# Nugent v. Atty Gen USA

> Court of Appeals for the Third Circuit · May 7, 2004 · 367 F.3d 162

URL: https://www.frixlaw.com/law-library/cases/9816446

## Case

- **Full name:** Errol O’Neil NUGENT, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent; Errol O’Neil Nugent, Appellant v. Patricia Mullin, Assoc. Special Agent in Charge of the Philadelphia Office of United States Immigration and Customs and Enforcement (USICE) of the Department of Homeland Security; Theodore Nordmark, Assistant District Director for Deportation and Detention of USICE in Philadelphia the Department of Homeland Security, Appellees
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 7, 2004
- **Citations:** 367 F.3d 162; 2004 WL 991725
- **Precedential status:** Published
- **Opinion:** Concurrence by Rendell
- **Judges:** Sloviter, Rendell, Aldisert
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9816446

## Opinion text

RENDELL, Circuit Judge—
Concurring.
I am pleased to join in the majority’s scholarly opinion. As amply demonstrated by the majority’s historical exegesis, theft by deception is a hybrid crime that is both a theft offense, 8 U.S.C. § 1101 (a)(43)(G), and an offense involving fraud or deceit, 8 U.S.C. § 1101 (a)(43)(M)(i). Therefore, in order to qualify as an aggravated felony, it must be shown that Nugent’s conviction for theft by deception qualifies under the statutory definitions for both theft offenses and fraud/deceit offenses. I think this is necessary to carry out Congress’s intention. Nugent’s conviction was for an offense that involved deceit resulting in a loss of less than the $10,000 minimum set forth in (M)(i). However, while I applaud Judge Aldisert’s logical tour de force in *180 devising a way to reason to this conclusion under the statute, I write separately to stress that this logic should not compel that we combine definitions within this section, as a general rule. Rather, only where an offense is a hybrid — as I submit theft by deception is — and the aggravated felony classifications contain two distinct, clearly applicable tests, should we conclude that both must be fulfilled in order for the offense to qualify as an aggravated felony.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9816446. Public record. Not legal advice.