                           NOT FOR PUBLICATION                             FILED
                                                                           APR 23 2019
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 17-55055

             Plaintiff-Appellee,                D.C. No. 2:15 CV 05589-BRO
                                                         2:12 CR 00745-BRO
 v.

OMAR MORA-RIVERA, AKA Big                       MEMORANDUM*
Droops, AKA July Dominguez, AKA
Droops, AKA Droopy, AKA Mark
Jimenez, AKA Little Loco, AKA Omar
Mora, AKA Omar Jair Mora, AKA Omar
Jair Mora-Rivera, AKA Omar Mora Rivera,
AKA Omar J. Rodriguez

             Defendant-Appellant.


                         On Appeal from the United States
                District Court for the Central District of California
                 Honorable Beverly Reid O’Connell, Presiding

                      Argued and Submitted February 6, 2019

Before:      WARDLAW and BEA, Circuit Judges; and MURPHY, III,**
             District Judge

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Stephen J. Murphy, III, District Judge for the U.S.
District Court for the Eastern District of Michigan, sitting by designation.
      Omar Mora-Rivera (“Mora-Rivera”) appeals the district court’s order

denying his motion to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255. We granted him a certificate of appealability on the issue of

whether Mora-Rivera’s prior conviction under California Penal Code § 451(d)

(“arson conviction”) is properly considered a crime of violence under 18 U.S.C. §

16, and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) of the

Immigration and Nationality Act (“INA”). The certified question includes whether

California Penal Code § 451(d) is a divisible statute.

      Mora-Rivera argues that his arson conviction is not an aggravated felony for

two reasons: (1) California Penal Code § 451(d) is not categorically a crime of

violence under 18 U.S.C. § 16(a), and (2) under Dimaya v. Lynch, 803 F.3d 1110

(9th Cir. 2015), aff’d sub nom. Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the

“residual clause” in 18 U.S.C. § 16(b) is unconstitutionally vague. The district

court acknowledged Dimaya as binding precedent but ruled that Mora-Rivera’s

arson conviction was a crime of violence pursuant to 18 U.S.C. § 16(a) under the

modified categorical approach.

      A criminal offense constitutes a “crime of violence” if it “has as an element

the use, attempted use, or threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a). To determine whether a state offense


                                          2
qualifies as a crime of violence aggravated felony under the statute, we use the

categorical approach. Ramirez v. Lynch, 810 F.3d 1127, 1130–31 (9th Cir. 2016).

A state offense categorically qualifies as an aggravated felony only if its elements,

without any consideration of the facts underlying the individual case, are

necessarily “encompassed by the generic federal offense.” Id. at 1131 (quoting

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). As the district court correctly

concluded, California Penal Code § 451(d) is not a categorical match to a crime of

violence aggravated felony. Because § 451(d) encompasses burning one’s own

property if “there is an intent to defraud or there is injury to another,” it

encompasses a broader range of conduct than the federal definition under 18

U.S.C. § 16(a).

      The next step is to determine if the statute is divisible, warranting the

application of the modified categorical approach. Here, Mora-Rivera waived the

issue of divisibility because he did not raise it in his opening brief. See United

States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). He further conceded in his

reply brief that the statute is divisible. We decline to exercise our discretion to

review this waived issue. Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d

1146, 1148 (9th Cir. 2016). Thus we assume, without deciding, that California

Penal Code § 451(d) is divisible and apply the modified categorical approach. We


                                            3
examine “a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what crime, with what

elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243,

2249 (2016).

      Mora-Rivera argues that the record does not establish which alternative

element—arson to property belonging to himself or arson to property not

belonging to himself—he pleaded to. Mora-Rivera claims that he did not stipulate

to any facts underlying his conviction for two reasons: (1) defense counsel stated

“Yes, on that basis, People versus West” when the court asked if Mora-Rivera

stipulated to the factual basis for his plea, and (2) the § 451(d) count was

handwritten on to the original charging document without the addition of a new,

separate factual basis for the new, lesser charge.

      People v. West, 477 P.2d 409, 411 (Cal. 1970), held that a defendant may

plead nolo contendere to a lesser offense reasonably related to the crime charged.

Counsel’s reference to West—which permitted his client to plead to a lesser related

charge—does not invalidate Mora-Rivera’s agreement to stipulate to the only

factual basis presented—the one included in the original charging document. The

original charging instrument’s factual basis alleged that Mora-Rivera committed

arson against “an inhabited structure and inhabited property[.]" During the plea


                                          4
colloquy, the district court also identified that Mora-Rivera’s crime had a victim, a

motel, to which Mora-Rivera must pay restitution and which he must avoid. Those

documents are sufficient to establish that Mora-Rivera was convicted of arson to

the property of another.

      Thus, the district court did not err in concluding that Mora-Rivera's arson

conviction properly constituted a crime of violence under 18 U.S.C. § 16(a).
      AFFIRMED.




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