                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 21 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50029

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04668-GPC-1

 v.
                                                 MEMORANDUM*
FRANCISCO RODRIGUEZ-GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                         Argued and Submitted April 7, 2015
                                Pasadena, California

Before: D.W. NELSON, REINHARDT, and M. SMITH, Circuit Judges.

      Appellant Francisco Rodriguez-Garcia appeals the denial of a motion to

dismiss his indictment for unlawful reentry of a previously removed alien in

violation of 8 U.S.C.§ 1326(a) and (b). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      In 2004, Appellant was convicted of aiding and abetting attempted murder in

violation of California Penal Code § 664-187(a). Appellant was subsequently

removed on the grounds that he was not a United States citizen or legal permanent

resident and had been convicted of attempted murder, an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(A, F, U). In 2012, Appellant was found illegally

entering the United States and convicted of unlawful reentry of a previously

removed alien.

      Pursuant to 8 U.S.C. § 1326(d), Appellant brings a collateral challenge to the

removal order underlying his § 1326 conviction. 8 U.S.C. § 1326(d)(3). Appellant

argues his attempted murder conviction falls outside the federal definition of an

aggravated felony because California’s application of the natural and probable

consequences doctrine is broader than the generic definition of aiding and abetting.

See United States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir. 2008) (per

curiam) (a state offense falls within the definition of an aggravated felony if the

conduct prescribed by the state statute of conviction falls within the generic

definition of the offense).

      California’s application of the natural and probable consequences doctrine to

attempted murder is not, alone, sufficient to render that statute over broad.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190–91 (2007). Appellant has not


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shown there is something “special” about California’s version of the natural and

probable consequences doctrine and the way it is applied to attempted murder. Id.

at 191. Although California does apply the natural and probable consequences

doctrine to attempted murder in gang-related cases, Appellant has not shown that

the way the doctrine is applied in such cases “criminalizes conduct that most other”

jurisdictions would not consider attempted murder. Id. Accordingly, Appellant’s

conviction for aiding and abetting attempted murder qualifies as an aggravated

felony, and the removal order underlying his § 1326 conviction is valid.

      AFFIRMED.




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