United States v. Gonzalez-Reyes

── United States v. Gonzalez-Reyes ── Court: Court of Appeals for the Ninth Circuit Date: April 15, 2026 Category: General FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-3532 D.C. No. Plaintiff - Appellee, 3:23-cr-00202- TWR-1 v. HIGINIO ALEJANDRO OPINION GONZALEZ-REYES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding Argued and Submitted November 18, 2025 Pasadena, California Filed April 15, 2026 Before: Jay S. Bybee, Kenneth K. Lee, and Ana de Alba, Circuit Judges. Opinion by Judge Lee; Dissent by Judge de Alba 2 USA V. GONZALEZ-REYES SUMMARY * Criminal Law The panel affirmed the district court’s denial of Higinio Gonzalez-Reyes’ motion to dismiss a criminal charge under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States. Gonzalez-Reyes claimed that his state conviction for rape under California Penal Code § 261(a)(2)—which was the predicate act for his removal—is not an aggravated felony under the Immigration and Nationality Act, and that because he was allegedly wrongfully removed, he cannot be charged with criminal reentry. The panel held that even if Gonzalez-Reyes satisfied the first two prongs of the collateral attack provisions of 8 U.S.C. § 1326(d) (exhaustion and deprivation of review), he did not meet his burden to prove that his removal was “fundamentally unfair” under the third prong. The panel assumed for the categorical approach analysis that Section 261(a)(2) criminalizes rape committed through non-physical deprivation of consent, and held that the generic federal definition of rape, which encompasses rape by non-physical duress, is a categorical match with Section 261(a)(2). That means Gonzalez-Reyes’ state rape conviction is a valid predicate offense to qualify him as an aggravated felon under federal law. Because Gonzalez- Reyes was convicted of an aggravated felony, he cannot * 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. GONZALEZ-REYES 3 show “fundamental unfairness” under 8 U.S.C. § 1326(d)(3), and his collateral attack on his order of removal fails. Dissenting, Judge de Alba disagreed with the majority’s holding that the generic federal definition of rape includes rape by non-physical threats. She wrote that Cal. Penal Code § 261(a)(2) is not a categorical match to its federal analogue, rendering Gonzalez-Reyes’ predicate removal order “fundamentally unfair” under Section 1326(d)(3). Because Gonzalez-Reyes also satisfies the procedural requirements in Sections 1326(d)(1) and (d)(2), she would reverse the denial of his motion to dismiss the indictment. COUNSEL Andrew Y. Chiang (argued) and Julie A. Bauman, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam Gordon, United States Attorney; Office of the United States Attorney, United States Department of Justice, San Diego, California; for Plaintiff-Appellee. Lynette M. Belsky (argued), Assistant Federal Public Defender, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. 4 USA V. GONZALEZ-REYES OPINION LEE, Circuit Judge: Angry that his girlfriend might end their relationship, Higinio Gonzalez-Reyes strangled and raped her in view of her two young children. A jury convicted him of rape, false imprisonment by menace or violence, and