United States v. Moses Corona-Sanchez, A/K/A Enrique Sanchez-Corona

RYMER, Circuit Judge,

with whom KOZINSKI, T.G. NELSON, and KLEINFELD, Circuit Judges, join, concurring in part 1 and dissenting in part.

To me, stealing property from a grocery store with a prior conviction for doing the same thing — to which Corona-Sanchez pled guilty and for which he was sentenced to two years in custody pursuant to California Penal Code §§ 488 and 666, is plainly a “theft offense ... for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101 (a)(43)(G). If so, the conviction was for an “aggravated felony” and enhancement of Corona-Sanchez’s federal sentence for illegally reentering the United States after being deported was required by U.S.S.G. § 2L1.2(b)(l)(A). This is true regardless of which generic definition of “theft” we adopt. While I do not believe that the full range of conduct proscribed by California’s statutory definition of “theft,” CaLPenal Code § 484(a), falls outside the modern, categorical meaning of “theft offense,” even if it does, we are not required to play ostrich to the record which reflects that the elements of a theft offense, however defined, exist in this case and that Corona-Sanchez was convicted of a felony. Therefore, I would affirm.

It is undisputed that on January 11, 1994 Corona-Sanchez entered a guilty plea to a California complaint in Orange County Superior Court Case No. 94SF0169 charging that on or about March 14, 1994, he attempted to steal/take and carry away the property of Albertsons Grocery Store. His plea was to petty theft with a prior jail term for a specific offense — again, petty theft — pursuant to California Penal Code §§ 666 and 488. He was sentenced to two years in custody. 2 This information, togeth *1214 er with the fact that Corona-Sanchez had previously been charged with, and pled guilty to, entering Dad’s Liquor Store in San Clemente, California, with the intent to commit larceny, is set out in the Presen-tence Report filed in connection with Corona-Sanchez’s sentencing in this case. He objected to the enhancement recommended by the PSR on the basis that the prior conviction relied upon by the probation officer (petty theft with a prior) is not an aggravated felony because it includes theft of services; it includes theft of real property; and it can be punishable by less than one year of imprisonment. But Corona-Sanchez did not object to the PSR’s recitation of what the charging document averred, what he pled guilty to, or the statutes of conviction.

U.S.S.G. § 2L1.2(b)(l)(A) mandates enhancement of an alien’s sentence for unlawfully reentering the United States when he was previously deported after a conviction for an “aggravated felony.” Section 2L1.2(b)(l)(A) relies on 8 U.S.C. § 1101 (a)(43) for its definition of “aggravated felony.” An “aggravated felony” under § 1101(a)(43)(G) means “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” Congress failed to say what it meant by “theft offense.” In these circumstances, the Supreme Court has indicated that we should craft a definition that is modern, uniform, and categorical, and that does not depend upon the definition adopted by the state of conviction. Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990).

In Taylor, the Court had to determine the meaning of “burglary” as the term was used for enhancing sentences under the Career Criminals Amendment Act of 1986 (Subtitle I of the Anti-Drug Abuse Act of 1986), 18 U.S.C. § 924 (e). In doing so, the Court recognized that the contemporary understanding of “burglary” has diverged from its common law roots, and it concluded that Congress meant the generic sense in which the term is now used in the criminal codes of most states. Accordingly, the Court settled upon the minimum basic elements of burglary by considering what commentators had to say, the prevailing view in modern codes, and its treatment in the Model Penal Code. Id. at 598 , 110 S.Ct. 2143 .

Corona-Sanchez argues that in the absence of a Congressional definition the courts should turn to the common law, because theft is a common law crime. However, as the majority concludes, Taylor makes it clear that common law definitions are not controlling. Id. at 598 , 110 S.Ct. 2143 . Thus, our task is to discern a contemporary, generic definition for “theft offense.”

As the panel opinion explains, the same concerns animating Taylor’s approach are present here. United States v. CoronaSanchez (Corona-Sanchez I), 234 F.3d 449, 454-55 (9th Cir.2000). Congress expanded the immigration consequences of past criminal conduct when it passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Further, it used the term “theft offense” in § 1101(a)(43)(G), not just the word “theft.” This manifests Congressional intent to paint with a broad brush. Id. at 455. Other circuits agree. See Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1008 (7th Cir.2001); United States v. Vasquez-Flores, 265 F.3d 1122, 1124 (10th Cir.2001).

Given this intent, the panel thought that the definition of “theft offense” should derive from the Model Penal Code (MPC). *1215 Corona-Sanchez I, 234 F.3d at 454-55 . The MPC reflects a common understanding of the crime of “theft” and captures the sentiment of Congress because it employs an expansive definition. The Model Penal Code sets forth eight types of theft offenses, and consolidates the three common law crimes of larceny, embezzlement and false pretenses into “theft.” 3

At the time of the panel opinion in Corona-Sanchez I, the Fifth Circuit was the only court of appeals that had considered the question of what “theft offense” in § 1101(a)(43)(G) meant. Without reference to other sources, it used the definition in Black’s Law Dictionary, which defines “theft” as “the act of stealing.” 4 United States v. Dabeit, 231 F.3d 979, 983 (5th Cir.2000). The panel believed that the MPC’s formulation was preferable to Black’s, although consistent with it. Since the panel decision was rendered, the Seventh and Tenth Circuits have also had occasion to define “theft offense.” In addition to the MPC, they examined Black’s as well as the approach of the Board of Immigration Appeals (BIA). 5 Both courts agree that “ ‘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.’ ” Vasquez-Flores, 265 F.3d at 1124 (quoting with approval Hernandez-Mancilla, 246 F.3d at 1008 ). Having consid *1216 ered the MPC, Black’s Law Dictionary and the definition developed by the BIA, both courts held that 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 ; Vasquez-Flores, 265 F.3d at 1125 .

The majority opts for the Hemandez-Mancilla test, which has the merit of making the generic definition more uniform. However, I do not agree with its implicit assumption that the Hemandez-Mancilla definition is necessarily narrower than the MPC’s — or California’s statutory definition — of “theft.” Certainly nothing in the Seventh Circuit’s opinion suggests that it thought so. Rather, it read “theft offense” as an “umbrella label,” and came up with a formulation which it thought “distilled [the offense] to its essence” by combining definitions developed by the BIA in V-Z-S and Bahta — which, in turn, had been crafted from the MPC, Black’s, and federal as well as state statutes. Hernandez-Mancilla, 246 F.3d at 1008 .

The majority holds that § 484(a) is broader than the' Seventh Circuit’s definition because § 484(a) criminalizes theft of services and solicitation of false credit reporting. However, “property” can include services; 6 and it isn’t just solicitation of false credit reporting that California penalizes, but the fraudulent obtaining of money or property, labor or service that is the theft. Neither example causes Corona-Sanchez’s conviction to fall outside Hernandez-Mancilla . Nor does People v. Coffelt, 140 Cal.App. 444 , 35 P.2d 374, 376 (1934), indicate that § 484(a) allows a conviction for theft when the defendant has not taken or exercised control over the stolen property; certainly in Coffelt itself, the defendant did exercise control by directing property taken by false pretenses to a third party. California is no different from any other jurisdiction in recognizing that theft is theft whether the property is taken for someone else or for oneself. Finally, and curiously, the majority suggests that § 484 is broader than its preferred generic definition of theft because a defendant can be convicted of the substantive offense of violation of § 484 for aiding and abetting a theft. It cannot be that the possibility of being liable as an aider or abettor takes an offense out of the running, for this is true of any crime in California, where principals include those who aid or abet the commission of a crime. Cal.Penal Code § 31. In any event, “[t]o be liable as an aider and abettor, the defendant must have instigated or advised the commission of the offense or have been present for the purpose of assisting.” 1 Witkin & Epstein, California Criminal Law (3d ed.), § 78, p. 124 (2000). This is unremarkable, and well within the bounds of whichever generic formulation is adopted.

But even if § 484(a) were broader, stealing property from a grocery store is a *1217 “theft” — never mind a “theft offense” An offense constitutes a “theft offense” for purposes of an aggravated felony enhancement if its statutory definition substantially corresponds to the generic definition or the charging paper sets out all the elements of the generic offense. Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 . Here, the PSR recites what Corona-Sanchez was charged with, and what he pled guilty to, and what he was sentenced for — and he contests none of it.

The majority accepts the PSR’s identification of the statute of conviction, but nothing more. I do not believe that either United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir.2000), or United States v. Potter, 895 F.2d 1231, 1237-38 (9th Cir.1990), constrains us to ignore the PSR’s recitation of what the charging document specifically charged in this case. The pre-sentence report in Potter simply described the defendant’s prior conviction without mentioning the specific statutory section under which he had been convicted; the PSR in Franklin described the facts (which the categorical approach precludes a court from resorting to), but not the statute of conviction. Thus, the information in both PSRs was thought unreliable for purposes of enhancing a sentence under the Armed Career Criminal Act, 18 U.S.C. § 924 (e). But the same is not true here. Both the charge and the statutes of conviction are set out, and were relied upon by the district court, properly I believe, in the absence of any objection calling the accuracy of the account into question.

In these circumstances I do not see how United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001), is implicated. There, the question was whether a conviction under a statute that criminalized conduct we had previously held did not qualify as an aggravated felony (solicitation of drug offenses) could be an aggravated felony under 8 U.S.C. § 1101 (a)(43)(B). We held that the conviction facially does not qualify, because the full range of conduct encompassed by the statute does not constitute an aggravated felony. No such question is raised in this case because we have never held that any part of the California theft statute is not an aggravated felony under § 1101(a)(43)(G), and there is no basis for doing so now no matter which formulation of the generic definition is preferred. Given the charge to which Corona-Sanchez pled guilty, there is no possibility that he was convicted for an act that is not a “theft offense.”

Corona-Sanchez also argues that the rule of lenity should cause us to interpret § 1101(a)(43)(G) without consideration of the penalties imposed by state law. Yet this is precisely what § 1101(a)(43)(G) directs us to do. Once it is determined that a theft offense has been committed, the only other condition is that the term of imprisonment be at least one year. In this case, it was two years.

The majority holds that the categorical approach requires us to separate the recidivist enhancement from the underlying offense, leaving a maximum possible sentence for petty theft of six months under Cal.Penal Code § 490. But nothing in Taylor suggests that we must do this. Instead, up until now, we — and other circuits as well — have held that the determinative sentence is the actual sentence imposed. See, e.g., Alberto-Gonzalez v. INS, 215 F.3d 906, 909 (9th Cir.2000); United States v. Pacheco, 225 F.3d 148, 154 (2d Cir.2000); United States v. Graham, 169 F.3d 787, 790 (3d Cir.1999). The majority’s attempt to distinguish Alberto-Gonzalez is not persuasive to me. There, we construed 8 U.S.C. § 1101 (a)(48)(B), which provides for purposes of IIRIRA that “[a]ny reference to a term of imprisonment or a sentence with respect to an offense is *1218 deemed to include the period of incarceration or confinement ordered by a court of law,” as meaning the sentence actually imposed. It is hard to read the word “ordered” any other way, no matter what arguments were made (or not made) in Alberto-Gonzalez. In any event, if the statutory maximum is what matters, I do not agree that the relevant maximum is for a single crime of petty theft because that ignores the reality that Corona-Sanchez was a recidivist who pled guilty to petty theft with a prior pursuant to §§ 488 and 666. There is no getting around the fact that “[p]etty theft becomes a more serious offense when the defendant was previously convicted of this crime,” 2 Witkin & Epstein, California Criminal Law (3d ed.), § 7, p. 27, as Corona-Sanchez was here, and § 666 — not § 490 — prescribes punishment for that offense.

In sum, it is evident to me that a conviction for petty theft with a prior, on charges of stealing beer from a grocery store, for which the sentence imposed was two years, constitutes an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(l)(A). I would affirm.

. I concur in Parts I and II of the majority opinion, and in that portion of Part III(C) where we join other circuits in holding that misdemeanors can qualify as an "aggravated felony” under 8 U.S.C. § 1101 (a)(43)(G).

. Section 666 provides that a person convicted of a subsequent offense (having been convicted previously of petit theft) is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. In *1214 turn, Cal.Penal Code § 18 provides that any offense punishable by imprisonment in a state prison is punishable by imprisonment for 16 months, or two or three years.

. Under the MPC, "theft” comprises theft by unlawful taking or disposition; theft by deception; theft by extortion; theft of property lost, mislaid, or delivered by mistake; receiving stolen property; theft of services; theft by failure to make required disposition of funds received; and unauthorized use of automobiles and other vehicles. Model Penal Code §§ 223.2-223.9.

. Black's Law Dictionary (6th ed.1990) defines "theft” as:

A popular name for larceny. The act of stealing.... The fraudulent taking of personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.

It is also said that theft is a wider term than larceny and that it includes swindling and embezzlement and that generally, one who obtains possession of property by lawful means and thereafter appropriates the property to the taker’s own use is guilty of a "theft”....

Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c) Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.

Black’s Law Dictionary 1477 (6th ed.1990) (citations omitted). "Larceny” is defined as:

Felonious stealing, taking and carrying, leading, riding, or driving away another’s personal property, with intent to convert it or to deprive owner thereof.... The essential elements of a "larceny” are an actual or constructive taking away of the goods or property of another without the consent and against the will of the owner or possessor and with a felonious intent to convert the property to the use of someone other than the owner.

Id. at 881 (citations omitted).

.The BIA crafted a definition for “theft offense” by reference to the Model Penal Code, Black's Law Dictionary, and federal as well as state statutes in In re V-ZS, Interim Dec. No. 3434, 2000 WL 1058931 (BIA Aug. 1, 2000). It concluded that a taking of property "constitutes a 'theft' whenever there is criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Later, in In re Bahta, Interim Dec. 3437, 2000 WL 1470462 (BIA Oct. 4, 2000), the BIA construed use of the parenthetical "(including receipt of stolen property),” and held that it was intended to clarify that the term "theft offense” did not require proof that the offender was involved in the actual taking of property.

. The majority states that theft of services has generally not been included within the scope of ordinary theft statutes because "services" were not considered to be "property,” citing to the MPC commentary to § 223.7. Maj. op. supra at 1208 . I don't read it this way. The MPC itself includes theft of services in § 223.7, and the Commentary does not exclude them. The Commentary indicates that labor or professional service, though arguably viewed as a species of property, had not been included in the traditional scope of that term in ordinary theft statutes but that since promulgation of the Code in 1962, more than half of the states have enacted theft-of-service provisions. See American Law Institute, Modern Penal Code and Commentaries II § 223.7, cmt. 1 (1980).