                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MANUEL WALDO GONZALEZ-                           No. 07-74946
LEYTON,
                                                 Agency No. A073-809-412
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                             Argued December 8, 2009
                            Submitted October 26, 2012
                               Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.


       Manuel Waldo Gonzalez-Leyton’s (“Gonzalez-Leyton”), a native and citizen

of Nicaragua admitted to the United States in December 2001, petitions for review

of the Board of Immigration Appeals (“BIA”)’s decision finding him removable



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and ineligible for cancellation of removal. We grant his petition and remand to the

BIA for further proceedings consistent with this memorandum.

      Following a plea of nolo contendere, Gonzalez-Leyton was convicted of

unlawfully exhibiting, drawing, and using a deadly weapon in a fight and quarrel in

violation of California Penal Code section 417(a)(1) with a special gang-related

allegation under California Penal Code section 186.22(d), and sentenced to two

years in prison. Section 417(a)(1) punishes any person “who, except in self-

defense, in the presence of any other person, draws or exhibits any deadly weapon

whatsoever, other than a firearm, in a rude, angry or threatening manner, or who in

any manner, unlawfully uses a deadly weapon other than a firearm in any fight or

quarrel,” while section 186.22(d) provides for higher alternate penalties where a

person commits a crime “for the benefit of, at the direction of or in association

with, any criminal street gang with the specific intent to promote, further, or assist

in any criminal conduct by gang members.” The information charging Gonzalez-

Leyton conjunctively alleged that he “did unlawfully, in the presence of another,

draw and exhibit a deadly weapon in a rude, angry and threatening manner and did

use a deadly weapon in a fight and quarrel.” (emphasis added).

      On the basis of that conviction, the Department of Homeland Security

(“DHS”) initiated removal proceedings against Gonzalez-Leyton, charging him as


                                           2
removable under 8 U.S.C. § 1227(a)(2)(A)(i) and (iii) for having been convicted of

a crime involving moral turpitude and an aggravated felony. The Immigration

Judge (“IJ”) concluded that Gonzalez-Leyton’s conviction and sentence constituted

an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(F), because it qualified

as a “crime of violence” for which the term of imprisonment was at least one year,

and ordered Gonzalez-Leyton removed to Nicaragua.1 The BIA summarily

affirmed.

       Gonzalez-Leyton first argues that he was not convicted of a crime “for

which the term of imprisonment [is] at least one year” because section 417(a)(1)

authorizes a maximum sentence of six months, see Cal. Penal Code §§ 19,

417(a)(1), and he received a two-year sentence only because he admitted the

special allegation under section 186.22(d), which imposes higher alternate

penalties for gang-related crimes. We disagree. Because Gonzalez-Leyton

admitted the section 186.22 allegation, he was “convicted” for purposes of the

“aggravated felony” definition’s one-year requirement. See In re Martinez-Zapata,

24 I. & N. Dec. 424, 426 (BIA 2007). Moreover, because the § 186.22(d)

allegation related to the specific characteristics of the offense, we consider the


      1
        Because the aggravated felony conviction was sufficient to render
Gonzalez-Leyton removable, the IJ declined to consider whether Gonzalez-
Leyton’s conviction also qualifies as a crime involving moral turpitude.

                                           3
alternate penalties resulting from section 186.22(d) for purposes of determining

whether Gonzalez-Leyton was convicted of a crime for which the term of

imprisonment was at least one year. See United States v. Moreno-Hernandez, 419

F.3d 906, 914 (9th Cir. 2005).

      Gonzalez-Leyton next argues that he was not convicted of a “crime of

violence” under 18 U.S.C. § 16(b).2 We reject Gonzalez-Leyton’s argument that

his crime does not meet the § 16(b) definition because it is not a “felony.”

Although section 417(a)(1) specifically provides that a person who violates it “is

guilty of a misdemeanor,” see Cal. Penal Code § 417(a)(1), the special allegation

under section 186.22(d) rendered the crime a “wobbler” that can qualify as either a

felony or a misdemeanor, depending on the sentence actually imposed. See Lopez

v. Superior Court, 72 Cal. Rptr. 3d 929, 933 (Cal. Ct. App. 2008). Because

Gonzalez-Leyton was sentenced to two years in state prison, his conviction was a

felony. See Cal. Penal Code § 17(b); United States v. Robles-Rodriguez, 281 F.3d

900, 904 (9th Cir. 2002).

      Gonzalez-Leyton further argues that his nolo contendere plea to the

conjunctively-charged information admitted only enough allegations to support a


      2
         The government concedes that Gonzalez-Leyton’s conviction does not
satisfy 18 U.S.C. § 16(a) because it does not have as an element the use, attempted
use, or threatened use of physical force.

                                          4
conviction. We agree. Applying the modified categorical approach,3 see United

States v. Aguila-Montes de Oca, 655 F.3d 915, 920-22 (9th Cir. 2011) (en banc)

(per curiam), “a guilty plea to a conjunctively phrased charging document

establishes only the minimal facts necessary to sustain a defendant’s conviction.”

See Young v. Holder, — F.3d —, 2012 WL 4074668, at *1 (9th Cir. Sept. 17,

2012) (en banc); see id., at *6-8. Accordingly, Gonzalez-Leyton was convicted

only of “draw[ing] or exhibit[ing] a[] deadly weapon . . . other than a firearm, in a

rude, angry or threatening manner,” Cal. Penal Code § 417(a)(1), and the IJ’s

contrary conclusion was premised on case law now superseded by our decision in

Young v. Holder.

      We therefore grant Gonzalez-Leyton’s petition, and we remand so that the

BIA may determine, in the first instance, whether Gonzalez-Leyton’s crime of

conviction qualifies as an aggravated felony crime of violence under § 16(b)

applying United States v. Aguila-Montes de Oca and Young v. Holder.

      GRANTED and REMANDED.




      3
         In its initial brief on appeal, the government conceded that a conviction
under section 417(a)(1) did not categorically qualify as a crime of violence.
Although we are not bound to accept a concession on a matter of law, see United
States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987), we accept the government’s
concession for purposes of this disposition.

                                          5
