United States v. Rivera

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50313

Plaintiff-Appellee,

v.  D.C. No.

3:09-cr-01855-DMS

MARIO ANTONIO RIVERA,



Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

May 2, 2011—Pasadena, California

Filed September 23, 2011

Before: John T. Noonan and Kim McLane Wardlaw,

Circuit Judges, and Edward R. Korman, District Judge*

Opinion by Judge Korman

*The Honorable Edward R. Korman, Senior United States District

Judge for the Eastern District of New York, sitting by designation.

18183

18186 UNITED STATES v. RIVERA

COUNSEL

Marc X. Carlos, Bardsley & Carlos, L.L.P., San Diego, Cali-

fornia, for the defendant-appellant.

Laura E. Duffy, United States Attorney, San Diego, Califor-

nia, for the plaintiff-appellee.

Bruce R. Castetter, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

C. Seth Askins, Assistant United States Attorney, San Diego,

California, for the plaintiff-appellee.

OPINION

KORMAN, District Judge:

Mario Antonio Rivera, an alien, has been convicted of at

least ten offenses and has been removed from the United

States ten times, most recently on December 5, 2008. Less

than six months after he was last removed, he was again

arrested as he attempted to cross the border from Mexico into

the United States. On January 29, 2010, Rivera pleaded guilty

to a violation of 8 U.S.C. § 1326—for unlawfully attempting

to reenter the United States after having previously been

removed—and was sentenced to a 37-month term of impris-

onment, the low end of the range prescribed by the Sentenc-

ing Guidelines.

In calculating the prescribed range, the district court

increased the offense level by eight levels because Rivera

UNITED STATES v. RIVERA 18187

“previously was deported, or unlawfully remained in the

United States, after . . . a conviction for an aggravated felo-

ny.” U.S.S.G. § 2L1.2(b)(1)(C) (emphasis added). The term

“aggravated felony” is defined to include a theft offense “for

which the term of imprisonment [is] at least one year.” 8

U.S.C. § 1101(a)(43)(G). The district court determined that

any one of Rivera’s three prior felony petty theft convictions

under Cal. Penal Code §§ 484(a) and 666 would be sufficient

to trigger the eight-level increase, because he had been sen-

tenced to concurrent 16-month terms of imprisonment in state

prison for his first and second offense and two years in state

prison for his third offense.

Relying on United States v. Corona-Sanchez, 291 F.3d

1201 (9th Cir. 2002) (en banc), Rivera argues that the district

court erroneously held that these petty theft convictions each

categorically qualified as an aggravated felony, as defined by

8 U.S.C. § 1101(a)(43)(G). Applying the categorical approach

set forth in Taylor v. United States, 495 U.S. 575 (1990),

Corona-Sanchez held that a petty theft conviction, under Cal.

Penal Code § 484(a), cannot qualify as an aggravated felony

for two reasons. First, barring an enhancement based on any

prior offenses, the sentence for a violation of § 484(a) is only

six months, Corona-Sanchez, 291 F.3d at 1210 (citing Cal.

Penal Code § 490), and, in determining whether a state

offense is an aggravated felony, courts “must consider the

sentence available for the crime itself, without considering

separate recidivist sentencing enhancements,” id. at 1209.

Second, a broader range of conduct is prohibited by Cal.

Penal Code § 484(a) than is prohibited by the generic theft

offense referenced in 8 U.S.C. § 1101(a)(43)(G), so a convic-

tion under Section 484(a) is not necessarily an aggravated fel-

ony. Corona-Sanchez, 291 F.3d at 1208. These arguments do

not avail the defendant here, although for different reasons.

DISCUSSION

[1] We review the “district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s application

18188 UNITED STATES v. RIVERA

of the Sentencing Guidelines to the facts of this case for abuse

of discretion, and the district court’s factual findings for clear

error.” United States v. Cruz-Gramajo, 570 F.3d 1162, 1167

(9th Cir. 2009) (internal quotation marks and citations omit-

ted). We begin by addressing the question whether a convic-

tion for petty theft under Cal. Penal Code §§ 484(a) and 666

can qualify as an aggravated felony because a conviction for

petty theft is a misdemeanor that carries a sentence of not

more than six months in the county jail, see Cal. Penal Code

§§ 17(a), 490, and because the term of imprisonment can

increase to sixteen months or two years (as it did in this case)

only if a recidivist sentencing provision applies, see Cal.

Penal Code §§ 18, 666. The Supreme Court resolved this

issue in United States v. Rodriquez, 553 U.S. 377 (2008). The

issue there turned on the language of the Armed Career Crim-

inal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), (2)(A)(ii). Under

the ACCA, a person convicted for being a felon in possession

of a firearm, who has three prior convictions for a “serious

drug offense,” is subject to a 15-year mandatory minimum. 18

U.S.C. §§ 922(g), 924(e)(1). The term “serious drug offense”

is defined in relevant part as a state drug-trafficking convic-

tion “for which a maximum term of imprisonment of ten years

or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

The defendant in Rodriquez had three prior drug-trafficking

convictions. 553 U.S. at 380. The maximum penalty of

imprisonment under Washington law for such drug-trafficking

offenses was 5 years. Id. at 381. But a conviction for a second

or subsequent offense carried a maximum penalty of 10 years

imprisonment. Id.

[2] We had held in United States v. Rodriquez, 464 F.3d

1072 (9th Cir. 2006), rev’d 553 U.S. 377 (2008), that the

recidivist enhancement could not be considered in determin-

ing whether the defendant’s prior drug-trafficking convictions

constituted a serious drug offense, id. at 1080. As the

Supreme Court observed, in the course of reversing us,

Rodriquez, 553 U.S. at 382, we had come to this conclusion

by “applying [our] prior precedent in United States v. Corona-

UNITED STATES v. RIVERA 18189

Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc),” which

held that a conviction for a substantive offense must be con-

sidered separate and apart from any sentencing enhancements

because “recidivism does not relate to the commission of the

offense,” Corona-Sanchez, 291 F.3d at 1209 (internal quota-

tion marks and citation omitted). But Rodriquez held, to the

contrary, that an increased, recidivist “sentence is a stiffened

penalty for the latest crime, which is considered to be an

aggravated offense because [it is] a repetitive one.” 553 U.S.

at 386 (internal quotation marks and citation omitted). Thus,

because the recidivist sentence does relate to the commission

of the repeat offense and is clearly part of the sentence “pre-

scribed by law,” a recidivist sentence may be considered in

determining whether a prior conviction qualifies as a predi-

cate offense. See Rodriquez, 553 U.S. 382-86. In light of the

Supreme Court’s reasoning in Rodriquez, we decline to fol-

low Corona-Sanchez here because, as we have held, we are

not bound by a circuit precedent “where the reasoning or the-

ory of our prior circuit authority is clearly irreconcilable with

the reasoning or theory of intervening higher authority.” Mil-

ler v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

[3] Rivera argues, however, that Rodriquez did not disturb

Corona-Sanchez because the ACCA “is a very different stat-

ute than [the INA].” This argument fails because the Supreme

Court’s reasons for rejecting the holding of Corona-Sanchez

apply with equal force regardless of the statutory scheme at

issue. Nevertheless, there is one salient difference between the

ACCA provision at issue in Rodriquez and the INA provision

at issue in Corona-Sanchez (though this difference is of no

avail to Rivera here). The ACCA enhances a sentence for a

felon in possession of a weapon if he had previously been

convicted of, among other offenses, a serious drug offense. 18

U.S.C. § 924(e)(2)(A)(I). The INA enhances a sentence for

unlawful reentry if the defendant had previously been con-

victed of an aggravated felony, which includes a theft offense

for which the term of imprisonment is at least one year. 8

U.S.C. § 1101(a)(43)(G). Thus, the state drug convictions of

18190 UNITED STATES v. RIVERA

the defendant in Rodriquez qualified as serious drug offenses,

even though he was given a sentence far below the 10-year

maximum, simply because the offenses were punishable by a

10-year maximum sentence. The “at least one year” require-

ment of 8 U.S.C. § 1101(a)(43)(G), however, pertains to “the

actual sentence imposed by the trial judge.” Alberto-Gonzalez

v. I.N.S., 215 F.3d 906, 910 (9th Cir. 2000). Because Rivera

was actually sentenced to terms of imprisonment of at least

one year for each of his felony petty theft convictions, they

clearly satisfy the threshold sentence requirement for an

aggravated felony.

The fact that Rivera’s petty theft convictions under Cal.

Penal Code §§ 484(a) and 666 satisfy the “at least one year”

sentence requirement of 8 U.S.C. § 1101(a)(43)(G) does not,

however, end our inquiry. We must still address the issue

whether such a conviction constitutes a predicate theft offense

that may be deemed an aggravated felony. To make this deter-

mination, we first compare “the fact of conviction and the

statutory definition of the prior offense” with the statutory

definition of the predicate offense. Taylor, 495 U.S. at 602. If

the full range of conduct prohibited by the state petty theft

provision is also prohibited by the federal theft offense provi-

sion, then the petty theft offense is a categorical match to the

predicate theft offense, and the sentencing enhancement is

warranted. See United States v. Farmer, 627 F.3d 416, 418

(9th Cir. 2010) (explaining Taylor’s methodology), cert.

denied, No. 10-9620, 2011 WL 1043734 (June 27, 2011).

[4] Our prior decisions have established, however, that a

petty theft conviction, under Cal. Penal Code §§ 484(a) and

666, is not a categorical match to the federal definition of a

theft offense. The latter is limited to “ ‘[1] a taking of prop-

erty or an exercise of control over property [2] without con-

sent [3] with the criminal intent to deprive the owner of rights

and benefits of ownership, even if such deprivation is less

than total or permanent.’ ” Carrillo-Jaime v. Holder, 572 F.3d

747, 750 (9th Cir. 2009) (quoting Corona-Sanchez, 291 F.3d

UNITED STATES v. RIVERA 18191

at 1205). Cal. Penal Code § 484(a) is not a categorical match

to 8 U.S.C. § 1101(a)(43)(G) because the state statute also

expressly criminalizes certain conduct—such as theft of labor,

false credit reporting, and theft by false pretenses—that do not

satisfy the generic definition. Carrillo-Jaime, 572 F.3d at 751,

753.

[5] “Where, as here, the state statute is broader than the

federal definition of a predicate offense, ‘we must use the so

called modified categorical approach . . . .’ ” United States v.

Strickland, 601 F.3d 963, 967-68 (9th Cir. 2010) (en banc)

(quoting United States v. Snellenberger, 548 F.3d 699, 701

(9th Cir. 2008) (en banc) (per curiam)). “Our purpose is to

determine whether documentation or judicially noticeable

facts clearly establish that the defendant pleaded guilty to

facts covered by the predicate offense.” Id. at 968. Under this

approach, a court may look only to the “record of conviction,”

generally defined as “ ‘the statutory definition, charging docu-

ment, written plea agreement, transcript of plea colloquy, and

any explicit factual finding by the [state] trial judge to which

[the defendant] assented.’ ” United States v. Vidal, 504 F.3d

1072, 1086 (9th Cir. 2007) (en banc) (quoting Shepard v.

United States, 544 U.S. 13, 16 (2005)).

In Corona-Sanchez, “[a]ll the known information about the

conviction [came] from the rendition of criminal history con-

tained in the presentence report,” which merely “describe[d]

the qualifying offense as ‘666/488 PC, Petty Theft with Prior

Jail Term for a Specific Offense.’ ” 291 F.3d at 1206. But we

held in Corona-Sanchez that “a presentence report reciting the

facts of the crime is insufficient evidence to establish that the

defendant pled guilty to the elements of the generic definition

of a crime when the statute of conviction is broader than the

generic definition.” Id. at 1212. In this case, however, we

need not rely on the presentence report (as the district court

did) because we have available the charging instruments, plea

form, and the abstract of judgment for Rivera’s May 30, 2006

18192 UNITED STATES v. RIVERA

petty theft convictions, which establish that Rivera pleaded

guilty to a generic theft offense.

[6] The felony complaint and felony information alleged

that Rivera “did unlawfully and in violation of Penal Code

Section 484(a), steal take and carry away the personal prop-

erty of WAL-MART.” By pleading guilty to this charge,

Rivera pleaded guilty to “ ‘a taking of property . . . without

consent with the criminal intent to deprive the owner of rights

and benefits of ownership . . . .’ ” Corona-Sanchez, 291 F.3d

at 1205 (quoting Hernandez-Mancilla v. I.N.S., 246 F.3d

1002, 1009 (7th Cir. 2001)); cf. People v. Davis, 965 P.2d

1165, 1167 (Cal. 1998) (stating elements of petty theft under

§ 484(a)); People v. Thompson, 322 P.2d 489, 490 (Cal. Ct.

App. 1958) (same). Because the felony complaint and the fel-

ony information each qualify as “a charging document that

narrows the charge to generic limits,” the fact that Rivera

pleaded guilty to this charge establishes that he was convicted

of a generic theft offense. Shepard, 544 U.S. at 25.

CONCLUSION

[7] Because the judicially-noticeable documents submitted

by the United States Attorney establish clearly and unequivo-

cally that Rivera’s May 30, 2006 petty theft conviction was

based upon his plea of guilty to conduct that constitutes a

generic theft offense, and because this was a theft offense

conviction for which the term of imprisonment was at least

one year, Rivera’s offense level was correctly increased by

eight levels, under U.S.S.G. § 2L1.2(b)(1)(C).

AFFIRMED.