UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50146

Plaintiff-Appellee, D.C. No. 3:21-cr-02349- v. TWR-1 MELCHOR OROZCO-OROZCO, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted August 15, 2023 Pasadena, California

Filed March 12, 2024

Before: Kim McLane Wardlaw, Morgan Christen, and Jennifer Sung, Circuit Judges.

Opinion by Judge Christen 2 USA V. OROZCO-OROZCO

SUMMARY *

Criminal Law

In a case in which Melchor Orozco-Orozco was convicted of being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326, the panel affirmed the district court’s order denying Orozco’s motion to dismiss his indictment on equal protection grounds, reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings. Orozco conceded that his equal protection argument is foreclosed by United States v. Carillo-Lopez, 68 F.4th 1133 (9th Cir. 2023). Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA) because it qualifies as a “crime of violence.” Orozco argued that his carjacking conviction does not qualify as an aggravated felony under the INA because § 215 is not a categorical match for a “theft offense.” The California Supreme Court has held that a person can commit § 215 carjacking without the intent to steal required by a generic theft offense, see People v. Montoya, 94 P.3d 1098, 1100 (Cal. 2004), and this court is bound by the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. OROZCO-OROZCO 3

California Supreme Court’s statement of the elements of § 215, see Johnson v. United States, 559 U.S. 133, 138 (2010). The panel therefore concluded that Orozco’s 2005 carjacking conviction is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA. The panel remanded for the district court to consider in the first instance whether Orozco has satisfied all three prongs of § 1326(d)(1)-(3).

COUNSEL Jami S. Johnson (argued) and Kara Hartzler, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. Mark R. Rehe (argued), Assistant United States Attorney; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; Office of the United States Attorney, United States Department of Justice, San Diego, California; for Plaintiff-Appellee. 4 USA V. OROZCO-OROZCO

OPINION CHRISTEN, Circuit Judge:

Melchor Orozco-Orozco appeals his conviction for being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326. Orozco 1 was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA) because it qualifies as a “crime of violence.” In this proceeding, Orozco filed a motion to dismiss the § 1326 charge, claiming that the prior removal o