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                           United States Court of Appeals
                                   Tenth Circuit
                                    SEP 13 2001
                                   PATRICK FISHER
                                       Clerk                             PUBLISH
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
         UNITED STATES OF AMERICA,        
         v.                                          No. 01-4045
         EDGAR VASQUEZ-FLORES,  also known
         as Marcos Igali-Valdez,          

                              FOR THE DISTRICT OF UTAH
                              (D.C. No. 2:00-CR-355-C)
         Submitted on the briefs:
         Theodore R. Weckel, Springville, Utah, for Defendant-Appellant.
         Paul M. Warner, United States Attorney, Diana Hagen, Assistant United States 
         Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.
         Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, 
         Senior Circuit Judge.

         BRORBY, Senior Circuit Judge.

              Edgar Vasquez-Flores pleaded guilty to one count of illegal reentry into 

         the United States after deportation in violation of 8 U.S.C. . 1326.  The district 

         court determined his sentence with reference to section 2L1.2(b)(1)(A) of the 

         United States Sentencing Guidelines (USSG) and sentenced him to forty-six 

         months' imprisonment.  Mr. Vasquez-Flores appeals from the court's 

         application of the sentencing enhancement imposed pursuant to . 1326(b)(2). 

         Our jurisdiction arises under 28 U.S.C. . 1291 and 18 U.S.C. . 3742(a)(1), and 

         we affirm.(1)

              We review questions of law related to the application or interpretation of 

         the Sentencing Guidelines de novo.  United States v. Frias-Trujillo, 9 F.3d 

         875, 876 (10th Cir. 1993).  The pertinent guideline mandates a sixteen-level 

         penalty increase if the defendant was deported after an aggravated felony 

         conviction.  See USSG . 2L1.2(b)(1)(A).  The commentary to the guideline 

         defines "aggravated felony" by reference to 8 U.S.C. . 1101(a)(43).  See id. 

         commentary at n.1.  There, "aggravated felony" is defined in relevant part as "a 

         theft offense (including receipt of stolen property) . . . for which the term of 

         imprisonment [is] at least one year."  . 1101(a)(43)(G).  The phrase "theft 

         offense (including receipt of stolen property)" is not further defined.

         (1)     After examining the briefs and appellate record, this panel has 
         determined unanimously to grant the parties' request for a decision on the 
         briefs without oral argument.  See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). 
         The case is therefore ordered submitted without oral argument.
              Mr. Vasquez-Flores argues that "theft offense" means only "theft" and 

         that "theft offense" must be limited to those crimes containing all the elements 

         of theft under Utah state law.  He thus asserts that his prior conviction for 

         attempted receiving or transferring a stolen motor vehicle in violation of 

         U.C.A. . 41-1a-1316 is merely a lesser-included offense of theft under Utah 

         state law and, therefore, not a "theft offense" that qualifies as an "aggravated 


              The district court rejected this argument, and we affirm for two reasons. 

         First, as the Seventh Circuit has pointed out, 

              by choosing the words "theft offense" rather than just "theft," and 
              by expressly including "receipt of stolen property," Congress 
              signaled that it was not presenting an exhaustive list of offenses 
              (i.e. just theft and receipt); rather with its word choices, Congress 
              indicated that the phrase ought to be given a broad read.  See 
              [United States v.] Corona-Sanchez, 234 F.3d [449] at 455 ("If the 
              word `offense' does not restrict or clarify the word `theft,' then it 
              must broaden it.").
         Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008 (7th Cir. 2001).  Like the 

         Seventh Circuit, we conclude that "theft offense (including receipt of stolen 

         property)" includes more crimes than just "theft."  Further, we have already 

         rejected the view that whether a particular crime constitutes an aggravated 

         felony under the definitions referred to in USSG . 2L1.2(b)(2) depends upon 

         how the crime is characterized under state law.  See Frias-Trujillo, 9 F.3d at 

         876 n.1 (rejecting argument because "it would mean that a person convicted of
         exactly the same activity would, or would not, receive a sentence enhancement, 

         depending on how the particular statute characterized the crime.").

              The United States argues,(2) and we agree, that in interpreting this 

         sentencing guideline, we should adopt a uniform generic definition of "theft 

         offense (including receipt of stolen property)."  Cf. Taylor v. United States, 

         495 U.S. 575, 598 (1990) (adopting uniform definition for the purpose of 

         determining whether a defendant's sentence could be enhanced under 18 U.S.C. 

         . 924 due to a prior burglary conviction).  How "theft offense (including 

         receipt of stolen property)" should be defined for purposes of sentencing 

         enhancement has been examined by the Fifth, Seventh, and Ninth Circuits, as 

         well as by the Board of Immigration Appeals (BIA).

              The Fifth Circuit simply defined "theft offense" by referencing Black's 

         Law Dictionary and adopting its broad definition of "theft:"  "the act of 

         stealing."  United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000), cert. 

         denied, 121 S. Ct. 1214 (2001).  The Ninth Circuit went a bit farther, 

         examining the development of the crime of theft and noting that it arose from 

         an amalgam of common-law crimes.  United States v. Corona-Sanchez, 234

         (2)     Although the United States did not raise this argument to the district 
         court, we "may affirm the district court on any grounds for which there is a 
         record sufficient to permit conclusions of law, even grounds not relied upon by 
         the district court."  United States v. Edwards, 242 F.3d 928, 935 (10th Cir. 
         2001) (quotation omitted).
         F.3d 449, 453-54 (9th Cir. 2000).  Consequently, that court determined that 

         the definition should derive from the Model Penal Code (MPC) because the 

         MPC reflects a modern understanding of the crime of theft and employs an 

         expansive definition.  Id. at 454-55.  The court adopted the MPC's definition of 

         "theft," which sets forth eight types of theft offenses, including receipt of 

         stolen property and unauthorized use of automobiles and other vehicles.  Id. at 


              The BIA looked not only to the MPC but also to the United States Code 

         and various state codes in defining the phrase "theft offense (including receipt 

         of stolen property)."  In re Bahta, Interim Dec. 3437, 2000 WL 1470462 (BIA 

         Oct. 4, 2000).  The BIA noted that the modern view of theft treats as equivalent 

         those who knowingly receive and those who knowingly possess stolen property. 

         Id.  It determined that use of the parenthetical "(including receipt of stolen 

         property)" was intended to clarify that the term "theft offense" did not require 

         proof that the offender was involved in the actual taking of the property.  Id. 

         The BIA concluded that the whole definition thus included not only theft but 

         also the "category of offenses involving knowing receipt, possession, or 

         retention of property from its rightful owner" without consent.  Id.

              The Seventh Circuit examined both the MPC and Black's Law Dictionary 

         as well as the definition developed in Bahta to arrive at its generic definition. 

         The court held that, 

              distilled to its essence, . . . the modern, generic, and broad 
              definition of the entire phrase "theft offense (including receipt of 
              stolen property)" is a taking of property or an exercise of control 
              over property without consent with the criminal intent to deprive 
              the owner of rights and benefits of ownership, even if such 
              deprivation is less than total or permanent.
         Hernandez-Mancilla, 246 F.3d at 1009.  We find the Seventh Circuit's 

         reasoning to be persuasive and we adopt this definition.

              The Utah statute under which Mr. Vasquez-Flores was previously 

         convicted is entitled, "Receiving or transferring stolen motor vehicle . . .," and 

         it prohibits the knowing receipt, transfer, or possession of a stolen vehicle.  . 

         41-1a-1316.  In the plea agreement, Mr. Vasquez-Flores pleaded guilty to 

         attempting to knowingly receive or transfer a stolen motor vehicle in violation 

         of this statute, admitting he was knowingly "in possession of a stolen vehicle." 

         R. Doc. 22, Ex. 1 at 2.  Because Mr. Vasquez-Flores's conviction entailed a 

         knowing exercise of control over another's property without consent, it fits the 

         definition of "theft offenses (including receipt of stolen property)" described 

         above.  His prior conviction thus constitutes an "aggravated felony" under . 

         1326(b)(2), and the district court properly enhanced his sentence under USSG 

         . 2L1.2(b)(1)(A).  The judgment of the United States District Court for the 

         District of Utah is AFFIRMED.

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