligible for voluntary departure at his February 9, 2005

immigration hearing. Accordingly, Cabrera-Perez’s attempt

to attack collaterally the deportation order underlying his

illegal reentry conviction because he was not adequately

advised of the voluntary departure remedy fails.1

Background

In 2004, Cabrera-Perez was charged by the state of

Arizona’s direct complaint with aggravated assault under

A.R.S. § 13-1203 and § 13-1204. Count 3 stated:

Armando Cabrera Perez . . . , on or about the

26th day of October, 2003, using a handgun,

a deadly weapon or dangerous instrument,

1 We address other issues raised in this appeal in a concurrently filed

memorandum disposition.
4 UNITED STATES V. CABRERA-PEREZ

intentionally placed [his victim] in reasonable

apprehension of imminent physical injury, in

violation of [A.R.S] § 13-1203, 13-1204 . . . .

Count 4 stated the same but named a different victim. On

April 2, 2004, Cabrera-Perez executed a plea agreement in

which he “agree[d] to plead guilty to: Counts 3 and 4” of the

direct complaint. Two days later, at his change of plea

hearing, the state trial court confirmed that Cabrera-Perez

intended to plead guilty to Counts 3 and 4, as described in the

plea agreement. As to the factual basis for the plea, CabreraPerez’s attorney stated:

On October 26th, 2003 . . . [Cabrera-Perez]

had a gun and he fired the weapon in the

general vicinity of [the two victims], and they

were, in fact, afraid for their safety.

The court accepted Cabrera-Perez’s guilty plea “to the

charges as set forth in the plea agreement” and sentenced him

to twelve months’ incarceration and four years of probation. 

On May 4, 2004, the court suspended the imposition of the

sentence and placed Cabrera-Perez on probation for four

years.

On January 26, 2005, the Immigration and Naturalization

Service issued Cabrera-Perez a Notice to Appear, which

notice charged that Cabrera-Perez was subject to removal as

“an alien present in the United States without being admitted

or paroled,” I.N.A. § 212(a)(6)(A)(i), and as an “alien who

has been convicted of . . . a crime involving moral turpitude,”

I.N.A. § 212(a)(2)(A)(i)(I). On February 9, 2005, CabreraPerez appeared at his immigration hearing. When the

Immigration Judge (“IJ”) addressed Cabrera-Perez
UNITED STATES V. CABRERA-PEREZ 5

individually, Cabrera-Perez admitted that he had entered the

U.S. illegally in November 2003 and that he was convicted in

2004 for aggravated assault. Cabrera-Perez agreed that both

of these admissions were “correct reasons [for him] to be

removed from the United States.” The IJ then stated:

Based on your testimony and review of the

statute I find that each of the separate

components of the aggravated assault statute

to be a crime involving moral turpitude. 

Based on the felony designation I find you are

subject to be removed. What country do you

want to be deported to?

Cabrera-Perez responded, “Mexico.”

The IJ confirmed that Cabrera-Perez had “seven dollars

for voluntary departure,” and then asked, “Do you want your

case postponed for voluntary departure or do you want the

case ended today?” Cabrera-Perez responded, “End it today.” 

The IJ then stated, “You are not eligible to be in the United

States based on the facts of your case, voluntary return was

explained in your presence. . . . It is ordered that you are to

leave the United States to Mexico . . . .” Cabrera-Perez stated

that he understood this decision and that he waived his right

to file an appeal. The IJ signed an order which stated that

Cabrera-Perez “was ordered removed from the United States

to Mexico.” That same day, Cabrera-Perez was deported to

Mexico.

On May 8, 2011, Cabrera-Perez attempted to reenter the

United States at the San Ysidro Port of Entry. Cabrera-Perez

presented a photocopy of a birth certificate and a California

identification card, both bearing the name of another
6 UNITED STATES V. CABRERA-PEREZ

individual, to the Customs and Border Protection (“CBP”)

Officer. The CBP officer noted that Cabrera-Perez did not

appear to be the person in the photograph on the identification

card, and escorted Cabrera-Perez to the Port Enforcement

Team inspection area, where another officer took CabreraPerez’s fingerprint and determined his true identity.

On July 27, 2011, the government indicted Cabrera-Perez

on a single count of attempted entry after deportation

pursuant to 8 U.S.C. § 1326(a) and (b). The government filed

a superseding indictment on August 3, 2011, adding one

count of aggravated identity theft under 18 U.S.C. § 1028A. 

Two days later, Cabrera-Perez pleaded not guilty.

On September 12, 2011, Cabrera-Perez filed a motion to

dismiss the superseding indictment, claiming that the

underlying removal order was invalid because the IJ failed to

adequately advise him of his eligibility for voluntary

departure during the removal proceedings in 2005.2 The

district court agreed with the government that Cabrera-Perez

“suffered no prejudice from the IJ’s alleged failure to advise

[Cabrera-Perez] of his eligibility for voluntary departure

because [Cabrera-Perez’s] prior Arizona felony convictions

[for aggravated assault under A.R.S. § 13-1203 and § 13-

1204] rendered him ineligible for such relief,” as those

convictions constituted “crime[s] of violence” within the

meaning of I.N.A. § 101(a)(43)(F) and 18 U.S.C. § 16. As a

2 Cabrera-Perez also argued that the substance of the removal

proceedings established that he was in fact voluntarily departed, rather

than removed from the U.S. in 2005. The district court rejected this

argument “[g]iven the undisputed existence of a signed removal order.” 

The jury also determined that “the government ha[d] proved beyond a

reasonable doubt that [Cabrera-Perez] was deported and removed fromthe

United States on February 9, 2005.”
UNITED STATES V. CABRERA-PEREZ 7

result, the district court denied Cabrera-Perez’s motion to

dismiss the superseding indictment.

After a four day trial, on December 2, 2011, the jury

returned guilty verdicts on both the illegal reentry count and

the identity theft count. On March 18, 2013, the district court

held a sentencing hearing. The district court granted CabreraPerez a downward variance of 40 months from the low end of

the Sentencing Guidelines range, resulting in a 70 month

sentence on the illegal reentry count. In addition, the district

court sentenced Cabrera-Perez to a consecutive 24 months for

the identity theft count, resulting in a total sentence of 94

months, to be followed by three years of supervised release.

Standard of Review

This Court reviews de novo the denial of a motion to

dismiss an 8 U.S.C. § 1326 indictment when the motion to

dismiss is based on alleged due process defects in the

underlying deportation proceeding. United States v. Ramos,

623 F.3d 672, 679–80 (9th Cir. 2010).

Analysis

A defendant charged with illegal reentry in violation of

8 U.S.C. § 1326 may collaterally attack his underlying

deportation order if the defendant demonstrates that: “(1) the

alien exhausted any administrative remedies that may have

been available to seek relief against the order; (2) the

deportation proceedings at which the order was issued

improperly deprived the alien of the opportunity for judicial

review; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d). “Fundamental unfairness”

requires (1) a due process violation in removal proceedings
8 UNITED STATES V. CABRERA-PEREZ

and (2) prejudice as a result of the due process violation. 

United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir.

2009). Before his trial, Cabrera-Perez sought to attack

collaterally his underlying deportation order by filing a

motion to dismiss the superseding indictment, claiming that

the underlying removal order was invalid because the IJ

failed to adequately advise him of his eligibility for voluntary

departure during the removal proceedings in 2005. In its

order denying Cabrera-Perez’s motion, the district court

concluded that “even if the IJfailed to advise [Cabrera-Perez]

of his right to voluntary removal, there was no prejudice”

because Cabrera-Perez “committed a ‘crime of violence’

within the meaning of Section 101(a)(43)(F) of the I.N.A. and

[was therefore] ineligible for voluntary removal.” On appeal,

Cabrera-Perez argues that the district court erred in its

conclusion that his prior conviction for aggravated assault

from 2004 constituted a “crime of violence.”

8 C.F.R. § 1240.26(b)(1)(i)(E) provides that “[a]n alien

may be granted voluntary departure by an immigration judge

. . . only if the alien . . . [h]as not been convicted of a crime

described in [I.N.A.] section 101(a)(43) . . . .” Section

101(a)(43) includes “crime[s] of violence (as defined in

section 16 of Title 18, but not including a purely political

offense) for which the term of imprisonment [is] at least one

year.” I.N.A. § 101(a)(43)(F). In turn, 18 U.S.C. § 16

defines a “crime of violence” as:

(a) an offense that has an element of the use,

attempted use, or threatened use of physical

force against the person or property of

another, or
UNITED STATES V. CABRERA-PEREZ 9

(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.

The statute under which Cabrera-Perez was convicted,

A.R.S. § 13-1203, provides:

A. A person commits assault by:

1. Intentionally, knowingly or recklessly

causing any physical injury to another person;

or

2. Intentionally placing another person in

reasonable apprehension ofimminent physical

injury; or

3. Knowingly touching another person with

the intent to injure, insult or provoke such

person.

A.R.S. § 13-1204(A) provides that a “person commits

aggravated assault if the person commits assault as prescribed

by § 13-1203 under any of the following circumstances: . . .

(2) If the person uses a deadly weapon or dangerous

instrument.”

In determiningwhether Cabrera-Perez’s conviction under

A.R.S. § 13-1203 and § 13-1204 constituted a “crime of

violence,” the district court correctly employed the two-part

analysis applicable to “divisible statutes,” as described by the

Supreme Court in Descamps v. United States, 133 S. Ct. 2276
10 UNITED STATES V. CABRERA-PEREZ

(2013).3 First, the district court determined that under the

categorical approach, “A.R.S. § 13-1203 in its entirety is not

categorically a ‘crime of violence’ because subpart (A)(1) can

be violated with a mens rea of ‘recklessness,’ and a ‘crime of

violence’ under 18 U.S.C. § 16 requires a mens rea of at least

extreme recklessnesss.” See Fernandez-Ruiz v. Gonzalez,

466 F.3d 1121, 1130 (9th Cir. 2006) (“[N]either recklessness

nor gross negligence is a sufficient mens rea to establish that

a conviction is for a crime of violence under [18 U.S.C.]

§ 16.”). Both parties agree with the district court’s

conclusion in this respect.

Second, the district court applied the modified categorical

approach, under which courts “consult a limited class of

documents[4] . . . to determine which alternative [element]

formed the basis of the defendant’s prior conviction.” 

Descamps, 133 S. Ct. at 2281. “The court can then . . .

compare the elements of the crime of conviction (including

the alternative element used in the case) with the elements of

the generic crime.” Id. Both parties agree that the district

court was correct to apply the modified categorical approach. 

The parties, however, disagree about the validity of the

district court’s conclusion that under the modified categorical

approach Cabrera-Perez’s crimes of conviction constituted

“crimes of violence.”

3 A “divisible statute . . . sets out one or more elements of the offense in

the alternative.” Descamps, 133 S. Ct. at 2281 (internal quotation marks

omitted).

4 These documents include “the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which [the defendant] assented.” 

United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir. 2007).
UNITED STATES V. CABRERA-PEREZ 11

In reaching this conclusion, the district court considered

three documents. First, the district court looked at the direct

complaint which charged Cabrera-Perez with aggravated

assault. Counts 3 and 4 of the direct complaint both stated:

Armando Cabrera Perez . . . using a handgun,

a deadly weapon or dangerous instrument,

intentionally placed [the victim] in reasonable

apprehension of imminent physical injury, in

violation of [A.R.S.] § 13-1203, 13-1204 . . . .

The district court noted that Counts 3 and 4 “track the

language” of § 13-1203(A)(2) (“[i]ntentionally placing

another person in reasonable apprehension of imminent

physical injury”) and § 13-1204(A)(2) (use of “a deadly

weapon or other dangerous instrument”). Second, the district

court looked at Cabrera-Perez’s plea agreement, in which he

agreed to plead guilty to Counts 3 and 4 from the direct

complaint. Third, the district court looked at the change of

plea colloquy at which Cabrera-Perez pleaded guilty to

Counts 3 and 4, and Cabrera-Perez’s attorney adopted the

factual basis for the plea.

Based on this record of conviction, the district court

determined that Cabrera-Perez was convicted under subpart

(A)(2) of A.R.S. § 13-1203 and subpart (A)(2) of A.R.S.

§ 13-1204. Finally, the district court concluded that CabreraPerez committed a “crime of violence” because “the Ninth

Circuit has held that convictions under subpart (A)(2) of § 13-

1203 and subpart (A)(2) of § 13-1204 satisfy both alternative

prongs of the test for a ‘crime of violence’ under 18 U.S.C.

§ 16.” See United States v. Ceron-Sanchez, 222 F.3d 1169,

1172–73 (9th Cir. 2000), overruled on other grounds by

Fernandez-Ruiz, 466 F.3d at 1125 n.6.
12 UNITED STATES V. CABRERA-PEREZ

On appeal, Cabrera-Perez first claims that the record of

conviction does not indicate that he was convicted under

subpart (A)(2) of § 13-1203 and subpart (A)(2) of § 13-1204. 

He argues that the plea agreement did not state under which

subpart of these statutes he agreed to plead guilty. However,

as the district court correctly noted, Counts 3 and 4 of the

direct complaint track the language of subpart (A)(2) of § 13-

1203 and subpart (A)(2) of § 13-1204 word-for-word. 

Moreover, in his plea agreement, Cabrera-Perez agreed to

plead guilty to Counts 3 and 4 in the direct complaint.5

Therefore, applying the modified categorical approach, we

conclude that Cabrera-Perez was convicted under subpart

(A)(2) of A.R.S. § 13-1203 and subpart (A)(2) of A.R.S.

§ 13-1204.6

Second, Cabrera-Perez asserts that “this Circuit [has]

repeatedly held that charging documents [such as the direct

5 The plea agreement stated only that Cabrera-Perez agreed to plead

guilty to “Counts 3 and 4.” The plea agreement did not explicitly

reference the direct complaint. However, Cabrera-Perez does not argue

on appeal that the reference to “Counts 3 and 4” in the plea agreement was

a reference to charges other than in the direct complaint.

6 Cabrera-Perez also argues that “[t]he change of plea colloquy was

completely devoid of evidence [that] Mr. Cabrera-Perez[] admitted that he

intended to cause fear in others when he fired a weapon in the general

vicinity of his neighbors.” (emphasis added). Cabrera-Perez suggests that

the district court therefore should not have concluded that he was

convicted under § 13-1203(A)(2), which requires intentional action. 

While Cabrera-Perez is correct that the factual basis adopted by his

counsel at the change of plea colloquywas “devoid of evidence” regarding

Cabrera-Perez’s intent, Counts 3 and 4 of the direct complaint, to which

Cabrera-Perez agreed to plead guilty, stated that Cabrera-Perez

“intentionally placed [his victims]inreasonable apprehension ofimminent

physical injury.” Therefore, this argument fails.
UNITED STATES V. CABRERA-PEREZ 13

complaint here] are insufficient alone to prove the facts to

which [a defendant] [has] admitted.” (third alteration in

original) (internal quotation marks omitted). However, in

United States v. Vidal, cited by Cabrera-Perez, the court

rejected the use of Vidal’s charging documents to prove the

facts to which he admitted because the record did not contain

“a transcript of Vidal’s change of plea hearing or any record[]

of the terms of his plea bargain.” 504 F.3d 1072, 1089 (9th

Cir. 2007). By contrast, here, we have: (1) the direct

complaint, (2) the plea agreement, and (3) the transcript of

the change of plea colloquy. And, as the government argues,

“each step in [Cabrera-Perez’s] process of conviction

refer[red] back to Counts 3 and 4 of the [direct complaint],

which [counts] by their charging language allege” that

Cabrera-Perez “intentionally placed [his victims] in

reasonable apprehension of imminent physical injury.” 

Therefore, because the complaint is “‘a charging document

that narrows the charge to generic limits,’ the fact that

[Cabrera-Perez] pleaded guilty to th[ese] charge[s]

establishes that he was convicted of [the generic offense].” 

United States v. Rivera, 658 F.3d 1073, 1078 (9th Cir. 2011)

(citation omitted).

Finally, Cabrera-Perez takes issue with the district court’s

reliance on Ceron-Sanchez for the proposition that

“convictions under subpart (A)(2) of § 13-1203 and subpart

(A)(2) of § 13-1204 satisfy both alternative prongs of the test

for a ‘crime of violence’ under 18 U.S.C. § 16.” In CeronSanchez,

7

the Ninth Circuit considered whether a conviction

 

7

 Ceron-Sanchez pleaded guilty to attempted aggravated assault with a

deadly weapon in violation of A.R.S. § 13-1204(A)(2). After CeronSanchez was released from prison, he was deported. Ceron-Sanchez

returned to the United States, was arrested, and was charged with illegal
14 UNITED STATES V. CABRERA-PEREZ

under A.R.S. § 13-1203(A) and § 13-1204(A)(2) constituted

a “crime of violence” under 18 U.S.C. § 16. 222 F.3d at

1172. The court concluded that each of A.R.S. §§ 13-

1203(A)(1), (A)(2), and (A)(3)

requires either the use, attempted use, or

threatened use of force against the person of

another, and by incorporation, a conviction

under [A.R.S.] § 13-1204(A)(2) meets the

definition of crime of violence set out in

18 U.S.C. § 16(a).

Id. at 1173.8

reentry under 8 U.S.C. § 1326. He pleaded guilty, and, at sentencing, the

district court “increased Ceron-Sanchez’s offense level by 16 under

U.S.S.G. § 2L1.2(b)(1)(A) which applies if the defendant previously was

deported after a criminal conviction for an aggravated felony,” as defined

in I.N.A. § 101(a)(43). 222 F.3d at 1171. Under subsection (F) of I.N.A

§ 101(a)(43)—the same provision at issue in the instant case—the term

“aggravated felony” includes a “crime of violence” as defined by

18 U.S.C. § 16. On appeal, Ceron-Sanchez argued that his attempted

aggravated assault conviction did not constitute a “crime of violence”

because that conviction “was based on reckless conduct and, therefore,

[did] not constitute a crime of violence for aggravated felony purposes.” 

Id. at 1172. Applying the categorical approach, the NinthCircuit affirmed

the district court, concluding that “Ceron-Sanchez’s statute of conviction

reaches only conduct that would constitute a crime of violence.” Id. at

1173.

8 The court also concluded that a “conviction under [A.R.S.] § 13-

1204(A)(2) [] satisfies the alternative definition of a crime of violence set

out in 18 U.S.C. § 16(b),” which covers felony convictions which by their

nature “involve[] a substantial risk that physical force . . . may be used

against the person or property of another.” Id.(third alteration in original)

(internal quotation marks omitted).
UNITED STATES V. CABRERA-PEREZ 15

Cabrera-Perez argues that Ceron-Sanchez does not

support the proposition that A.R.S. § 13-1203(A)(2) and § 13-

1204(A)(2) constitute “crimes of violence” in light of our

more recent en banc opinion in Fernandez-Ruiz. However,

while the en banc court in Fernandez-Ruiz did overrule

Ceron-Sanchez, “the specific focus of [the analysis in

Fernandez-Ruiz was] whether the offense defined in [A.R.S.]

§ 13-1203(A)(1) [as opposed to § 13-1203(A)(2)] [was] a

crime of violence under 18 U.S.C. § 16(a).” 466 F.3d at

1125. Indeed, the Fernandez-Ruiz court stated that “because

we ultimately conclude that not all of the conduct proscribed

by [A.R.S.] § 13-1203(A)(1) meets the definition of a crime

of violence, we do not consider [A.R.S.] § 13-1203(A)(2).” 

Id. at 1125 n.6.

As a result, the reasoning applied by the Ceron-Sanchez

court to conclude that a violation of A.R.S. § 13-1203(A)(2)

constitutes a “crime of violence” is still valid. In particular,

A.R.S. § 13-1203(A)(2) satisfies the first prong of 18 U.S.C.

§ 16 because “[i]ntentionally placing another person in

reasonable apprehension of imminent physical injury,”A.R.S.

§ 13-1203(A)(2), has as an element “the use, attempted use,

or threatened use of physical force against the person or

property of another,” 18 U.S.C. § 16(a). Unlike in

Fernandez-Ruiz, where the court determined that not all

conduct proscribed by A.R.S. § 13-1203(A)(1) constituted a

“crime of violence” under 18 U.S.C. § 16(a) because

subsection (A)(1) included “reckless” conduct, subsection

(A)(2) proscribes only intentional conduct. 466 F.3d 1132. 

We therefore hold that convictions under A.R.S. § 13-

1203(A)(2), and convictions under A.R.S. § 13-1204(A)(2)

which incorporate A.R.S. § 13-1203(A)(2), constitute “crimes

of violence” under 18 U.S.C. § 16.
16 UNITED STATES V. CABRERA-PEREZ

Ultimately, the district court did not err in applying the

modified categorical approach to conclude that CabreraPerez’s crimes of conviction constituted “crimes of violence”

under 18 U.S.C. § 16, such that Cabrera-Perez suffered no

prejudice from the IJ’s alleged failure to advise CabreraPerez of his potential eligibility for voluntary departure. We

therefore affirm the district court in this respect.

Conclusion

For the foregoing reasons, we AFFIRM the district

court’s denial of Cabrera-Perez’s motion to dismiss the

indictment.