United States v. Carlos Mejia-Quintanilla

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2021
• Docket: 17-15899
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 30 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-15899

Plaintiff-Appellee, D.C. Nos. 3:16-cv-03591-CRB 3:11-cr-00293-CRB-2 v.

CARLOS MEJIA-QUINTANILLA, AKA MEMORANDUM* Wilfredo Oliva-Castro, AKA Sleepy,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 2, 2021 Submission Vacated February 3, 2021 Resubmitted August 26, 2012 San Francisco, California

Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.

Carlos Mejia-Quintanilla appeals the district court’s denial of his amended

motion to vacate his conviction and sentence under 28 U.S.C. § 2555. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction under 28 U.S.C. §§ 1291, 2253, 2255(d), and we vacate Mejia-

Quintanilla’s conviction and sentence under 18 U.S.C. § 924(j)(1).

In pleading guilty to Count 5 of the Superseding Indictment (a violation of

18 U.S.C. § 924(j)(1) and (2)), Mejia-Quintanilla admitted to committing the crime

of violence charged in Count 3 of the Superseding Indictment, namely murder in

violation of section 187 of the California Penal Code. This admission addressed an

element of an offense under 18 U.S.C. § 924(j)(1), that the defendant was “in the

course of a violation of [18 U.S.C. § 924(c)].” In turn, an element of a violation of

18 U.S.C. § 924(c) is that the defendant used or carried a firearm “during and in

relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A). The term “crime of

violence” is defined in the elements clause of 18 U.S.C. § 924(c)(3)(A) as having

“an element the use, attempted use, or threatened use of physical force against the

person or property of another.” Under recent case law, murder in violation of

section 187 of the California Penal Code is not a crime of violence for purposes of

18 U.S.C. § 924(c). This is because a conviction for an offense with a mens rea of

recklessness does not constitute a crime of violence under the elements clause of

28 U.S.C. § 924(c)(3)(A), see United States v. Begay, 934 F.3d 1033, 1041 (9th

Cir. 2019); see also Borden v. United States, 141 S. Ct. 1817, 1834 (2021), and

section 187 of the California Penal Code permits conviction if a defendant is found

2 to have a mens rea of recklessness. Cal. Penal Code § 188(a) (murder conviction

under section 187 may be based on “express” or “implied” malice); People v

Elmore, 59 Cal. 4th 121, 133 (2014) (“Malice is implied when an unlawful killing

. . . [is] performed with conscious disregard” for danger to human life); People v.

Scott, 14 Cal. 4th 544, 554 (1996) (Mosk, J., concurring) (implied malice “may

tolerably be identified as recklessness”). For purposes of the mens rea element,

section 187 is not divisible. See People v. Brown, 35 Cal. App. 4th 708, 714

(1995).

Given this precedent, Mejia-Quintanilla’s violation of section 187 was not a

crime of violence. Therefore, Mejia-Quintanilla could not have violated 18 U.S.C.

§ 924(c) because that section requires a predicate crime of violence. In turn,

Mejia-Quintanilla’s offense under 18 U.S.C. § 924(j)(1) was not “in the course of a

violation of [18 U.S.C. § 924(c)],” and he is therefore actually innocent of a

violation of 18 U.S.C. § 924(j).

We reject the government’s argument that the mens rea requirement for

California murder is irrelevant to our inquiry because Mejia-Quintanilla was

charged with Violent Crimes in Aid of Racketeering (VICAR) murder, which

punishes generic federal murder (18 U.S.C. § 1111). The government structured

the indictment so that the “crime of violence” element of 18 U.S.C. § 924(c)(1)(A)

3 (which is an element of a 18 U.S.C. § 924(j)(1) offense) was based on the charge

of murder in violation of section 187 of the California Penal Code, and not a

murder in violation of 18 U.S.C. § 1111.

In light of this conclusion, Mejia-Quintanilla has not waived his right to

collaterally attack his conviction and sentence, despite the appeal waiver included

in his plea agreement, because his conviction and sentence of an offense under 18

U.S.C. § 924(j)(1) are illegal. See United States v. Torres, 828 F.3d 1113, 1125

(9th Cir. 2016). Moreover, Mejia-Quintanilla is also excused from his procedural

default of this claim (due to his failing to raise it in a direct appeal), because he has

established that, “in light of subsequent case law . . . he cannot, as a legal matter,

have committed the alleged crime.” Vosgien v. Persson, 742 F.3d 1132, 1134 (9th

Cir. 2014).

We therefore order Mejia-Quintanilla’s conviction and sentence under 18

U.S.C. § 924(j)(1) vacated and the matter remanded for further proceedings.1

VACATED and REMANDED.2

1 Because we decide on this ground, we do not consider Mejia-Quintanilla’s other arguments for relief. 2 Costs shall be taxed against the government. 4