UNITED STATES v. REYES

No. 19-50295.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANUEL VALDOVINOS REYES, AKA Carlos Cepeda, AKA Manuel Reyes, AKA Manuel Valdovinos, AKA Manuel Reyes Valdovinos, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed May 9, 2022.


NOT FOR PUBLICATION

MEMORANDUM*

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, 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-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.

FootNotes


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

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