                              NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                             FOR THE NINTH CIRCUIT
                                                                            JUN 20 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
FERNANDO GONZALEZ-                      )     No. 15-71755
RAMIREZ,                                )
                                        )     Agency No. A090-191-186
             Petitioner,                )
                                        )     MEMORANDUM*
             v.                         )
                                        )
JEFFERSON B. SESSIONS III,              )
Attorney General,                       )
                                        )
             Respondent.                )
                                        )

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                           Argued and Submitted June 4, 2018
                                 Pasadena, California

Before: FERNANDEZ and CHRISTEN, Circuit Judges, and MARSHALL,**
District Judge.

      Fernando Gonzalez-Ramirez, a native and citizen of Mexico and lawful

permanent resident of the United States petitions for review of the Board of


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Consuelo B. Marshall, United States District Judge for the
Central District of California, sitting by designation.
Immigration Appeals’ (BIA) determination that he was ineligible for cancellation

of removal1 because he was convicted of a crime of violence.2 We grant the

petition and remand.3

      Gonzalez was convicted of the crime of discharging a firearm at an

unoccupied motor vehicle. See Cal. Penal Code § 247(b). We have previously

held that discharging a firearm at an occupied motor vehicle4 is not a categorical

crime of violence under § 16 because a person’s merely reckless actions5 are

sufficient to support a conviction for that crime. Covarrubias Teposte, 632 F.3d at

1052–55;6 see also Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S. Ct. 377, 383, 160 L.

      1
          8 U.S.C. § 1229b(a).
      2
          See id. § 1101(a)(43)(F); see also 18 U.S.C. § 16 (hereafter “§ 16”).
      3
       We note that we do not owe the BIA deference regarding the construction
and application of § 16 to state statutes. See Covarrubias Teposte v. Holder, 632
F.3d 1049, 1052 (9th Cir. 2011).
      4
          Cal. Penal Code § 246.
      5
       See People v. Overman, 126 Cal. App. 4th 1344, 1356–57, 24 Cal. Rptr. 3d
798, 805–06 (2005); People v. Cruz, 38 Cal. App. 4th 427, 432–33, 45 Cal. Rptr.
2d 148, 151 (1995); People v. Chavira, 3 Cal. App. 3d 988, 993, 83 Cal. Rptr. 851,
854–55 (1970).
      6
        We recognize that Covarrubias Teposte relied upon § 16(b) when it decided
that section 246 was not a crime of violence, and that the Supreme Court has now
indicated that § 16(b) is void for vagueness. See Sessions v. Dimaya, __ U.S. __,
__, 138 S. Ct. 1204, 1223, __ L. Ed. 2d __ (2018). However, our holding was
based upon the fact that reckless use of force was sufficient to support a conviction
                                                                         (continued...)

                                            2
Ed. 2d 271 (2004);7 The BIA erred when it relied upon a contrary authority8 which

had been superseded.9 Because the crime of discharging a firearm at an

unoccupied motor vehicle is structured almost exactly like the crime of discharging

it at an occupied motor vehicle, the same analysis applies to each of them mutatis

mutandis, and the result is also that California Penal Code section 247(b) is not a

crime of violence.

      Specifically, just as section 246 is a general intent crime,10 so too is section




      6
        (...continued)
under section 246. Covarrubias Teposte, 632 F.3d at 1053–54; see also United
States v. Narvaez-Gomez, 489 F.3d 970, 976–77 (9th Cir. 2007). The basis of that
holding would preclude coverage under § 16(a) as well. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1129–30, 1132 (9th Cir. 2006) (en banc).
      7
       We are also aware of Voisine v. United States, __ U.S. __, 136 S. Ct. 2272,
195 L. Ed. 2d 736 (2016). However, that Supreme Court decision does not affect
our § 16(a) case law. See id. at __, 136 S. Ct. at 2280 n.4. Thus, our § 16(a) cases
remain the law of this circuit. See Rodriguez v. AT & T Mobility Servs. LLC, 728
F.3d 975, 979 (9th Cir. 2013).
      8
       United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir.), amended by
415 F.3d 977 (9th Cir.), amended by 425 F.3d 547 (9th Cir. 2005).
      9
          See Narvaez-Gomez, 489 F.3d at 976 n.3.
      10
           See Overman, 126 Cal. App. 4th at 1357, 24 Cal. Rptr. 3d at 806.

                                           3
247(b) a general intent crime.11 Thus, both crimes require willful12 action (the

discharge of a firearm at a motor vehicle).13 The jury instructions that California

courts are “strongly encouraged”14 to use indicate that the mens rea for both crimes

includes willful shooting of a firearm at a motor vehicle.15 And while the penalties

differ,16 those for violating section 246 can be materially greater than those for

violating section 247(b). In fine, common sense would lead to the conclusion that

it would be strange indeed if a person was eligible for cancellation of removal if he

had discharged a firearm at an occupied vehicle, but was not eligible if he had

discharged one at an unoccupied vehicle. There is no basis for holding that the law

applicable here fails to accord with common sense.



      11
        See People v. Rubalcava, 23 Cal. 4th 322, 328, 1 P.3d 52, 56, 96 Cal. Rptr.
2d 735, 739 (2000).
      12
        We note that willful implies that the person “knows” and “intends to do
what he is doing.” People v. Jerry R. (In re Jerry R.), 29 Cal. App. 4th 1432, 1438,
35 Cal. Rptr. 2d 155, 160 (1994).
      13
        Section 246 adds “maliciously” as a requisite for conviction, but that is not
relevant for our purposes in this case.
      14
       See Cal. R. Ct. 2.1050(e); see also People v. Simmons, 233 Cal. App. 4th
1458, 1477, 183 Cal. Rptr. 3d 597, 613 (2015).
      15
      See CALCRIM No. 965; CALCRIM No. 966; see also CALJIC No. 9.03;
CALJIC No. 9.03.2.
      16
         The penalty for violation of section 246 is explicitly set forth in the section
itself. The penalty for violating section 247(b) is set forth in the section and at
California Penal Code sections 17(a), 1170(h).

                                            4
      Thus, because his conviction for violation of section 247(b) does not render

Gonzalez ineligible for cancellation of removal, we grant the petition and remand

for further proceedings consistent with this disposition.

      Petition GRANTED and REMANDED.




                                          5
                                                                             FILED
Gonzalez-Ramirez v. Sessions, 15-71755
                                                                              JUN 20 2018
CHRISTEN, Circuit Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I concur in the court’s memorandum disposition, and only write to explain

that, in my view, three considerations drive this result. First, California Penal

Code § 247(b), like § 246, is a general intent crime that includes “no further mental

state beyond willing commission of the act proscribed by law,” People v.

Rubalcava, 23 Cal. 4th 322, 328 (2000), a standard that encompasses recklessness.

Second, as the court’s memorandum disposition notes, our caselaw requires that to

constitute a “crime of violence” under 18 U.S.C. § 16(a), an offense must involve

intentional (not merely reckless) conduct. See Fernandez-Ruiz v. Gonzalez, 466

F.3d 1121, 1130 (9th Cir. 2006) (en banc). Finally, the Supreme Court’s recent

decision in Voisine v. United States expressly left open the question whether

§ 16(a) includes reckless behavior. 136 S. Ct. 2272, 2280 n.4 (2016). Because

Cal. Penal Code § 247(b), the statute of conviction in this case, prohibits a broader

array of conduct than the federal statute, § 247(b) does not constitute a categorical

crime of violence under 18 U.S.C. § 16(a).
