United States v. Manuel Reyes

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2022
• Docket: 19-50295
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50295

Plaintiff-Appellee, D.C. No. 5:18-cr-00328-MWF-1 v.

MANUEL VALDOVINOS REYES, AKA MEMORANDUM* Carlos Cepeda, AKA Manuel Reyes, AKA Manuel Valdovinos, AKA Manuel Reyes Valdovinos,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted October 20, 2021 Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and AMON,** District Judge.

Manuel Valdovinos Reyes appeals his conviction and sentence for illegal

reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. and we affirm in part, vacate in part, and remand for the limited purpose of

permitting the district court to reconsider the conditions of supervised release.

1. Aggravated Felony. Reyes argues that his illegal reentry conviction is

invalid because his prior Illinois conviction for attempted murder was not an

aggravated felony. To determine whether a state conviction for attempted murder

qualifies as an “aggravated felony” under 8 U.S.C. § 1227, we compare the

underlying statute of conviction with its federal equivalent to determine whether

they are a categorical match. See Moncrieffe v. Holder, 569 U.S. 184, 190 (2013); 8

U.S.C. §§ 1101(a)(43)(A), (U) (designating attempted murder as an aggravated

felony).

In this case, Reyes’s state conviction for attempted murder is a categorical

match to its federal equivalent. Both require that a “substantial step” be taken with

specific intent to commit murder. 720 Ill. Comp. Stat. 5/8-4(a); 720 Ill. Comp. Stat.

5/9-1; United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en

banc). While first-degree murder in Illinois also encompasses felony murder, 720

Ill. Comp. Stat. 5/2-8, where the federal definition does not, it is a legal impossibility

that Reyes’s conviction was premised on felony murder because Illinois felony

murder is incompatible with a conviction for an attempt crime. People v. Viser, 343

N.E.2d 903, 910 (Ill. 1975); see United States v. Gomez-Hernandez, 680 F.3d 1171,

1172–77 (9th Cir. 2012) (“[I]gnor[ing] his crime of conviction” is a “hyper-

2 formalistic approach” that inappropriately overlooks the “context of the defendant’s

actual crime of conviction.”).1 Therefore, we conclude that Reyes’s prior state

conviction was a proper predicate offense for removal, and we affirm his conviction

for illegal reentry.

2. Terms of Supervised Release. As part of Reyes’s sentence, the district

court imposed a term of supervised release, including Standard Condition 14 that

requires Reyes to “notify specific persons and organizations of specific risks” he

poses to those persons or organizations at his probation officer’s direction. We have

held that this standard condition is unconstitutionally vague because it fails to

“answer the question of what conduct the defendant needed to warn the public

about.” United States v. Magdirila, 962 F.3d 1152, 1158 (9th Cir. 2020).

Consequently, we vacate this condition of release and remand for the district court

to “craft a supervised release condition that accords with [Reyes’s] criminal history.”

Id. at 1159.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

1 Because we conclude that Reyes’s state attempted murder conviction is an aggravated felony, we need not analyze the government’s argument that it also constitutes an aggravated felony as a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F).