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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
--------------------------------------------------------------------------------
 Case Name:
USA V CORONA-SANCHEZ 
Case Number: Date Filed: 
98-50452 12/8/00 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,                                   No. 98-50452

v.                                                    D.C. No.
                                                     CR-98-00025-WBE
MOSES CORONA-SANCHEZ, aka
Enrique Sanchez-Corona,                               OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
William B. Enright, District Judge, Presiding

Submitted July 15, 19991
Pasadena, California

Filed December 8, 2000

Before: Melvin Brunetti, Pamela Ann Rymer, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Brunetti

_________________________________________________________________

1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a) (2).


COUNSEL

Wendy S. Gerboth, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

Jacqueline J. Jackson, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.

_________________________________________________________________

OPINION

BRUNETTI, Circuit Judge:

Moses Corona-Sanchez pled guilty to illegally reentering
the United States after deportation in violation of 8 U.S.C.
S 1326(a) and (b)(2). He received a 77-month sentence, which
reflects a sixteen-level enhancement of the base offense level,
based on the district court's finding that Corona-Sanchez
reentered the United States after deportation and the commis-
sion of aggravated felony pursuant to 8 U.S.C. S 1326(b)(2)
and United States Sentencing Guideline S 2L1.2(b)(1)(A).
Corona-Sanchez challenges whether his conviction under Cal-
ifornia Penal Code SS 488 and 666 constitutes an "aggravated

                               15725

felony" as that term is defined in 8 U.S.C. S 1101(a)(43)(G).
We review de novo to determine whether the aggravated fel-
ony provision is applicable. United States v. Ceron-Sanchez,
222 F.3d 1169, 1172 (9th Cir. 2000). We conclude that it is
and affirm.

I.

As an initial matter, we note that in February 1998, Corona-
Sanchez pled guilty to a one-count indictment which charged
him with a violation of both 8 U.S.C. 1326(a) (being an alien
found in the United States after deportation) and 8 U.S.C.
S 1326(b)(2) (reentry after deportation and the commission of
an aggravated felony). At that time, we considered
S 1326(b)(2) to be a separate offense. See United States v.
Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir. 1992). Shortly
after Corona-Sanchez's plea, the Supreme Court held that the
fact of a prior aggravated felony conviction is not an element
of the offense, but a sentencing factor to be applied by the
court. See Almendarez-Torres v. United States , 523 U.S. 224,
226 (1998).

We recently confronted this precise factual situation in
United States v. Rivera-Sanchez, 222 F.3d 1057, 1061-62 (9th
Cir. 2000). There we held that where an indictment charges
a defendant with a violation of both S1326(a) and
S 1326(b)(2) in the same count, and the judgment reflects
conviction under both provisions, "the proper procedure under
these circumstances is to direct the district court to enter a
corrected judgment striking the reference to S 1326(b)(2) so
that the judgment will unambiguously reflect that the defen-
dant was convicted of only one punishable offense pursuant
to S 1326(a)." Id.; see also United States v. Herrera-Blanco,
No. 98-30342, 2000 WL 1693240 (9th Cir. Nov. 14, 2000)
(sua sponte remanding to the district court with directions to
correct the judgment of conviction to exclude a reference to
8 U.S.C. S 1326(b)(2)). We shall do so here. We are left with
Corona-Sanchez's challenge to his sentence.

                               15726

II.

Corona-Sanchez is a citizen of Mexico who first came to
the United States in 1988. His presentence report shows that
he has been deported eighteen times since 1993. The report
also lists at least ten occasions on which Corona-Sanchez was
arrested for various crimes after his numerous reentries into
United States. These include: showing false identification to
a peace officer; being a minor in possession of alcohol; sec-
ond degree commercial burglary; petit theft; possessing a dan-
gerous weapon (brass knuckles); possession of cocaine;
obstruction of justice/resisting a peace officer; petit theft with
a prior; being under the influence of methamphetamine; con-
sumption of alcohol in a public place and possession of a
hypodermic needle.

In November 1997, Corona-Sanchez was deported and
again returned. He was arrested for felony DUI, driving with-
out a license, failing to drive on the right side of the road, and
failure to provide financial responsibility. Corona-Sanchez
was then taken into federal custody and was indicted on the
present charge of being a deported alien found in the United
States, in violation of 8 U.S.C. S 1326. He pled guilty in Feb-
ruary 1998 and was sentenced on June 29, 1998.

The United States Probation Office filed a presentence
report recommending that the district court increase Corona-
Sanchez's offense level by 16 levels under U.S.S.G.
S 2L1.2(b)(1)(A) based on Corona-Sanchez's conviction of an
"aggravated felony" following deportation. Corona-Sanchez
objected to the report and the enhancement. The district court
found that Corona-Sanchez qualified for the 16-level
enhancement and sentenced him to the lower end of the
guideline range, 77 months. Corona-Sanchez appeals, claim-
ing that the district court erred by treating his prior California
conviction for "petit theft with a prior" as an "aggravated fel-
ony" meriting a sentence enhancement.

                               15727

III.

[1] An alien who unlawfully reenters or remains in the
United States after deportation is subject to a substantial
increase in sentence if he previously was deported after hav-
ing been convicted of an "aggravated felony." See U.S.S.G.
S 2L1.2(b)(1)(A). Section 2L1.2 relies on 8 U.S.C.
S 1101(a)(43) for its definition of "aggravated felony." An
"aggravated felony" under S 1101(a)(43)(G) includes "a theft
offense (including receipt of stolen property) . . . for which
the term of imprisonment [is] at least one year."2 The Govern-
ment concedes that the "theft offense" at issue (petit theft with
a prior), which was treated as an "aggravated felony" under
Section 1101(a)(43) to support a sentencing enhancement
under U.S.S.G. S 2L1.2, involves a California conviction aris-
ing from Corona-Sanchez's attempt to steal a twelve pack of
beer and a pack of cigarettes from a grocery store. While this
crime constitutes a petit theft under Cal. Penal Code S 488,
Corona-Sanchez was sentenced under Cal. Penal CodeS 666
for "petit theft with a prior conviction."

Section S 666 is a sentencing enhancement provision, enti-
tled "Petit theft; prior conviction of certain offenses; punish-
ment." It provides that

      [e]very person who, having been convicted of petit
      theft, . . . and having served a term therefor in any
      penal institution or having been imprisoned therein
      as a condition of probation for that offense, is subse-
      quently convicted of petit theft, then the person con-
      victed of that subsequent offense is punishable by
      imprisonment in the county jail not exceeding one
      year, or in state prison.
_________________________________________________________________
2 Although the statute omits the operative verb, its footnote suggests that
the word "is" should precede "at least one year." See 8 U.S.C.
S 1101(a)(43)(G) n.2; see also Alberto-Gonzalez v. Immigration and Natu-
ralization Service, 215 F.3d 906, 909-10 (9th Cir. 2000).

                               15728

Id. Since Corona-Sanchez served 30 days in jail for a prior
petit theft, he qualified for a S 666 enhancement to "petit theft
with a prior" based on his subsequent petit theft, involving the
beer and cigarettes.

We must decide whether Corona-Sanchez's conviction
under California Penal Code SS 488 and 666 for "petit theft
with a prior" qualifies as an aggravated felony, requiring a
sixteen-level increase in sentence under U.S.S.G.
S 2L1.2(b)(1)(A). We hold that it does.

IV.

In order to determine whether Corona-Sanchez's conviction
for "petit theft with a prior" is an aggravated felony, we must
decide what Congress meant by the term "theft offense" in
Section 1101(a)(43)(G). Like many other terms in the same
statute, Congress did not define the terms "theft," "offense,"
or "theft offense." Nor did Congress cross-reference "theft
offense" with any other federal or state statute.

We have had occasion to interpret undefined terms in 8
U.S.C. S 1101(a)(43). For example, in United States v. Baron-
Medina, 187 F.3d 1144, 1146 (9th Cir. 1999), we were tasked
with defining the offense of "sexual abuse of a minor," which

constitutes an "aggravated felony" under S 1101(a)(43)(A).
There, we employed the ordinary, contemporary, and com-
mon meaning of the words that Congress used to interpret the
term. Id. We used the dictionary definition of "abuse" and the
common, everyday meanings of "sexual" and "minor" to con-
clude that a conviction under California Penal Code Section
288(a) (lewd or lascivious act on a minor) constitutes a con-
viction for "sexual abuse of a minor" within the meaning of
8 U.S.C. S 1101(a)(43). Id. at 1147.

In Ye v. Immigration and Naturalization Service , 214 F.3d
1128 (9th Cir. 2000), we considered whether the defendant's
conviction for "vehicle burglary" under California Penal Code

                               15729

S 459 qualified as a "burglary offense, " and thus, an "aggra-
vated felony" under 8 U.S.C. S 1101(a)(43)(G). Id. at 1131.
Congress did not define the terms "burglary" or "burglary
offense" under Section 1101(a)(43). However, we recognized
that the Supreme Court had previously addressed the meaning
of the term "burglary" contained in another statute in Taylor
v. United States, 495 U.S. 575 (1990).

In Taylor, the Supreme Court examined whether a defen-
dant's state conviction for "burglary" qualified him for a sen-
tence enhancement under 8 U.S.C. S 924(e) of the Career
Criminals Amendment Act of 1986. A person convicted under
the Act is subject to an enhancement in sentence if he also has
three prior convictions for specified offenses, including bur-
glary. See S 924(e)(1). The defendant contended that his Mis-
souri conviction for second-degree burglary did not qualify as
a "burglary" under the Act.

The Eighth Circuit disagreed, holding that "burglary" in
S 924(e) means "burglary" however a state chooses to define
it. Taylor, 495 U.S. at 579. On review, the Supreme Court
recognized the nationwide sentencing inequities which could
result from allowing such a course, and held that the word
burglary "must have some uniform definition independent of
the labels employed by the various States' criminal codes."
Id. at 592. The Court then crafted a uniform, generic defini-
tion of burglary, including each of the base elements. Thus,
after Taylor, a defendant's conviction for "burglary" under 8
U.S.C. S 924(e) does not qualify him for a sentence enhance-
ment unless his offense meets the uniform definition adopted
therein.

Taylor was decided before Congress added the term "bur-
glary offense" to the definition of aggravated felony in 1994.
Ye, 214 F.3d. at 1132. In the absence of legislative history to
the contrary, we assumed in Ye that Congress intended the
word "burglary" in Section 1101(a)(43)(G) to be interpreted
consistently with the Supreme Court's uniform definition of

                               15730

that term in Taylor. Applying that definition, we concluded
that Ye's conviction for vehicle burglary did not correspond.
Accordingly, Ye's prior conviction did not qualify as an
aggravated felony. Id. at 1133.3 

Baron-Medina and Ye take two different approaches to test-
ing a prior conviction for aggravated felony status. Baron-
Medina considered the ordinary meaning of the words "sexual
abuse of a minor" and tested whether the conduct reached by
the specific state statute at issue fell within the common,
everyday meanings of those words. Id. at 1147. Ye, on the
other hand, followed Taylor's approach by adopting a "uni-
form definition independent of the labels used by state codes"
for burglary, identical to the one in Taylor. In other words,
Baron-Medina did not set forth the elements or a "uniform
definition" of "sexual abuse of a minor."

This case is more like Ye (construing "burglary") than
Baron-Medina (construing "sexual abuse of a minor") since
"theft" is a more traditional crime containing distinct ele-
ments. However, the comprehensive crime of "theft " differs
from "burglary" because modern theft statutes encompass a
broader range of conduct. Because burglary is a discrete
offense, it lends itself to a narrow definition that may be "ap-
plied uniformly across the county, without regard to nuances
of state law." Id. (citing Kahn v. INS, 36 F.3d 1412, 1414 (9th
Cir. 1994)). "Theft," on the other hand, arises from an amal-
gam of common law crimes and has undergone many multi-
jurisdictional transmutations. As a result, it is considerably
more difficult to define the contours of a "theft offense."
_________________________________________________________________
3 In Ye, we did not comment on the effect of Congress's use of the word
"offense" in conjunction with the term "burglary" in 8 U.S.C.
S 1101(a)(43)(G). Nor did the Fifth and Seventh Circuits, which we joined
in adopting the Supreme Court's definition of "burglary" in Taylor for
purposes of Section 1101(a)(43)(G). See Lopez-Elias v. Reno, 209 F.3d
788, 791-92 (5th Cir. 2000); Solorzano-Patlan v. INS, 207 F.3d 869, 874-
75 (7th Cir. 2000).

                               15731

The contemporary crime of "theft" stems from the common
law crime of larceny. See Wayne R. LaFave, Criminal Law
S 8.1 (3d ed. 2000). At common law, a person committed lar-
ceny "when one person misappropriated another's property by
means of taking it from his possession without his consent."
Id. S 8.1(a). The elements of common law larceny include a
(1) trespassory (2) taking and (3) carrying away of the (4) per-
sonal property (5) of another (6) with intent to steal it. Id.
S 8.2. Historically, larceny was separate and distinct from the
common law crimes of embezzlement and false pretenses. Id.
S 8.1(b). Most modern codes have abolished the separate
crimes of larceny, embezzlement, and false pretenses in favor
of the comprehensive crime of "theft." Id. SS 8.2 n.1, 8.8.

We shall follow Taylor's approach in crafting a definition
of "theft offense." There, the Supreme Court traced the statu-
tory development of "burglary" and finally rested on a mod-
ern, generic definition "now used in the criminal codes in
most States." Id. at 598. In so doing, the Court rejected the
argument that "burglary" in S 924(e) should be accorded its
common-law meaning. Id. The Court was concerned that
employing such a definition would not comport with the pur-
poses of the enhancement statute because "[t]he arcane dis-
tinctions embedded in the common-law definition have little
relevance to modern law enforcement concerns." Id.

[2] Here, the same concerns are present. When Congress
passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub.L. No. 104-208 ("IIRIRA"),
it greatly expanded the immigration consequences of past
criminal conduct. Besides adding new crimes under the defi-
nition of "aggravated felony" in 8 U.S.C.S 1101(a)(43), it
"dramatically broadened the definition's reach by expanding
the terms of many offenses already denominated aggravated
felonies." Maria v. McElroy, 68 F.Supp.2d 206, 210
(E.D.N.Y. 1999). The provision of the statute at issue pro-
vides one such example. With regard to a theft or burglary
offense, Congress decreased the length of the sentence

                               15732

required to have been imposed for the predicate offense from
five years to one year. See IIRIRA S 321(a)(3). The effect of
this change is certainly far-reaching. In short, it is clear from
recent expansive legislation in this area that Congress
intended to sweep a broad range of offenses under the rubric
of "aggravated felony."

[3] In addition, Congress chose to use the term "theft
offense" in S 1101(a)(43)(G), as opposed to mere "theft." It
also expressly included the "receipt of stolen property" under
the definition of "theft offense." This lends additional weight
to our conclusion that Congress intended to paint "theft
offense" with a broad brush. In this vein, we agree with the
analysis set forth in United States v. Esparza-Ponce, 7
F.Supp.2d 1084, 1092 (S.D. Cal. 1998), which concludes that
the term "theft offense" under 8 U.S.C. S 1101(a)(43)(G) has
a broader meaning than the term "theft":

      Notably, Congress did not define an aggravated fel-
      ony as a "theft"--which would have been simple.
      Rather, Congress added the word "offense." If the
      term "theft" is coterminous with the phrase "theft
      offense," then the word "offense" is superfluous.
      Yet, "[a] statute should be construed so as to avoid
      making any word superfluous."

      The questions becomes, then, what the word "of-
      fense" adds to the term "theft." It certainly does not
      restrict or clarify the concept of theft, because all
      thefts are offenses. If the word "offense" does not
      restrict or clarify the word "theft," then it must
      broaden it. Thus, one most reasonably could read the
      statute as describing "an offense in the nature of a
      theft."

Id. at 1091-92 (citations omitted).

                               15733

[4] We think the definition of "theft offense" should derive
from the Model Penal Code, variations of which many states
have adopted. The Code reflects a common understanding of
the crime of "theft," and, we think, defines theft in a way that
captures the sentiment of Congress because it employs an
expansive definition. The Code sets forth eight types of theft
offenses: 1) theft by unlawful taking or disposition; 2) theft by
deception; 3) theft by extortion; 4) theft of property lost, mis-
laid, or delivered by mistake; 5) receiving stolen property; 6)
theft of services; 7) theft by failure to make required disposi-
tion of funds received; and 8) unauthorized use of automo-
biles and other vehicles. Model Penal Code SS 223.2-223.9.
Like in most jurisdictions, the Code consolidates the three
common law crimes of larceny, embezzlement, and false pre-
tenses into "theft." Because the Code's definitions of theft and
theft-related offenses are all-encompassing, we expect that
they will capture most "theft-related" crimes in most jurisdic-
tions, which allays any concern about uniformity in our fed-
eral immigration laws.4

V.

We now turn to Corona-Sanchez's predicate conviction to
determine whether it constitutes an aggravated felony.
Corona-Sanchez was convicted of "petit theft" under Califor-
nia law. California Penal Code S 486 divides "theft" into two
categories, "grand" and "petit." SectionS 487 defines "grand"
theft as involving the theft of money, labor, or real or personal
property with a value exceeding $400. Section 488 states that
"[t]heft in all other cases is petit theft. " Whether labeled
"petit" or "grand," both offenses rely on California Penal
Code Section 484(a), which defines "theft" as follows:
_________________________________________________________________
4 One other circuit has addressed the meaning of the term "theft offense"
under Section 1101(a)(43)(G). See United States v. Dabeit, 2000 WL
1634264, No. 00-10065, * 3 (5th Cir. Oct. 30, 2000). There, the Fifth Cir-
cuit adopted the Black's Law Dictionary definition of "theft" which is "the
act of stealing." Id. The Model Penal Code's definition is not contrary.

                               15734

      Every person who shall feloniously steal, take, carry,
      lead, or drive away the personal property of another,
      or who shall fraudulently appropriate property which
      has been entrusted to him, or who shall knowingly
      and designedly, by any false or fraudulent represen-
      tation or pretense, defraud any other person of
      money, labor or real property, or who causes or pro-
      cures others to report false of his wealth or mercan-
      tile character and by thus imposing upon any person,
      obtains credit and thereby fraudulently gets or
      obtains possession of money, or property or obtained
      for the labor or service of another, is guilty of theft.

Id.

[5] California's definition of theft substantially corresponds
to the theft-related offenses set forth in the Model Penal Code,
including theft by unlawful taking or disposition (S 223.2),
theft by deception (S 223.3), and theft of services (S 223.7).
Since the full range of conduct proscribed by California Penal
Code S 484(a) falls within the definition of "theft offense" as
set forth in this opinion, we conclude that a conviction arising
from Section 484(a) (including sections 487 and 488) quali-
fies as a "theft offense" under 8 U.S.C. S 1101(a)(43). Finally,
because Corona-Sanchez received a two year sentence under
California Penal Code S 666, his prior conviction qualifies as
an "aggravated felony." See Alberto-Gonzalez v. INS, 215
F.3d 906, 908 (9th Cir. 2000) (concluding that the phrase "for
which the term of imprisonment [is] at least one year" in sec-
tion 1101(a)(43)(G) refers to the actual sentence imposed for
the predicate conviction). Accordingly, the sentence is
affirmed. We remand for the limited purpose of directing the
district court to amend the judgment to reflect a conviction
under 8 U.S.C. 1326(a) only.

AFFIRMED in part; REMANDED in part.

                               15735

					


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