In United States v. Alvarez, --- F.4th ---, No. 21-50088 (9th Cir. 2023), a case out of the SDCA, the Court affirmed the district court's denial of a 1326(d) motion.
Alvarez moved to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326, arguing that the underlying removal order was fundamentally unfair because his prior assault conviction under section 2903.13(A) of the Ohio Revised Code was not a crime of violence and thus not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). The district court denied the motion, concluding the Ohio offense was an aggravated felony. The Ninth Circuit agreed.
First, as to mens rea, it held that “knowledge” is sufficient to satisfy the crime of violence definition as a whole, including “attempted uses” of physical force. Accordingly, the knowledge mens rea requirement (as opposed to a specific intent requirement) for attempt under section 2903.13(A) does not make it overbroad.
Second, as to the amount of force required under the Ohio statute, the Court determined that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury, and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel therefore concluded that section 2903.13(a) is a crime of violence under § 16(a), it thus qualifies as an aggravated felony under § 1101(a)(43)(F), and Alvarez’s removal order was not fundamentally unfair.
