# Van Don Nguyen v. Holder

> Court of Appeals for the Sixth Circuit · July 2, 2009 · 571 F.3d 524

URL: https://www.frixlaw.com/law-library/cases/9572590

## Case

- **Full name:** VAN DON NGUYEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 2, 2009
- **Citations:** 571 F.3d 524; 2009 U.S. App. LEXIS 14838; 2009 WL 1884362
- **Precedential status:** Published
- **Opinion:** Concurrence by Griffin
- **Judges:** Merritt, Griffin, Kethledge
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GRIFFIN, Circuit Judge,
concurring in the judgment.
I concur in the judgment, but do not join the majority opinion because I disagree with its obiter dicta.
The question presented in this petition for review is whether petitioner’s California state conviction for “grand theft,” 1 California Penal Code § 487 (1989), qualifies as a “crime of violence” and thus an “aggravated felony” for purposes of 18 U.S.C. § 16 (b).
Because the government does not claim that petitioner’s conviction qualifies as a crime of violence under 18 U.S.C. § 16 (a), the majority’s analysis of the elements of the offense is misplaced. Similarly, the majority’s focus strays in its discussion of the “rule of lenity” and crimes by a “murderer, rapist, robber or others who take property by force against a person.”
The dispositive inquiry does not pertain to the elements of the offense or risks of physical force to a person, but whether the conviction for grand theft “by its nature, involves a substantial risk that physical force against the ... property of another may be used in the course of committing the offense.” 18 U.S.C. § 16 (b). I agree with petitioner that California grand theft does not involve, in its ordinary or natural sense, a “substantial risk” that physical force may be used against property. See Leocal v. Ashcroft, 543 U.S. 1, 8-11 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004).
For this reason, I concur in the judgment.
. The majority refers confusingly to this conviction in the various terms of ''unauthorized use of an automobile”; “theft of an automobile”; "auto theft”; and “grand theft.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9572590. Public record. Not legal advice.