NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO GONZALEZ- ) No. 15-71755

RAMIREZ, ) 

) Agency No. A090-191-186

Petitioner, )

) MEMORANDUM*

v. )

)

JEFFERSON B. SESSIONS III, )

Attorney General, )

)

Respondent. )

 )

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 4, 2018

Pasadena, California

Before: FERNANDEZ and CHRISTEN, Circuit Judges, and MARSHALL,**

District Judge.

Fernando Gonzalez-Ramirez, a native and citizen of Mexico and lawful

permanent resident of the United States petitions for review of the Board of

FILED

JUN 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

*This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3. 

**The Honorable Consuelo B. Marshall, United States District Judge for the

Central District of California, sitting by designation.
Immigration Appeals’ (BIA) determination that he was ineligible for cancellation

of removal

1

 because he was convicted of a crime of violence.

2

 We grant the

petition and remand.3

Gonzalez was convicted of the crime of discharging a firearm at an

unoccupied motor vehicle. See Cal. Penal Code § 247(b). We have previously

held that discharging a firearm at an occupied motor vehicle4 is not a categorical

crime of violence under § 16 because a person’s merely reckless actions5 are

sufficient to support a conviction for that crime. Covarrubias Teposte, 632 F.3d at

1052–55;6

see also Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S. Ct. 377, 383, 160 L.

1

8 U.S.C. § 1229b(a).

2

See id. § 1101(a)(43)(F); see also 18 U.S.C. § 16 (hereafter “§ 16”).

3We note that we do not owe the BIA deference regarding the construction

and application of § 16 to state statutes. See Covarrubias Teposte v. Holder, 632

F.3d 1049, 1052 (9th Cir. 2011).

4Cal. Penal Code § 246.

5

See People v. Overman, 126 Cal. App. 4th 1344, 1356–57, 24 Cal. Rptr. 3d

798, 805–06 (2005); People v. Cruz, 38 Cal. App. 4th 427, 432–33, 45 Cal. Rptr.

2d 148, 151 (1995); People v. Chavira, 3 Cal. App. 3d 988, 993, 83 Cal. Rptr. 851,

854–55 (1970).

6We recognize that Covarrubias Teposte relied upon § 16(b) when it decided

that section 246 was not a crime of violence, and that the Supreme Court has now

indicated that § 16(b) is void for vagueness. See Sessions v. Dimaya, __ U.S. __,

__, 138 S. Ct. 1204, 1223, __ L. Ed. 2d __ (2018). However, our holding was

based upon the fact that reckless use of force was sufficient to support a conviction

(continued...)

2
Ed. 2d 271 (2004);7

 The BIA erred when it relied upon a contrary authority8

 which

had been superseded.9

 Because the crime of discharging a firearm at an

unoccupied motor vehicle is structured almost exactly like the crime of discharging

it at an occupied motor vehicle, the same analysis applies to each of them mutatis

mutandis, and the result is also that California Penal Code section 247(b) is not a

crime of violence. 

Specifically, just as section 246 is a general intent crime,

10

 so too is section

6

(...continued)

under section 246. Covarrubias Teposte, 632 F.3d at 1053–54; see also United

States v. Narvaez-Gomez, 489 F.3d 970, 976–77 (9th Cir. 2007). The basis of that

holding would preclude coverage under § 16(a) as well. See Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1129–30, 1132 (9th Cir. 2006) (en banc).

7We are also aware of Voisine v. United States, __ U.S. __, 136 S. Ct. 2272, 

195 L. Ed. 2d 736 (2016). However, that Supreme Court decision does not affect

our § 16(a) case law. See id. at __, 136 S. Ct. at 2280 n.4. Thus, our § 16(a) cases

remain the law of this circuit. See Rodriguez v. AT & T Mobility Servs. LLC, 728

F.3d 975, 979 (9th Cir. 2013).

8United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir.), amended by

415 F.3d 977 (9th Cir.), amended by 425 F.3d 547 (9th Cir. 2005).

9

See Narvaez-Gomez, 489 F.3d at 976 n.3.

10

See Overman, 126 Cal. App. 4th at 1357, 24 Cal. Rptr. 3d at 806.

3
247(b) a general intent crime.

11

 Thus, both crimes require willful12

 action (the

discharge of a firearm at a motor vehicle).13

 The jury instructions that California

courts are “strongly encouraged”14 to use indicate that the mens rea for both crimes

includes willful shooting of a firearm at a motor vehicle.

15

 And while the penalties

differ,16 those for violating section 246 can be materially greater than those for

violating section 247(b). In fine, common sense would lead to the conclusion that

it would be strange indeed if a person was eligible for cancellation of removal if he

had discharged a firearm at an occupied vehicle, but was not eligible if he had

discharged one at an unoccupied vehicle. There is no basis for holding that the law

applicable here fails to accord with common sense.

11

See People v. Rubalcava, 23 Cal. 4th 322, 328, 1 P.3d 52, 56, 96 Cal. Rptr.

2d 735, 739 (2000).

12We note that willful implies that the person “knows” and “intends to do

what he is doing.” People v. Jerry R. (In re Jerry R.), 29 Cal. App. 4th 1432, 1438,

35 Cal. Rptr. 2d 155, 160 (1994).

13Section 246 adds “maliciously” as a requisite for conviction, but that is not

relevant for our purposes in this case.

14

See Cal. R. Ct. 2.1050(e); see also People v. Simmons, 233 Cal. App. 4th

1458, 1477, 183 Cal. Rptr. 3d 597, 613 (2015).

15

See CALCRIM No. 965; CALCRIM No. 966; see also CALJIC No. 9.03;

CALJIC No. 9.03.2.

16The penalty for violation of section 246 is explicitly set forth in the section

itself. The penalty for violating section 247(b) is set forth in the section and at

California Penal Code sections 17(a), 1170(h). 

4
Thus, because his conviction for violation of section 247(b) does not render

Gonzalez ineligible for cancellation of removal, we grant the petition and remand

for further proceedings consistent with this disposition.

Petition GRANTED and REMANDED.

5
Gonzalez-Ramirez v. Sessions, 15-71755

CHRISTEN, Circuit Judge, concurring:

I concur in the court’s memorandum disposition, and only write to explain

that, in my view, three considerations drive this result. First, California Penal

Code § 247(b), like § 246, is a general intent crime that includes “no further mental

state beyond willing commission of the act proscribed by law,” People v.

Rubalcava, 23 Cal. 4th 322, 328 (2000), a standard that encompasses recklessness. 

Second, as the court’s memorandum disposition notes, our caselaw requires that to

constitute a “crime of violence” under 18 U.S.C. § 16(a), an offense must involve

intentional (not merely reckless) conduct. See Fernandez-Ruiz v. Gonzalez, 466

F.3d 1121, 1130 (9th Cir. 2006) (en banc). Finally, the Supreme Court’s recent

decision in Voisine v. United States expressly left open the question whether

§ 16(a) includes reckless behavior. 136 S. Ct. 2272, 2280 n.4 (2016). Because

Cal. Penal Code § 247(b), the statute of conviction in this case, prohibits a broader

array of conduct than the federal statute, § 247(b) does not constitute a categorical

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

FILED

JUN 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS