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In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2396






Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 271--James B. Moran, Judge.

Argued JANUARY 9, 2001--Decided September 28, 2001

  Before FLAUM, Chief Judge, BAUER and
COFFEY, Circuit Judges.

  COFFEY, Circuit Judge.  On June 7, 1999,
Marcos Martinez-Garcia (hereafter
"Garcia") pled guilty to an indictment
charging him with being present in the
United States after having been deported,
contrary to 8 U.S.C. sec. 1326. At
sentencing, the district court determined
that Garcia's deportation in 1992 was
accomplished "subsequent to the
commission of an aggravated felony," thus
authorizing an enhanced prison term under
the Immigration and Naturalization Act
(INA). The judge sentenced Garcia to 57
months imprisonment. He appeals. We


  Garcia is a Mexican national admitted
into the United States as a legal
permanent resident in 1985. He resided in
Waukegan, Illinois, from the time of his
entry into this country until his
deportation in March, 1992. On or about
June 21, 1988, at the age of 17, Garcia
was arrested and charged as an adult in a
two-count Information with theft and
burglary in Lake County Illinois Circuit
Court./1 Count I of the Information,
the burglary charge, stated in pertinent
part as follows:

[T]he defendant, without authority,
knowingly entered a motor vehicle of
Silvens Mathews, a 1979 Chevy pick-up,
with the intent to commit therein a

  On December 27, 1988, Garcia pled guilty
to the burglary charge as recited above,
was sentenced to 30 months probation, and
the theft charge was dropped. However,
about six months later, for reasons not
disclosed in the record, Garcia's
probation was revoked and he was
sentenced to a three year prison term
under supervision of the Illinois
Department of Corrections. On March 17,
1992, Garcia was deported from the United

  On July 6, 1998, Immigration and
Naturalization agents, while conducting
random searches of county jails for
illegal aliens, discovered Garcia in the
Lake County Illinois Jail. After it was
determined that Garcia was illegally in
the United States, he was prosecuted for
illegal re-entry. On April 13, 1999, a
federal grand jury returned an indictment
charging Garcia with being in the United
States illegally after deportation,
contrary to 8 U.S.C. sec. 1326. On June
7, 1999, he entered a plea of guilty and
was sentenced to 57 months imprisonment.

  At the time of sentencing, the district
court found that Garcia's 1988 burglary
conviction should have been classified as
an "attempt" to commit a "theft offense"
under the INA, also qualifying him as an
"aggravated felon" pursuant to 8 U.S.C.
sec. 1326(b)(2) and U.S.S.G sec.
2L1.2(b)(1)(A). After the trial judge
made a three-level reduction for Garcia's
acceptance of responsibility, the total
offense level was in the Guideline range
of 57 to 71 months./3 The judge
declined Garcia's request for a downward
departure because the three year prison
sentence ultimately imposed for the 1988
Illinois conviction rendered a downward
departure unavailable under Application
Note 5 of U.S.S.G. sec. 2L1.2. 


  Garcia raises three issues on appeal:
(1) that pursuant to the holding in
Apprendi v. New Jersey, 530 U.S. 466
(2000), the sentencing judge committed
error by not requiring the government to
charge in the indictment that his 1988
Illinois conviction was an "aggravated
felony"; (2) alternatively, that the
district court erred in determining that
the 1988 conviction was an "attempted
theft offense," and thus an "aggravated
felony," pursuant to 8 U.S.C. sec.
1326(b)(2), and 8 U.S.C. sec.
1101(a)(43); and (3) that the trial court
erred when concluding that it lacked the
authority to order a downward departure
from the 16 point enhancement Garcia
received for committing an aggravated
felony, pursuant to Application Note 5 of
U.S.S.G sec. 2L1.2.


  A. The District Court's Authority to
Determine the Existence and Nature of a
Prior Conviction.

  Garcia initially argues that the
district court was without authority to
make the finding that his 1988 burglary
conviction was an "aggravated felony" for
purposes of the maximum penalty
enhancement of 8 U.S.C. sec. 1326. He
argues that under Apprendi v. New Jersey,
530 U.S. 466 (2000), a prior criminal
conviction, if it increases the maximum
statutory sentence, must be treated as an
element of the offense, included in the
indictment, and established by the
government beyond a reasonable doubt./4
Garcia has failed to present us with any
case law, nor are we aware of any,
requiring that the government charge his
prior conviction in the indictment.
Garcia acknowledges the direct conflict
between his argument and the Supreme
Court's holding in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and
contends that Almendarez-Torres was
overruled or limited by the Supreme
Court's subsequent decision in Apprendi.
We disagree. In Apprendi, the Supreme
Court summarized its holding as follows:

Other than the fact of a prior
conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable

Apprendi, 530 U.S. at 490 (emphasis

  As the quoted passage makes clear, the
Court in Apprendi held that "prior
convictions" need not be charged nor sub
mitted to a jury. Indeed, the Court made
clear that Almendarez-Torres was a
"narrow exception to the general rule"
announced in Apprendi. Id. at 490. This
ruling preserved the prior holding in
Almendarez-Torres that under 8 U.S.C.
sec. 1326, prior convictions are a
sentencing factor, not an element of the
crime, and need not be charged.
Almendarez-Torres, 523 U.S. at 226-27;
see also Dahler v. United States, 259
F.3d 763,765 (7th Cir. 2001) (holding
that Apprendi did not overrule

  Thus, under Almendarez-Torres, prior
convictions need not be included in the
indictment, regardless of whether the
existence of the prior conviction
increases the maximum term of
imprisonment. Almendarez-Torres, 523 U.S.
at 235. The trial judge did not commit
error on this issue and Garcia's Apprendi
challenge to his sentence is rejected.

  B.  Commission of an Aggravated Felony

  Garcia next alleges that the court erred
in finding that his 1988 Illinois
conviction was an "attempted theft
offense" that qualified as an "aggravated
felony" for purposes of the penalty
enhancement provisions of 8 U.S.C. sec.
1326(b)(2), and U.S.S.G sec.
2L1.2(b)(1)(A). The question of what
constitutes an "aggravated felony" is
reviewed de novo. Solorzano-Patlan v.
INS, 207 F.3d 869, 872 (7th Cir. 2000). 

   Congress, in enacting the INA, listed
specific crimes as well as other acts of
criminal behavior that qualify as
"aggravated felonies," including the

(43) The term "aggravated felony" means .
. . (G) a theft offense (including
receipt of stolen property) or burglary
offense for which the term of
imprisonment [sic] at least one year. . .
(U) an attempt or conspiracy to commit an
offense described in this paragraph.

8 U.S.C. sec. 1101(a)(43)(G) and (U)
(emphasis added).    

  Since a "theft offense" is listed as an
"aggravated felony" in the INA, an
"attempt" to commit a "theft offense" is
also an aggravated felony. The trial
court judge concluded that the facts of
Garcia's 1988 state conviction properly
fell within the parameters of an
attempted theft offense. At Garcia's
sentencing hearing, the judge stated, "no
matter how you parse theft, attempted
theft, no matter how small it is, and no
matter how a state classifies it, is
something that Congress classified as an
aggravated felony if the penalty was more
than a year." We agree.

   1.  "Burglary Offense" Under the INA

  Initially we note that Garcia's 1988
burglary conviction, in spite of the
title given to the crime, does not
fulfill the elements of a "burglary
offense" as set forth in the INA under
our recent decision in Solorzano-Patlan
v. INS, 207 F.3d 869, 874 (7th Cir.
2000), in which we held that "burglary"
in its generic sense requires unlawful
entry into a building or structure, and
does not encompass unlawful entry into a
motor vehicle. Garcia's burglary
conviction, like Solorzano-Patlan's,
involved unlawful entry into a motor
vehicle, not a building or structure, and
therefore cannot qualify as a "burglary
offense" under the INA. However, in this
case the trial court, after considering
and referring to our decision in
Solorzano-Patlan, properly held that
Garcia's 1988 conviction was an "attempt"
to commit a "theft offense," not a
"burglary offense" or an "attempt" to
commit a "burglary offense."

   2.  "Theft Offense" Under the INA.

  In Solorzano-Patlan, we established a
framework for determining when a
defendant's prior criminal conviction can
properly be classified as an "aggravated
felony" under the INA. In determining
whether a criminal conviction falls
within one of the statutory predicate
offenses designated as aggravated
felonies by Congress, the uniform
application of federal law requires that
we identify and apply the "generic"
elements of the felonious activity
involved, rather than the inconsistent
titles, elements and definitions used in
the statutes of the various states.
Solorzano-Patlan, 207 F.3d at 873.

  We have previously defined a "theft
offense" for purposes of the INA as
requiring the taking of property
(exercise of control over property),
without the owner's consent, with the
intent to temporarily or permanently
deprive the owner of the rights and
benefits of ownership. Hernandez-Mancilla
v. INS, 246 F.3d 1002, 1009 (7th Cir.
2001). Garcia's guilty plea to the 1988
burglary charge went only to an admission
that he unlawfully entered a vehicle with
the intent to commit a theft, but neither
his plea nor the charging document
encompassed an admission or charge that
he completed the act of taking property
from the vehicle./5 

   3. "Attempt" to Commit a "Theft
Offense" Under the INA.

  We next consider whether Garcia's
conviction qualifies as an "attempt" to
commit a "theft offense" under the INA.
As previously noted, the INA's definition
of aggravated felony includes "an attempt
or conspiracy to commit an offense
described in [8 U.S.C. sec.
1101(a)(43)]." 8 U.S.C. sec. 1101(a)
(43)(U). "Attempt" is not defined in the
INA. Consistent with our two most recent
cases dealing with this question,
Solorzano-Patlan and Hernandez-Mancilla,
we are bound to apply a generic
definition of "attempt" that is
unconstrained by the titles, definitions
or elements assigned to it by the various
states. See Solorzano-Patlan, 207 F.3d at
874. In answering this question we also
rely on the reasoning of the Second
Circuit in Sui v. INS, 250 F.3d 105 (2d
Cir. 2001), in which the court recently
analyzed the meaning of "attempt" as used
in 8 U.S.C. sec. 1101(a)(43)(U). 

  In Sui, the Second Circuit initiated its
analysis of the meaning of the word
"attempt" by holding that "the label
given to the offense by the charging
jurisdiction is not alone determinative
of its status as an aggravated felony."
Sui, 250 F.3d at 114. We agree with the
Second Circuit, because reliance on the
varying state laws would inevitably lead
to inconsistent results in the
interpretation of the INA, as we made
clear and condemned in Solorzano-Patlan.
As previously noted, Congress obviously
never intended the definitions of the
INA's predicate offenses to vary solely
according to the conflicting titles
applied in the criminal laws of the
various states. See Solorzano-Patlan, 207
F.3d at 874; Taylor v. United States, 495
U.S. 575, 579-80 (1990). 

  Accordingly, the Sui court derived a
generic meaning of "attempt," based on
common law and the Model Penal Code,
consisting of (1) the intent to commit a
crime, and (2) a substantial step toward
its commission. Sui, 250 F.3d at 115.
This definition of "attempt" is
frequently employed in this circuit and
derived from the common law. We adopt
this definition for purposes of 8 U.S.C.
sec. 1101(a)(43)(U). See United States v.
Romero, 189 F.3d 576, 589 (7th Cir. 1999)
(An "attempt" requires the intent to
commit a crime and a substantial step
toward its commission.); United States v.
Saunders, 166 F.3d 907, 915 (7th Cir.
1999); United States v. Barnes, 230 F.3d
311, 314 (7th Cir. 2000); United States
v. Rovetuso, 768 F.2d 809, 821 (7th Cir.
1985) (reciting the definition after
noting the absence of a comprehensive
federal statutory definition of

  With this definition in mind, it is
clear that the conduct admitted by Garcia
in his plea of guilty to Count I of the
1988 Information fits within the
parameters of an "attempt" to commit a
"theft offense." The 1988 Information
charged Garcia with the intent to commit
a theft, and also charged him with taking
a substantial step toward the commission
of the theft (unlawfully entering a motor
vehicle without the owner's consent). In
pleading guilty to this charge, Garcia
admitted engaging in conduct which we
determine to fit within the parameters of
an attempt to commit a theft offense
under the INA, and the district court
therefore did not err in concluding that
the defendant's 1988 conviction was an
aggravated felony.

  C. The District Court's Application of
the Sentencing Guidelines 

  Garcia's final contention is that the
sentencing judge misconstrued the breadth
of his downward departure authority under
U.S.S.G sec. 2L1.2, and Application Note
5 to that section. The Guideline provides
a base offense level of 8 for a
conviction of illegal re-entry after
deportation. U.S.S.G sec. 2L1.2(a). An
upward adjustment of 16 levels is
mandated where the deportation was
subsequent to a conviction for an
aggravated felony. U.S.S.G. sec.
2L1.2(b)(1)(A). Application Note 5 to the
Sentencing Guideline states that a
downward departure from the 16 level
adjustment may be warranted if the
defendant's aggravated felony conviction
meets each of three enumerated criteria.
The note provides as follows:

Aggravated felonies that trigger the
adjustment from subsection (b)(1)(A) vary
widely. If subsection (b)(1)(A) applies,
and (A) the defendant has previously been
convicted of only one felony offense; (B)
such offense was not a crime of violence
or firearms offense; and (C) the term of
imprisonment imposed for such offense did
not exceed one year, a downward departure
may be warranted based on the seriousness
of the aggravated felony.

U.S.S.G. sec. 2L1.2, Application Note 5. 

  At sentencing, Garcia requested a
downward departure based upon Application
Note 5. The judge denied his request,
holding that Garcia failed to meet each
of the three criteria delineated in
Application Note 5 because his 1988
conviction resulted in a term of
imprisonment in excess of one year when
his probation was revoked and he received
a three year sentence. On appeal, Garcia
contends that the judge erred in his
determination that each of the criteria
referred to in Application Note 5 must be
satisfied in order for a downward
departure to be authorized. 

  Garcia's argument is precluded by our
recent decision in United States v.
Palomino-Rivera, 258 F.3d 656, 660 (7th
Cir. 2001).

In promulgating Application Note 5, the
[Sentencing] Commission defined the
heartland of sec. 2L1.2 by exclusion; a
downward departure from the sixteen-point
enhancement is authorized only if the
defendant satisfies all three criteria
enumerated in Application Note 5 . . .
Any other interpretation would render the
application note "effectively
meaningless." [United States v. Tappin,
205 F.3d 536, 541 (2d Cir. 2000).]. We
shall not "second-guess the conscious
policy choices of Congress and the
Sentencing Commission, an activity in
which we are not at liberty to engage."
[United States v. Marquez-Gallegos, 217
F.3d 1267, 1271 (10th Cir. 2000)].
Palomino-Rivera, 2001 WL 818791 at *3-4
(emphasis added).

  The holding quoted above is dispositive
of Garcia's argument on appeal. Because
his 1988 conviction resulted in
imposition of a prison term in excess of
one year, his conviction did not meet
each of the criteria enumerated in
Application Note 5, and the district
court did not err in determining that a
downward departure from the prescribed
sentencing range would be improper.


  We find no merit to Garcia's challenges
to his sentence, and the judgment of the
district court is AFFIRMED.


/1 Persons 17 years of age and older may be prose-
cuted as adults under Illinois law. 705 ILCS

/2 Shortly thereafter, Garcia illegally re-entered
the United States and continued a pattern of
illegally re-entry followed by deportation. In
the six years following his initial deportation
he was deported three additional times but was
not criminally prosecuted for any of these

/3 The judge, following the Guidelines, sentenced
Garcia to the shortest period of incarceration
available, and ordered that the sentence be
served concurrently with a four year state term
of imprisonment Garcia was then serving. 

/4 Garcia did not raise the Apprendi issue before
the trial court, thus we apply the plain error
standard to any argument raised for the first
time on appeal. United States v. Nance, 236 F.3d
820, 824 (7th Cir. 2000); Johnson v. United
States, 520 U.S. 461, 466-67 (1997);
Fed.R.Crim.P. 52(b). 

/5 As previously noted, Count I of the Information
charged that "[T]he defendant, without authority,
knowingly entered a motor vehicle of Silvens
Mathews, a 1979 Chevy pick-up, with the intent to
commit therein a theft." In pleading guilty to
this charge, Garcia admitted the conduct and
facts as alleged in the Information. United
States v. Shannon, 110 F.3d 382, 384 (7th Cir.