NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

OMAR MORA-RIVERA, AKA Big 

Droops, AKA July Dominguez, AKA 

Droops, AKA Droopy, AKA Mark 

Jimenez, AKA Little Loco, AKA Omar 

Mora, AKA Omar Jair Mora, AKA Omar 

Jair Mora-Rivera, AKA Omar Mora Rivera, 

AKA Omar J. Rodriguez

 Defendant-Appellant.

No. 17-55055

D.C. No. 2:15 CV 05589-BRO

 2:12 CR 00745-BRO

MEMORANDUM*

On Appeal from the United States

District Court for the Central District of California

Honorable Beverly Reid O’Connell, Presiding

Argued and Submitted February 6, 2019

Before: WARDLAW and BEA, Circuit Judges; and MURPHY, III,** 

District Judge

 

 

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

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

 

** The Honorable Stephen J. Murphy, III, District Judge for the U.S. 

District Court for the Eastern District of Michigan, sitting by designation.

FILED

APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Omar Mora-Rivera (“Mora-Rivera”) appeals the district court’s order 

denying his motion to vacate, set aside, or correct his sentence pursuant to 28 

U.S.C. § 2255. We granted him a certificate of appealability on the issue of 

whether Mora-Rivera’s prior conviction under California Penal Code § 451(d) 

(“arson conviction”) is properly considered a crime of violence under 18 U.S.C. § 

16, and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) of the 

Immigration and Nationality Act (“INA”). The certified question includes whether 

California Penal Code § 451(d) is a divisible statute.

Mora-Rivera argues that his arson conviction is not an aggravated felony for 

two reasons: (1) California Penal Code § 451(d) is not categorically a crime of 

violence under 18 U.S.C. § 16(a), and (2) under Dimaya v. Lynch, 803 F.3d 1110 

(9th Cir. 2015), aff’d sub nom. Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the 

“residual clause” in 18 U.S.C. § 16(b) is unconstitutionally vague. The district 

court acknowledged Dimaya as binding precedent but ruled that Mora-Rivera’s 

arson conviction was a crime of violence pursuant to 18 U.S.C. § 16(a) under the 

modified categorical approach. 

A criminal offense constitutes a “crime of violence” if it “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). To determine whether a state offense 
3

qualifies as a crime of violence aggravated felony under the statute, we use the

categorical approach. Ramirez v. Lynch, 810 F.3d 1127, 1130–31 (9th Cir. 2016). 

A state offense categorically qualifies as an aggravated felony only if its elements, 

without any consideration of the facts underlying the individual case, are 

necessarily “encompassed by the generic federal offense.” Id. at 1131 (quoting 

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). As the district court correctly 

concluded, California Penal Code § 451(d) is not a categorical match to a crime of 

violence aggravated felony. Because § 451(d) encompasses burning one’s own 

property if “there is an intent to defraud or there is injury to another,” it 

encompasses a broader range of conduct than the federal definition under 18 

U.S.C. § 16(a).

The next step is to determine if the statute is divisible, warranting the 

application of the modified categorical approach. Here, Mora-Rivera waived the 

issue of divisibility because he did not raise it in his opening brief. See United 

States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). He further conceded in his 

reply brief that the statute is divisible. We decline to exercise our discretion to 

review this waived issue. Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 

1146, 1148 (9th Cir. 2016). Thus we assume, without deciding, that California 

Penal Code § 451(d) is divisible and apply the modified categorical approach. We 
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examine “a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what crime, with what 

elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 

2249 (2016).

Mora-Rivera argues that the record does not establish which alternative 

element—arson to property belonging to himself or arson to property not 

belonging to himself—he pleaded to. Mora-Rivera claims that he did not stipulate 

to any facts underlying his conviction for two reasons: (1) defense counsel stated 

“Yes, on that basis, People versus West” when the court asked if Mora-Rivera

stipulated to the factual basis for his plea, and (2) the § 451(d) count was 

handwritten on to the original charging document without the addition of a new, 

separate factual basis for the new, lesser charge. 

People v. West, 477 P.2d 409, 411 (Cal. 1970), held that a defendant may 

plead nolo contendere to a lesser offense reasonably related to the crime charged. 

Counsel’s reference to West—which permitted his client to plead to a lesser related 

charge—does not invalidate Mora-Rivera’s agreement to stipulate to the only 

factual basis presented—the one included in the original charging document. The 

original charging instrument’s factual basis alleged that Mora-Rivera committed 

arson against “an inhabited structure and inhabited property[.]" During the plea 
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colloquy, the district court also identified that Mora-Rivera’s crime had a victim, a

motel, to which Mora-Rivera must pay restitution and which he must avoid. Those 

documents are sufficient to establish that Mora-Rivera was convicted of arson to 

the property of another.

Thus, the district court did not err in concluding that Mora-Rivera's arson 

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

AFFIRMED.