Opposition Brief — Gonzales v. Penuliar (No. 05-1630)

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Supreme Court, U.S

“FILED

} i) ‘AUG 2 3 2006

CLERK.

No. 05-1630

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

Vv.

NOPRING PAULINO PENULIAR,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

CARTER G. PHILLIPS JOEL S. FELDMAN

PAUL J. ZIDLICKY MELANIE JO TRIEBEL*

SIDLEY AUSTIN LLP SIDLEY AUSTIN LLP

1501 K Street, N.W. One South Dearborn

Washington, D.C. 20005 Chicago, Illinois 60603

(202) 736-8000 (312) 853-7000

Counsel for Respondent

August 23, 2006 * Counsel of Record

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 2000

QUESTION PRESENTED

Did the court of appeals correctly apply Taylor v. United

States to conclude that California Vehicle Code Section

10851(a) (Unlawful Taking of a Vehicle), which includes as

principal offenders aiders and abettors and accessories after

the fact, is not categorically a “theft offense” under the United

States Immigration and Nationality Act?

(i)

TABLE OF CONTENTS

Fe Re BRI BED vie revinteverrictinnapapinctvberesinghcogses

TPE BATTED oxtievicsensicsesvernssivigueastoersbopanens

EPA SEROEI EE CE BES Re icrsepeistssicarecencnsaswasvecesinetanens

Fi. PCI TIONING icin ccpicsccensccsuviecasnccviestas

Bh EY THAIN iii ccs siscesenscisvcencvcceisenannes

OC PROCODER TIACKRTOUING 5. siiiaccncsccossiccssncsedessnerne

REASONS FOR DENYING THE PETITION .....000....

Il.

il.

IV.

THIS CASE IMPLICATES NO CONFLICT

AMONG THE COURTS OF APPEALS THAT

WARRANTS THIS COURT’S REVIEW ..............

THE PETITION SHOULD -BE DENIED

BECAUSE THERE IS NO PRESSING NEED

FOR THE COURT TO RESOLVE THE

CPR Feae ARIE FEN REGED pias sdicrescsavedrecssspreveitaneions

THIS CASE IS AN -INAPPROPRIATE

VEHICLE TO RESOLVE THE QUESTION

PURSE EAE ei in ie

THE PETITION SHOULD BE DENIED

BECAUSE THE DECISION BELOW DOES

NOT CONFLICT WITH! ANY DECISION OF

THIS COURT AND IS CORRECT ON THE

ET siciicepres cis seisblonmaabncin iotebilarncianbanine

A. Section 10851(a) Of The California Vehicle

Code Encompasses’ Both ~ California

Accomplice Liability And _ Traditional

Accessory After The Fact Liability .............0......

B.A Majority. Of States Recognize That

Accessories After The Fact Are Guilty Of A

OI CIE initio cdaesa das cotioeenticien Aesehescccas

(iii)

Page

TABLE OF CONTENTS — continued

Page

C. Section 10851(a) Of The California Vehicle

Code Is Also Outside The Mainstream In Its

Inclusion Of California Aiding And Abetting

LRW visccseses NEI PEL DEEN TONE EDO OTS) Ri SCTE A AERC IER RO OO 24

_ Vv

TABLE OF AUTHORITIES

CASES Page

American Constr. Co. v. Jacksonville, Tampa &

Key W. Rv., 148 U.S: STZ (1GGS) ocicescccsesicesceneenss 3

Brotherhood of Locomotive Firemen v. Bangor &

Aroostook R.R., 389 U.S. 327 (1967) ......eee eee 19

Davis v. United States, 417 U.S. 333 (1974)........... 2,14

Fiallo v. Bell, 430 U.S. 787 (1977) ........ccscceee ieinaieen 8

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

Oe asthe ee UF BR bun hdekssiccksteicnitaleviensbtesvceveientess 3,19

Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th

ag I hisses bssckdnais Chesed seeeninshcomnicpmbaanueneawoeees 5

Jahnke v. State, 6°2 P.2d 911 (Wyo. 1984) ............ 26

Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005),

cert. denied, 126 S. Ct. 1142 (2006) (No. 05-—

475), 126 S. Ct. 1145 (2006) (No. 05-7510)........ 26

Nye & Nissen v. United States, 336 U.S. 613

EAU c cisredicieacchiunnssmbeniaviciladan isnt tea daactstn ecdswaianage 26

People v. Clark, 251 Cal. App. 2d 868 (1967)........ 21

People v. Croy, 710 P.2d 392 (Cal. 1985)............... 26

People v. Cunningham, 506 N.W.2d 624 (Mich.

Se Na FO ss cacnciscuiscovchacticedinidccsnuachoepectecnveaieoses 23

People v. Prettyman, 926 P.2d 1013 (Cal. 1996)..... 26

People v. Verlinde, 100 Cal. App. 4th 1146

EEE Benne jeciushothi agsasinnscasesawiiiarenstinseeneseevebicinansionts 21

Soliman v. Gonzales, 419 F.3d 276 (4th Cir. -

I tiisin cchscasnsnccahiagiicap chen sesiepudvicelsebenistanss sella 5

State v. Carrasco, 946 P.2d 1075 (N.M. 1997)....... 26

State v. Gazerro, 420 A.2d 816 (R.1. 1980) ............ 26

State v. Gonzalez, 12 P.3d 382 (Idaho Ct. App.

MOTE Soelbash isk scene store cdatanorinilocelcteenaciaeediveenbaes 26

State v. Legette, 330 S.E.2d 293 (S.C. 1985) .......... 23

State v. Pitts, 800 A.2d 481 (Vt. 2002) ....... 26

T.B. v. State, 732 So. 2d 1163 (Fla. Dist. Ct. App.

PE eeiaiccaiica sc caipove cota uiccrindaiernaucsWsocabaasoios 26

TABLE OF AUTHORITIES — continued

Page

Taylor v. United States, 495 U.S. 575 (1990)......... 5,21

United States v. Baca-Valenzuela, 118 F.3d 1223

SO Es ET Biaisuicsicosiaicbinaeccdsectviatmenteuasubuaies 11,12

United States v. Groce, 999 F.2d 1189 (7th Cir.

SPA E ssithincsisasspesaseladesihiaykeihadeestaieeaidansacaaimabannies 1]

United States v. Hathaway, 949 F.2d 609 (2d Cir.

SPIED siicdaiicocasdicidsacapsiouboiunscbie ieeiaasiuteisidauiaa Taljuial Cua eas 1]

United States v. Innie, 7 F.3d 840 (9th Cir.

SPDT sisssasokeicprctudesahtiailadididgiatie gil dikag ec liae eetd 21

United States v. Mitchell, 23 F.3d 1 (1st Cir.

SOR ith scitdanivtsibauiipaceseaindiaianametbume it cnaits 11

United States v. Morrison, 972 F.2d 269 (9th Cir.

eh HRN SGA WEA eV DEO Peers Cae ViaSat Fa aN 17

United States v. Vidal, 426 F.3d 1011 (9th Cir.

2005), vacated by grant of reh’g en banc, 453

F36 T EEG OCW. CGS sivisicisiieth eden 7,93

United States v. Vidal, 453 F.3d 1114 (9th Cir.

PIE oesorheicbacen cence esata siniaaigbaciplibaclenuabie astcedatiirisatss 14

United States ex rel. Robinson v. Johnston, 316

BS FE OF Bs cissdssieosssss menceekctacnsincadesoubimanianodicn 14

Virginia Military Inst. v. United States, 508 U.S.

Fg a Ekg Te OND CERIN C ORE ET Ear 19

Windham v. Merkle, 163 F.3d 1092 (9th Cir.

PPD sess csccricinciaiitatactnsaceruciniuaeioeteceks becaskeiesan ee

STATUTES

OSes 6 FINS sisi ciccndaniidcucsin 4,6, 25

Bas 3 a GY 7 | | ieee ema t sipdeeessahctie 4

rec We ach dcivacistcusanndd oacacomsoeennsaeipeoiaeaiotans 26

BAG. SRL Se SE Rey eI ROME DON Mi SRLS MRT Pa.

OR ER 2 UR SS | 7Zetunrcer eae cig we UMNO he ie nD earner eae 17

geek We fo”) RSAC RRamiaramerncamonerne st Caper nacrn 1]

WUSC SHNGEND. 12

Vii

TABLE OF AUTHORITIES — continued

Page

Be Rea, oF i t cinacisicdsencisstsctbastveisaierene 12

Ala. Code §§ 13A-10-42 to -10-45 woo eee eeeeeees 23

Pa ey Ue Giaitcintncacipsscccotescdciocsnisdertescer 26

Se 0 LE, vikihcccaneeitichindedisaidenthivianasetenss 24

Alaska Stat..§ 11.16.1100... eee scccaaalelanaas 26

PE DURES FT LG isisiisstsictcncictncseratedteeinctivess 24

PRR as 8 CO iirc icdetersssniseectintsesscsiontitenice 24

PAE SII Es FI esetctcdsnes cote siimcsysctenrwctbvnivios 23

Piste. eV. Stat. Arete. © 13-1GO2 oi cecccsecesccesevervnresveses 24

Ariz, Rev. Stat. Ann. § 13-1616 .......ccccerccscoserscesesess 24

Ariz. Rev. Stat. Ann. §§ 13-2510 to -2512......0....... 23

PSs. REV. SI, B.S TS SON va iiressesersecnsecsesencnseevae 26

PAI SOE FAIRS SHS pais sisaieeticcdecevsincacscssicceees 26

FER CG FIN. SIS civic cccvsrcstoicgensscctensesievie 24

FE TE PS SO ivsiscccessivi sscnsseicessrsenscazers 24

PAT, COI AI BO 1S ii ic cvcecc sv cscecscerctccecerese 23

Ons BOI SI iis ches cs rnvactcdachctdncececacceti 6, 20, 21

OE PUN AONE OA. stints dcehecscoinavtavaceentinsede 6, 21, 25

Cee Ae pila eeccimssnsincactesnsdccohevesncesensede 24

OR VOR Ge © FSI) occsccitcerectensessscetessesoeiacesse 6, 21

Se PY SI BOIS sav ccscentninevcccngcerenensioovenee 24

COO FY TUE, BB i csiicsniedosbcsecsastsvenoeaisivncs 24

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SON, FR OR Be TD anos cciccenccccscesessccecesesis 26

A emeee SOU, TUE BS DSR EE iin cik occ rcceipsicecsncoconenave 24

Comms, Ca0n. SO0t, S BSG EY GD: cicssicccsscesvesssesecesceecereress 24

Conn. Gen. Stat. §§ 53a-165 to -167 .0.... eee 23

Ee © OE PIE OE FA 2 ikiceasrsseticccesccciasinccins 26

pret. Code Ann: tit, 14, 3 BY voici ccvcccccccsessccvcccvsscceone 24

NE A OO PANNE AE. 0g PIS vcie chvicpscocnctcannsansdepicsn 24

Det. Code Asn: t3t..11,.§ 12464 ac ccccccessiccicccees: PRES 23

es OE SMB IU siccsieein Lab coca dpssnssebiccrbisaccddinns 22

2 ONE BO” EB 9.2 9 Ae Rae eae Ee OR USE Oe 24

Vili

TABLE OF AUTHORITIES — continued

Page

DR GR Fs 1 PT 25

Ti Ne eae seisanbidaceviedeieveveceescvesoes 2

= RI ET A Oe acta ciecsuctcosenriavigseoseses 24

Cie, CODE FIR © Be i sverersesscvcncecinscecesnvevescoveess 26

CH CS Fra re arisen ceeesederdecececevocnerscees 24

C5, SOS FARE 8 te aticcescrtcntaciesacnsiesecescessess 23

BROW. PROV. CURE, © PCIe cedverencescecsetsvncecésccevessoceess 26

PEQW., TREY: SUE SP sivcccncnsiarccnscccrsscccteceveseses 24

Haw. Rev. Stat. §§ 710-1028 to -1030..000000 23

EGRIO COGS PATE Bi Be vetsicissocsnestsssdccececcovccsvcoses 22

idaho CODE AiR, © EB-29GS veciccssseccssvsnscsecsccecsssesove 24

FE TEs SOOM, Fotis PO soncpuiatnassneniceccservedoeevevensiees 26

TAA ROI Bee FINE becicsceeskncicdesoscvestcccssesceoers 24

FAAP ER, SOR, et SO she veenacenaneienercbeciseccssecesernss 23

FLO TEA, CU, ee FI cai irsihntddeesansnicececencsercevees 23

Drak CMe Fe Pete iadaccprscececsdasbvbasieesncssccnssssevece 24

Bei Ge iis sevsnsescecess 24

TUE: CR Fe ite isctisncavicnssccdscodesescssensees 23

SON Ge asa ioca oer eichiyntccecnssivctnsanccesionsss 22

eg CSO 24

DOVE I Bg ic ai sddhenhchecesssceccecsarecssoes 24

Oe co. . 26

Se BES SEI 24

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KRY. OV: SURE, PAE BPO rcccsiereces rovesessccsssconsoses 26

Ky. Rev. Stat. Ann. $ 374.050..................+.... steassinen 24

Ky. Rev; GWE, FAs © tt, Bi leccccincscetececvsesespsesecceces 24

Ky, REV, Stee Fett 6 tones sesececaccicecsvesecseverese 23

IY FRG: ees Pt a ee Ml rccstincssasevaseicscciessccosees 23

Eh Fe i i eaiaatieivesiesednvevcesseccoeneess 22

Bi PROV, ee Fa BIE sees thcccscncodcdvcaccesesceceveress 24

EB. RV. SURE, FA I wo dacsccccsciessuccessececscncces. 24

Me. Rev. Stat. Ann. tit. 17-A, § 353...;........cccccsceeees 24

Me. Rev. Stat. Ann. tit. 17-A, § 360....0.000000 ee. 24

TABLE OF AUTHORITIES — continued

Page

Me. Rev. Stat. Ann. tit. 17-A, § 753.0... seeeeeeeee 23

Md. Code Ann., Crim. Law § J-30] ...... eee eee 22

Md. Code Ann., Crim. Law § 7-104 0... 24

Md. Code Ann., Crim. Law § 7-105 .................00000 24

Mass. Gen. Laws Ann. ch. 266, § 28..............c.c000088 24

Mass. Gen. Laws Ann. ch. 266, § 30... 24

Mass. Gen. Laws Ann. ch. 274, § 4........::ccscecsseereees 22

Mich. Comp. Laws § 750.356 ...cccccsesssesercsveseceseeseres 24

RNR, (lta: Ene BFS GUD cietnsecessssevsevconecesnvnnnts 23

Minn. Stat. § 609.52 ...........00+. piniivcadiaiemaimceuiesinlioniols 24

PU SIO, BG AIG eicecsccticvisnschensvesaoceteccceonecioennecine 23

Piliae, Se AM, BRP EAS ciciciccicsrsocsisiancicninnesabinsnens 22

Miss. Code Ann. § 97-17-41 .........cceesessssceecessereeees 24

PEN. PRT, CRN Be RE ATE caciscchisdcsnciccadvovsrcinentenssccsnes 26

OD. TROY, SOE. BD FOG iesivisereciccsscessccvosesseveseverseees 24

PAD. FURY. DAR, 2 SIRI cecninssnveprsinieictawssaniateiniveni 23

Mont. Code Ann. § 45-6-301 ............:ccccscecescecessecees 24

Mont. Code Ann. § 45-6-308 ...........eceececeeeeeceeeeeeeees 24

Mont. Code Ann. § 45-7-303 ........cccececeseseeeeseeeeees 23

FUGRD: TERY... THR: BRL ovsavsssvsicisevecinvssternoncanennvenses 22

PUR BW SOE BZD EE a scrisis nis jeescnsisttirrsesneceinnoconins 24

NOV. REV. SUM. S POS TIO. vas ccccicccsoxcoeversvesensensscoveses 22

Nev. Rev. Stat. § 205.0832.........cccscessseseess Scdiboaaaesen 24

OG, TRG. RB POD i ines cliceseseccccdovensicvsines 24

PUF ROV. BURR, Amie, 9G 268 nc icnccevcesscenscccssasciaveerse 26

Pars Ue, is FAN, BT Si vadsiccsceentoepterensccioes 24

NEE: Rev. SOQ. Ants. § GO255....ncccscevecvscsecevosssesseereses 23

Pie Ss PRU Bi beara asclnicescetiastnicaniantal 26

a. | Ae Reena en rt ee MRM Ot RCS ie EON 24

Pd Se: Fa Be ai ciccaschccaccknntaisesoctastiaeatotles 24

PEF: BOR, PO BaD oh cvtsqnevserscsvvisvnctsowenascioinses 23

De eR a ic ssevicoscnececsictceicasadacasentoioiicoae 23

Bs Ns We EN aaceccyssctcconsvnshdeiababernesioinuieecieen 24

PO eee Lt 6 SOS BS ssveciictbccccnntiacion 24

TABLE OF AUTHORITIES — continued

N.Y. Penal Law § 165.08. ............

N.Y. Penal Law §§ 205.50 to .65

N.C. Gen. Stat. § 14-7 we.

N.C. Gen. Stat. § 14-72 ...0.......

N.C. Gen. Stat. § 14-72.2 ...0.00.0...

N.D. Cent. Code § 12.1-03-01.....

N.D. Cent. Code § 12.1-08-03.....

N.D. Cent. Code § 12.1-23-02.....

N.D. Cent. Code § 12.1-23-06.....

Ohio Rev. Code Ann. § 2913.02.

Ohio Rev. Code Ann. § 2913.03.

Ohio Rev. Code Ann. § 2921.32.

Okla. Stat: tit. 27, § 173...............

Okla. Stat. tit. 21, § 1701.00.00...

Okls. Stat. tit. 23, § 1720.............

Or. Rev. Stat. § 161.155 0.00.0...

Or. Rev. Stat. § 162.325 ..............

Or. Rev. Stat. § 164.015 ..............

18 Pa. Cons. Stat. § 306...............

18 Pa. Cons. Stat. § 3921.00.00...

18 Pa. Cons. Stat. § 3928...:.........

18 Pa. Cons. Stat. § 5105.............

R.I. Gen. Laws § 11-1-4.....000.....

R.I. Gen. Laws § 11-41]-1 ............

S.C. Code Ann. § 16-13-30.........

S.C. Code Ann. § 16-21-60.........

S.C. Code Ann. § 17-21-60.........

S.D. Codified Laws § 22-5-3.......

S.D. Codified Laws § 22-3-5.......

S.D. Codified Laws § 22-30A-1..

S.D. Codified Laws § 22-30A-12

Tenn. Code Ann. § 39-11-411.....

Tenn. Code Ann. § 39-14-103.....

Tenn. Code Ann. § 39-14-106.....

Page

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ehuchntacasiacancunvad 24

via ncidad com suhaclipeae “3

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dis pnendabadladiopoacielaaee 24

ioahcsal becisalscdadiiaadgilioes 25

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TABLE OF AUTHORITIES — continued

Page

Tex. Pendl Code Attn: $51.03 .cccccccccevscsersscosssossosees 24

Tex. Penal Code Atte. $: S107 iccciscccsssissccsescosiessvesess 25

TOk; Penal COG! ARN. § F500 ii. ccscrcicscssiccosscivsesconees 23

Utah Code Ann. § 76<2-202 2. .ccccsccsccscoscsesscesscceocenee 26.

Utah Code Ann. § 76-6-404 00.0... ecceecesereceeeeeeees 24

Utah Code Ann. § 76-8-306 ...........ccccsesscsscssseseeeesee 23

As Ses PRM FAC Presa cnt tact oentndconivrcaisbetpnaietess 22

Ls UE, PAN TE Ts Bh ROS sissecciesesesnigessvensivioaiesetas 24

Vb Ce PRM, BBE isicdsvcrsieiesiovaviccasponsxeearvvinsss 22

SOE FE D2 crs tivvtincvinicrsnsnissesvepsinescoons 24

Wash. Rev..Code § 9A:56.020 on eiccsissccesessscevsosencsseess 24

Wash. Rev. Code § 9A:56.070 ...:..:.ccccccsccecsssocecssnees 25

Wash. Rev Code § GA. 16.0 cvciscscscssesiosatseveicssoee 23

Be Re RGD eivcticveniereupanecniccnoncovasevenendes 24

TE. PAA GED oi esisiviskocssnceseaceenvecsscesernesiine a2

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RULE

ANN GR Pi AMOR iiksecbeaiiensnindepiovidhcessndburdansiaxviadeipiaies 8

LEGISLATIVE HISTORY

Comprehensive Immigration Reform Act of 2006,

S. 2611, 109th Cong. (passed May 25, 2006)...... aie

Border Protection, Antiterrorism, and Illegal

Immigration Control Act of 2005, H.R. 4437,

109th Cong. (passed Dec. 16, 2005)................ 5, 15

xii

TABLE OF AUTHORITIES — continued

SCHOLARLY AUTHORITIES Page

Susannah Rawl Cole, Sewing up the Loophole in

Accessory Afier the Fact Crimes, 50 S.C. L.

PRE «EE CPD incisisiniinsstenivtdeniietendeidiacbedndenebiniasi 23

Candace Courteau, Comment, Zhe Mental

Element Required for Accomplice Liability: A

Topic Note, 59 La. L. Rev. 325 (1998)................ 26

2 W. LaFave, Substantive Criminal Law (2d ed.

P| ERTS SRO EN ee CR LOE TN AOE PS OREN 22, 26

Rollins Perkins, Parties to Crime, 89 U. Pa. L.

ee Se Le TIED eiciuciecesesstbialetestacitctebicaittahabckaiianbaiiciens 23

Robert L. Stern et al., Supreme Court Practice

Te: RAMON EMAC CEN erated eB 3, 14, 18, 19

OTHER AUTHORITIES

Form EOIR-4 (filed July 17, 2002) 0.0.0... eeeeee 3

Form 1-261 (filed July 11, 2002) .......0.... eee sci a

Form 1-862 (filed July 17, 2002) ..0....... cece eeeeeeeeees 6

Pe Fe SG OF SPIEL F viicccstuostaeeesenenaneecpihceneeeeens 22

iy OSE GX Re BERR Cac ona cern eo ere Res 25

Nopring Paulino Penuliar respectfully submits _ this

opposition to the Attorney General’s petition for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit.

STATEMENT OF THE CASE

In his Petition (“Pet.”), the Attorney General asks this

Court to grant certiorari in the separate case of Gonzalez v.

-Duenas-Alvarez, No. 05-1629, and to hold this case pending

resolution of Duenas-Alvarez. Pet. at 8-9.' The petition for

certiorari should be denied.

First, there is no conflict among the circuit courts on the

question presented by Petitioner. The cases allegedly creating

a conflict in “analytically indistinguishable circumstances,”

Pet. (Duenas-Alvarez) at 11, involve neither the Immigration

and Nationality Act (“INA”) nor criminal “theft offenses,” let

alone criminal statutes remotely similar to the California

vehicle theft statute at issue here. /d. at 11-14. But even if

cases involving matters such as the federal sentencing

guidelines could create a legitimate conflict with the

application of the INA in this case, the Ninth Circuit recently

granted en banc review to address a sentencing guidelines

decision that reaches the same result as the circuit decisions

that the Attorney General contends are in conflict with this

case. United States v. Vidal, 426 F.3d 1011 (9th Cir. 2005),

vacated by grant of reh’g en banc, 453 F.3d 1114 (9th Cir.

2006). Thus, even if the Petition were correct in alleging a

circuit conflict — and it is not — at most, there would be an

' The Attorney General’s Petition for a Writ of Certiorari in Gonzales v.

Duenas-Alvarez, filed with this Court on June 22, 2006, is cited herein as

“Pet. (Duenas-Alvarez).” Because the Attorney General provided no

substantive argument for a grant of certiorari in this case, instead asking

for this case to be held in light of his petition in Duenas-Alvarez, citations

to the arguments raised by the Petitioner are made to the Petition in

Duenas-Alvarez.

intra-circuit conflict that should be, and is being, addressed in

the first instance by the en banc court of appeals. See Davis

v. United States, 417 U.S. 333, 340 (1974) (Harlan, J.)

(“decisions between different panels of the same Court of

Appeals will not be considered to present a reviewable

conflict, since such differences of view are deemed an

intramural matter to be resolved by the Court of Appeals

itself”). 3

Nor is there a pressing need to resolve the issue presented

in this case. As noted, there is no conflict among the courts

of appeals. Further, as the government admits, both the

Senate and the House of Representatives have passed

legislation that would address the question presented in the

petition by expanding the INA’s definition of “aggravated

felony” to include, inter alia, “aiding [and] abetting . . . an

offense” that qualifies as an “aggravated felony.” Pet.

(Duenas-Alvarez) at 21-22 (internal quotation omitted). As

such, a ruling by this Court interpreting the scope and

meaning of the INA might have limited, if any, continuing

significance in light of this pending legislation.

Even were the issue presented in the petition urgent,

however, this case is not an appropriate vehicle for resolving

that issue. This case involves a California statute that

uniquely includes as principals traditional accessories after

the fact. Pet—App..30a. Because this statute includes

accessories after the fact, this Court could affirm the decision

of the court of appeals based on the broad scope of the statute

without ever reaching the “aiding and abetting” issue

identified by Petitioner. Further, the Attorney General

himself argues that there is a threshold jurisdictional question

that potentially could prevent the Court from resolving this

case on the merits. Pet. 8-9. The Petition does not suggest

that this threshold question is independently worthy of this

Court’s review. /d. Indeed, the threshold question of

exhaustion identified by the Petition involves a fact-intensive

review of the record that the Attorney General contends calls

into question the jurisdiction of the court of appeals. In short,

this is not a proper vehicle to resolve the question presented.

Nor should this case be held pending the resolution of

Duenas-Alvarez, because certiorari should be denied in that

case, as well. In addition to the reasons set forth above,

review of the court of appeals’ decision in Duenas-Alvarez

would be inappropriate because that case was remanded back

to the Board of Immigration Appeals (“BIA”) to apply the

second prong of the two-part approach set forth by this

Court’s settled precedent. The interlocutory nature of that

decision is itself a basis for denying review. E.g., Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916). That is particularly so where there is no conflict

among the courts of appeals, there is, at most, an intra-circuit

conflict for which rehearing en banc has been granted, and

there is pending legislation passed by both houses of

Congress that, if enacted, could render any ruling meaningless

in future cases. /d.; see also, e.g., American Constr. Co. vy.

Jacksonville, Tampa & Key W. Ry., 148 U.S. 372, 384 (1893):

Robert L. Stern et al., Supreme Court Practice § 4.18, at 260

(8th ed. 2002).

Finally, certiorari should be denied because there is no

allegation that the decision below conflicts with any decision

of this Court. To the contrary, the court of appeals’ decision

was substantively correct, as it faithfully applied the approach

set forth in this Court’s cases to the specific language and

structure of Section 10851(a) of the California Vehicle Code.

A. Factual Background

Nopring Paulino Penuliar is a native and citizen of the

Philippines who legally immigrated to the United States on

June 12, 1995, when he was 15 years old. Form EOIR-4,

(filed July 17, 2002) (A.R. 67-74). Mr. Penuliar has

extensive family ties in the United States. His daughter

Marilyn, a United States citizen, was born on March 16, 1998

to Mr. Penuliar’s domestic partner, Glenda Alejo. also a

United States citizen. /d. (A.R. 70). Additionally; Mr.

Penuliar’s mother Prudencia is a United States citizen. /d.

Mr. Penuliar also has four siblings, Gelacio, Virgilio, Dora,

and John, who are all lawful permanent residents of the

United States. Jd. (A.R. 70, 74).

As is relevant here, on June 30, 2000, Mr. Penuliar pled

guilty in the State of California to the Unlawful Taking of a

Vehicle under California Vehicle Code Section 10851(a)

(“Unlawful Taking of a Vehicle”). Pet. App. 42a-44a. He

was sentenced on December 13, 2000 to two years

imprisonment for this offense. Jd. Also on December 13,

2000, Mr. Penuliar pled guilty in the State of California to a

second charge of the Unlawful Taking of a Vehicle, as well as

a charge of Evading an Officer under California Vehicle Code

. Section 2800.2(a) (“Evading an Officer”). /d. at 48a-52a. He

was sentenced to three years imprisonment for each charge, to

be served concurrently. /d.

B. Statutory Background

Aggravated Felonies Under the INA. Under the INA,

several classes of immigrants legally present in the United

States are nonetheless subject to removal. 8 U.S.C.

§ 1227(a). They include individuals who have been convicted

of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(ii1).

The INA defines aggravated felony to include a long list of

various types of offenses, including “a theft offense” and “a

crime of violence.” 8 U.S.C. § 1101(a)(43)(F) & (G). The

INA expressly provides that an aggravated felony includes

“an attempt or conspiracy to commit an offense described in

this paragraph.” but nowhere states that the definition

includes aiding and abetting the commission of such an

offense. 8 U.S.C. § 1101(a(43)(U).’

> Both the House and Senate have passed bills that would amend the

INA to add language expanding the definition of “aggravated felony” to

include “soliciting. aiding, abetting, counseling, commanding, inducing,

procuring or an attempt or conspiracy to commit an offense described in

To decide whether a particular offense constitutes an

aggravated felony under one of the categories listed in the

INA, the courts of appeals use a two-step approach. This

system was promulgated by this Court in Taylor v. United

_States with regard to the list of offenses included in the

Armed Career Criminal Act. 495 U.S. 575, 599-602 (1990)

(interpreting 18 U.S.C. § 924(e)); see, e.g.. Soliman vy.

Gonzales, 419 F.3d 276, 284 (4th Cir. 2005); Huerta-Guevara

v. Ashcroft, 321 F.3d 883, 886-88 (9th Cir’. 2003). Under

Taylor, a reviewing court first assumes a “categorical”

approach, comparing the statute at issue to the “generic”

definition of the category of offense in the INA. The generic

definition is determined by reference to state law, and should

“correspond[] to the definition[] of |the category of offense]

in a majority of the States’ criminal codes.” 495 U.S. at 589.

If all conduct covered by the statute at issue is also covered

by the generic definition, then a conviction under that statute

is categorically a conviction for an aggravated felony under

the INA. If, however, the statute also covers conduct outside

the generic definition, then courts assume a “modified

categorical’. approach, wherein they review the record to

determine whether the conviction of the individual in question

still falls within the generic definition.

California’s Unlawful Taking of a Vehicle Statute.

Under California law, a person violates Section 10851 of the

Vehicle Code if he “drives or takes a vehicle not his or her

own, without the consent of the owner thereof, and with intent

either to permanently or temporarily deprive the owner

this paragraph.” Border Protection, Antiterrorism, and Ilega. iamigrant

Control Act of 2005, H.R. 4437, 109th Cong., § 201(a)(3) (passed Dec.

16, 2005); see also Comprehensive Immigration Reform Act of 2006, S.

2611, 109th Cong., § 203(a)(5) (passed May 25, 2006) (amending

§ 1101(a)(43(U) to define “aggravated felony” to include “aiding or

abetting an offense described in this paragraph, or solicting, counseling,

procuring, commanding, or inducing another, attempting, or conspiring to

commit such an offense’’).

thereof of his or her title to or possession of the vehicle.” Cal.

Veh. Code § 10851(a). A person may also be guilty under the

Statute if he “is a party or an accessory to or an accomplice in

the driving or unauthorized taking or stealing.” /d. California

criminal law usually distinguishes between principals and

those who assist a principal after the offense is committed.

Cal. Penal Code § 31. The presence of the term “accessory”

*in Section 10851(a) of the Vehicle Code, however, allows an

individual to be convicted as a principal even if that person

engaged in conduct generally relegated to the separate offense

traditionally referred to as accessory after the fact. See Cal.

Penal Code § 32; see also Pet. App. 14a (“§ 10851(a)

includes accessory or accomplice liability.”).

C. Procedural Background

Initial Removal Proceedings. On April 23, 2002, while

Mr. Penuliar was serving his sentence in state prison, the

Immigration and Naturalization Service (“INS”) served him

with a Notice to Appear, which charged that he was-

removable under Section 237(a)(2)(A)(iil) of the INA because

he had been convicted of “an offense relating to obstruction

of justice, perjury or subornation of perjury, or the bribery of

a witness,” an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(S). Pet. App. 36a. In July 2002, the INS added

additional charges of deportability, alleging that Mr. Penuliar

had been convicted of “a crime of violence,” an aggravated

felony under 8 U.S.C. § 1101(a)(43)(F), and “‘a theft offense,”

an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Form

1-261, (filed July 11, 2002) (A.R. 102); Form [-862, as

July 17, 2002) (A.R. 104).

Immigration Judge Dennis R. James (the “IJ”) held that Mr.

Penuliar’s conviction for Evading an Officer was not an

obstruction of justice offense,-and thus not an aggravated

felony under INA Section 101(a)(43)(S). Pet. App. 39a.

However, the IJ ruled that Mr. Penuliar’s conviction for

Evading an Officer was a “crime of violence” under INA

Section 101(a)(43)(F), and that Mr. Penuliar’s convictions for

Unlawful Taking of a Vehicle were “theft offenses” under

INA Section 101(a)(43)(G). Jd. at 39a-40a. The IJ thus

concluded that these convictions were for aggravated felonies,

and therefore that Mr. Penuliar was removable as an alien

convicted of an aggravated felony. Mr. Penuliar filed a

timely appeal with the BIA on November 25, 2002. /d. at

62a-64a. In a summary order, the BIA approved the decision

of the IJ. /d. at 34a.

Court of Appeals Proceedings. The court of appeals

reversed, holding that none of the convictions was for an

aggravated felony under the INA. Pet. App. 3a. The court

held that evading an officer was not categorically a “crime of

violence” because the California statute did not contain a

mens rea element. /d. at 7a-10a. As is relevant here, the

court of appeals also held that the Unlawful Taking of a

Vehicle was not categorically a “theft offense” because the

California statute is broadly written to encompass all classes

of accessories and accomplices, and thus does not require an

individual to exercise control over the vehicle in question. /d.

at 12a-1S5a. Likewise, the court concluded that the INS had

failed to meet its burden of establishing that Mr. Penuliar’s

individual convictions were for conduct narrower than that set

forth in the broad California statues. /d. at 10a-12a, 15a-17a.

The Attorney General petitioned for rehearing and

rehearing en banc on the issue of whether the Unlawful

Taking of a Vehicle was a “theft offense.” Petition for Reh’g

at 1 (filed Mar. 11, 2005). The Attorney General further

argued that Mr. Penuliar had failed to exhaust his

administrative remedies before the BIA on this issue. /d. at 2.

The court of appeals denied the Attorney General’s petition.

Pet. App. 2a-3a.

On June 29, 2006, the Ninth Circuit granted en banc review

of a pane] decision holding that the Unlawful Taking of a

Vehicle under California Vehicle Code Section 10851(a)

constitutes a “theft offense” for purposes of increasing a

sentence under the federal sentencing guidelines. United

States v. Vidal, 426 F.3d 1011 (9th Cir. 2005), vacated by

grant of reh’g en banc, 453 F.3d 1114, 1115 (9th Cir. 2006).

REASONS FOR DENYING THE PETITION

The petition for certiorari should be denied.

First and foremost, no conflict in authority among the -

circuit courts exists on the question presented by Petitioner.

Sup. Ct. R. 10(a). Indeed, no other circuit court has yet

directly addressed whether a violation of Section 10851(a) of

the California Vehicle Code should qualify, as a categorical

matter, as a “theft offense* for purposes of the INA. The

circuit cases cited by the government do not involve removal

under the INA, and do not even involve purported “theft

offenses,” let alone the specific state statute at issue here.

But even if there could be a conflict between this INA case

-and the various federal sentencing cases identified by the

Attorney General, the Ninth Circuit recently granted en banc

review to address the purported intra-circuit conflict on this

issue. As such, there is no need for this Court to review a

case that, at most, involves an intra-circuit conflict that is

being resolved in the first instance by the Ninth Circuit.

Additionally, legislation passed by both houses of Congress

could render the question presented by Petitioner moot in

future cases. Given this pending legislation, there is no need

for the Court to grant plenary review when Congress itself is

considering the same issue advanced by petitioner in an area —

immigration — where this Court grants substantial deference

to the views of Congress. See, e.g., Fiallo v. Bell, 430 US.

787, 792 (1977) (“it is important to underscore the_limited

scope of judicial inquiry into immigration legislation’).

Indeed, in light of this pending congressional action, any

ruling by this Court might have limited continuing

significance. Under these circumstances, there is no need for

this Court to expend its resources on review at this time.

Moreover, even should the Court determine that the

question presented by Petitioner (whether “aiding and

abetting” is included in the definition of “theft offense” for

purposes of the INA) is ready for and might warrant review in

an appropriate case, this is an improper vehicle to resolve that

question. First, the statute at issue in this case not only

criminalizes “aiding and abetting,” but also extends to include

traditional accessories after the fact as principal offenders.

The breadth of this statute is well outside the mainstream, and

thus is broader than the generic modern definition of “theft

offense” even if “theft offense” were deemed to include

aiders and abettors generally. Accordingly, this case does not

squarely implicate the issue presented by Petitioner.

Nor does the Attorney General dispute that this case is an

improper vehicle to resolve this conflict. Specifically, he

argues that the court of appeals lacked jurisdiction due to Mr.

Penuliar’s alleged failure to exhaust his administrative

remedies. While Mr. Penuliar disputes any suggestion that he

did not exhaust his remedies, Petitioner’s stated intent to raise

this threshold “jurisdictional” issue also renders this case an

inappropriate vehicle for this Court’s review. Because

Petitioner argues that this issue affects the jurisdiction of the

court of appeals, this Court would be required to engage in a

fact-intensive inquiry on this antecedent issue before it could

even consider the merits of the question presented.

Petitioner’s suggestion that this Court hold this petition

pending review in Duenas-Alvarez is also untenable because

Duenas-Alvarez is likewise an inappropriate vehicle for

review. Duenas-Alvarez, another INA “theft offense” case

under Section 1085l(a) of the California Vehicle Code,

suffers from all the flaws rendering this case inappropriate for

review (with the exception of the Attorney General’s intent to

argue failure to exhaust). In addition, Duenas-Alvarez is

inappropriate for review because the court of appeals’

decision in that case is_ interlocutory. Because the

immigration court decision in Duenas-Alvarez did not reach

10 é

the modified categorical approach, the court of appeals

remanded the case to the BIA for further proceedings under

the second prong of the Zaylor analysis. Pet. (Duenas-

Alvarez) at 6. The interlocutory nature of that petition is

therefore sufficient reason for its denial, particularly given the

absence of any pressing. need to resolve the question

presented.

Finally, the decision below was correct. The statute in

question, Section 10851(a) of the California Vehicle Code,

expressly criminalizes both traditional aiding and abetting and

traditional accessory after the fact offenses, which lie outside

the modern consensus on the scope of a “theft offense.” The

statute also incorporates California aiding and abetting law,

which likewise includes conduct outside the modern

consensus. -

I. THIS CASE IMPLICATES NO CONFLICT

AMONG THE COURTS OF APPEALS THAT

WARRANTS THIS COURT’S REVIEW.

The court of appeals’ decision in this case holds that for a

conviction to qualify as a thefi offense under the INA

supporting removal of a lawful permanent resident, the

conviction must include a finding that the resident took or

exercised control over property not his own. Pet. App. 12a-

15a. The court of appeals held that because Section 10851(a)

of the California Vehicle Code includes aiding and abetting

and accessory (i.e., traditional accessory after the fact)

offenders as principals, it does not meet this standard and

therefore did not qualify as a “theft offense” under the INA.

The court’s analysis of Section 10851(a) of the California

Vehicle Code did not purport to apply to any of the many

other categories of aggravated felonies under the INA, or to

any other “aggravated felony” statute. /d.

In contrast, not one of the cases cited by Petitioner

addresses the requirements for a “theft offense,” or even the

requirements for deporting a lawful permanent resident under

the INA. Pet. (Duenas-Alvarez) at 10-15. Specifically, in

United States v. Mitchell, the First Circuit ruled that a “crime

of violence” under the Bail Reform Act (“BRA”) includes

aiding and abetting arson. 23 F.3d 1, 2-3 (1st Cir. 1994). In

United States v. Hathaway, the Second Circuit held that a

“violent felony” under the Armed Career Criminal Act (the

“ACCA”) includes aiding and abetting arson. 949 F.2d 609,

611 (2d Cir. 1991). In United States v. Groce, the Seventh

Circuit similarly determined that the ACCA’s “violent

felony” provision included aiding and abetting burglary. 999

F.2d 1189, 1192 (7th Cir. 1993).

Finally, in United States v. Baca-Valenzuela, the Eighth

Circuit ruled that aiding and abetting the possession of

narcotics with the intent to distribute constituted a “drug

trafficking crime” warranting an enhancement under the

federal Sentencing Guidelines for an offender convicted of

the criminal offense of reentry following deportation. 118

F.3d 1223, 1231-33 (8th Cir. 1997). Because none of these

cases involves solely the INA or even mentions “theft

offenses,” there is ne conflict among the circuit courts on the

issue decided by the court of appeals in this case.

These cases involving the ACCA, the BRA and the

Sentencing Guidelines create no conflict with the decision

below because these statutes employ different language and

serve different purposes than the INA. For instance, the

ACCA, at issue in Hathaway and Groce, provides for

enhanced penalties for individuals who have three previous

convictions for a “violent felony,” defined as “any crime

punishable by imprisonment for a term exceeding one year. . .

that . . . (ii) is burglary, arson . . . or otherwise involves

conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B). The “or

otherwise” language in this provision indicates that the

examples given — burglary and arson -- should be read broadly

in the context of risk of physical injury.

Similarly, under the BRA, at issue in Mitchell, an

individual convicted of a “crime of violence” must generally

be held in custody pending sentencing. 18 U.S.C.

§ 3143(a)(2). The BRA defines a “crime of violence” as

including “any other offense that . . . involves a substantial

risk that physical-force-against the person or property of

another may be used.” 18 U.S.C. § 3156(a)(4)(B). Although

this statute does not go so far as to include the examples of

arson and burglary, its “any other offense” language, like that

of the ACCA, expands the scope of this provision to any

offense which might involve the use of force against persons

or property. A conviction for aiding and abetting burglary or

arson would naturally provide a risk of injury, or the use of

force against property. Notably, neither the BRA nor the

ACCA require that the offender himself use force or directly

injure — they simply require that his actions create the risk of

injury, or that there be a risk that force “may be used.”

Aiding and abetting arson or burglary thus fit naturally

within the confines of “crimes of violence” or “violent

felonies.” Because the INA’s definition of “theft offense”

contains none of the attributes which create this fit, the three

decisions under these statutes cited by the Attorney General

are not in conflict with the Ninth Circuit’s determination that

a violation of Section 1085](a) of the California Vehicle

Code is not a theft offense under the INA because a “theft

offense” must involve the actual exercise of control over the

property in question.

The Attorney General’s argument that the decision below

conflicts with the Eighth Circuit’s decision in Baca-

Valenzuela is also demonstrably incorrect. In that case, the

Eighth Circuit held that aiding and abetting the possession of

narcotics with the intent to distribute constitutes a “drug

trafficking crime.” 118 F.3d at 1231-33. Baca-Valenzuela,

however, dealt with sentencing under an “aggravated felony”

provision of the federal Sentencing Guidelines. /d. at 1231-

33.

But, as Petitioner notes, the federal Sentencing Guidelines

have been amended specifically to include aiding and abetting

offenses within the definition of “aggravated felonies.” Pet.

(Duenas-Alvarez) at 13 n.7. Relying upon this very

distinction, the Attorney General himself has recently argued

to the Ninth Circuit that Penuliar does not conflict with cases

under the Sentencing Guidelines. Specifically, the Attorney

General has explained that cases under the INA do not

conflict with cases under the sentencing guidelines, due to the

important differences in their statutory language. Thus, in

seeking to avoid rehearing en banc in United States v. Vidal,

426 F.3d 1011, 1015 (9th Cir. 2005), the Attorney General

argued that the decision in this case does not conflict with

Vidal, a sentencing guidelines case, because this case “was

not decided in the criminal context; there is no analogue to

{the relevant guidelines Application Note] in [the INA]” that

expressly provides that an aggravated felony should include

“aiding and abetting.” Opp’n. to Vidal en banc Pet. at 17

n.10, No. 04-50185 (9th Cir. filed Jan. 23, 2006) (emphasis

omitted).

Petitioner cannot have it both ways. He cannot argue to the

Ninth Circuit that there is no conflict between Vidal and this

case because the underlying federal statutes differ in

meaningful respects, and then argue to this Court that, even

though the circuit decisions that he claims are in conflict with

this case involved entirely different federal statutes, those

decisions arose in “analytically — indistinguishable

circumstances.” Pet. (Duenas-Alvarez) at 11. In any event,

the court of appeals’ decision to grant en banc review in

United States v. Vidal also renders premature any review of

this issue in this case.

In Vidal, a panel of the Ninth Circuit held that a violation of

Section 10851(a) of the California Vehicle Code constitutes a

“theft offense” for purposes of increasing a sentence under

the “deral Sentencing Guidelines. 426 F.3d at 1013. The

petit oner in Vidal sought en F anc review, arguing, inter alia,

that the panel’s decision conflicted with the Ninth Circuit's

decision in Penuliar. Reh’g Pet. (Vidal) at 4, No. 04-50185

(9th Cir. filed Dec. 6, 2005). The court of appeals granted en

banc review on June 29, 2006. 453 F.3d 1114, 1115 (9th Cir.

2006). Given that the Ninth Circuit is currently reviewing a

decision that is alleged to conflict with the decision in this

case, it would be premature to grant review here.”

As this Court has explained, certiorari is not appropriate to

resolve an intra-circuit conflict. See Davis v. United States,

417 U.S. 333, 340 (1974). To the contrary, to the extent that

there is any conflict between the Ninth Circuit’s decisions in

this case and in Vidal, such a conflict is best resolved through

en banc review. United States ex rel. Robinson v. Johnston,

316 U.S. 649 (1942); see also Stern, supra § 4.6, at 235.

These principles are especially apt in this case because the

Ninth Circuit has granted en banc review in Vidal. In light of

the ongoing proceedings in the court of appeals, it would be

premature for the Court to grant review in this case.

il. THE PETITION SHOULD BE DENIED BECAUSE

THERE IS NO PRESSING NEED FOR THE

COURT TO RESOLVE THE QUESTION

PRESENTED.

1. There is no pressing need to resolve the issue presented

because, as the Attorney General acknowledges, there

currently is legislation pending in Congress which may

address this issue in future cases. Pet. (Duenas-Alvarez) at

21-22. Both houses of Congress have now passed legislation

* Petitioner may argue that because Vidal is a sentencing guidelines

case, and the Vidal panel’s majority opinion drew a distinction on this

ground, the grant of en banc review in Vidal does not render review

premature in this case. Again, Petitioner cannot have it both ways. Either

sentencing-related cases can conflict with INA cases, or they cannot. If

they can, then review in this case is unnecessary due to the ongoing

proceedings in Vidal. \f they cannot, then there is no inter-circuit conflict

and certiorari-is likewise unnecessary.

defining all classes of aggravated felony to include traditional

aiding and abetting offenses. Border Protection,

Antiterrorism, and Illegal Immigration Control Act of 2005,

H.R. 4437, 109th Cong., § 201(a)(3) (passed Dec. 16, 2005);

Comprehensive Immigration Reform Act of 2006, S. 2611,

109th Cong., § 203(a)(5) (passed May 25, 2006).* It is

unclear whether the final text of the provisions would purport

to apply retroactively. /d. However, should Congress finalize

this legislation it may resolve this legal issue for future cases.

Given Congress’ active consideration of the question

presented, there is no need for this Court’s intervention to

resolve a question that both houses of Congress have

addressed through pending legislation.

2. In any event, Petitioner’s speculation about the possible

effects of the decision below do not provide a reason for

granting review. Specifically, Petitioner argues that it will be

more difficult to prove that an individual committed an

“aggravated felony” under the modified categorical approach

than under the categorical approach, and that the court of

appeals may apply its decision to different factual and legal

circumstances. Pet. (Duenas-Alvarez) at 15-22. These

arguments should be rejected.

First, the alleged ill effects described by Petitioner boil

down to the simple requirement that he meet his burden of

proof, as established by this Court, just as he would be

required to do in any case under TJaylor’s modified

categorical approach. Petitioner does not contend that this

Court should reconsider the two-part framework set forth in —

Taylor, but instead complains that the application of that

framework makes it difficult to establish that an individual

* Although these two bills agree as to the aiding and abetting

provisions, their other differing provisions have not yet been reconciled in

conference committee, and it is still unclear when and if these bills will

become law.

has committed an aggravated felony under the INA using the

modified categorical approach.”

Petitioner thus-maintains that there are large numbers of

immigrants whom he may not remove due to the decision

below. Pet. (Duenas-Alvarez) at 15-16. This overstates the

impact of the court of appeals’ decision. To be sure, the court

of appeals ruled that Section 10851(a) is not categorically a

“theft offense” under the INA. That ruling, however, does

not prevent Petitioner from showing in any other case that an

individual’s violation of that statute constitutes a theft offense

under the modified categorical approach set forth by this

Court in Zaylor. Petitioner has presented no valid reason why

meeting his burden of proof in cases subject-to the modified

categorical approach under Penuliar would be more

burdensome than a typical modified categorical case.°

Additionally, Petitioner dramatically overstates the scope of

the decision in this case. Petitioner suggests that the Penuliar

holding “has-few obvious limits” and that the Ninth Circuit’s

> Petitioner also argues that this case requires review because he cannot

necessarily remove immigrants whose offenses fal] outside the INA’s

aggravated felony provisions under the INA’s provision for removal of

those who commit crimes involving moral turpitude. Pet. (Duenas-

Alvarez) at 18-20. This discussion is irrelevant, because each of these

provisions is designed to target specific, enumerated offenses: they are not

meant to combine to include every existing offense. The fact that an

offense does not fall under one provision does not automatically mean that

it should be covered by the other.

° For example, Petitioner contends that he will have difficulty meeting

his burden of proof because the language of indictments and plea

colloquies often simply track the language of the statute in question. Pet.

(Duenas-Alvarez) at 18. Again, however, there is nothing to distinguish

theft offenses from any other case under the modified categorical

approach approved by this Court: in each such case, the modified

categorical approach is applied precisely because the statutory language is

broader than the definition of “aggravated felony.” Petitioner does not

and cannot suggest that indictments and colloquies in non-theft offense

cases are less likely to track the language of the statute at issue.

ruling “may well be extended . . . to every crime that is a

basis for removal.” Pet. (Duenas-Alvarez) at 20. But that is

pure speculation. The holding in this case was that a violation

of Section 10851(a) of the California Vehicle Code does not,

as a categorical matter, constitute a “theft offense” for

purposes of the INA. The court of appeals has not extended

that holding to other contexts, there are logical reasons why

the court of appeals might choose not to do so, and, indeed,

the court of appeals has already demonstrated its ability and

willingness to draw distinctions where appropriate.

As an example, Petitioner speculates that the court of

appeals might extend its holding in this case and determine

that a “crime of violence,” an aggravated felony under the

INA, does not include aiding and abetting offenses. Pet.

(Duenas-Alvarez) at 20-21. The INA defines “crime of

violence” by reference to the federal criminal law,

specifically 18 U.S.C. § 16. This statute’s language tracks the

violent crime provisions discussed above, supra Section A,

and includes “any other offense that . . . involves a substantial

risk that physical force against the person or property of

another may be used.” 18 U.S.C. § 16. When given the

opportunity to consider this distinct statutory language, the

court of appeals may well conclude, as have other circuits,

that aiding and abetting offenses fall within its broad sweep.

See United States v. Morrison, 972 F.2d 269, 271 (9th Cir.

1992) (holding aiding and abetting malicious destruction a

“violent felony” under the sentencing guidelines).

In short, Petitioner’s speculation that the court of appeals

may, in future cases, dramatically expand its holding in this

case simply underscores the prematurity of certiorari.

lil. THIS CASE IS AN INAPPROPRIATE VEHICLE

TO RESOLVE THE QUESTION PRESENTED.

1. The question presented by Petitioner is whether a “theft

offense,” as defined by the INA, includes aiding and abetting.

However, this case, which involves California’s Unlawful

Taking of a Vehicle statute, is an inappropriate vehicle for the

Court’s consideration of this issue because this particular

statute criminalizes not only aiding and abetting the

underlying crime, but also acting as an accessory after the

fact. Pet. App. 14a (explaining that Section 10851(a)

“includes accessory or accomplice liability”).

As shown below, California’s general aiding and abetting

offenses are not properly categorized as “theft offenses”

under the INA. However, even if they were, Section

10851(a) of the California Vehicle Code would still not

constitute, as a categorical matter, a “theft offense” because

this statute also applies to “accessories” — defined by

California law as traditional accessories after the fact.

Because the California Unlawful Taking of a Vehicle

statute includes accessories after the fact, it criminalizes

conduct even broader than traditional aiding and abetting

liability. As such, a violation of Section 10851(a) of the

California Vehicle Code would not be a categorical

aggravated felony even if traditional aiding and abetting

offenses are “theft offenses” as Petitioner contends.

Accordingly, this case is an improper vehicle for resolving the

question presented. Stern, supra § 4.4, at 231 (explaining that

review may be denied where this Court “might be able to

decide the case on another ground and thus not reach the

point‘on which there is conflict”) (collecting cases).

2. In his Petition, the Attorney General does not contend

that the Court should actually grant plenary review in this

case. Indeed, the Petition acknowledges that this case is a

less-than-ideal candidate for deciding the question presented

because the Petitioner contends that Mr. Penuliar failed to

exhaust his claims before the BIA, and that this failure

deprived the court of appeals of jurisdiction. Pet. 8-9. Mr.

Penuliar disputes that he failed to exhaust his claims.’

Nevertheless, Petitioner is correct that the existence of a

threshold jurisdictional question that may prevent this Court

from reaching the merits renders this case an inappropriate

candidate for review of the question presented.

3. Nor should this Court hold this case pending resolution

of Duenas-Alvarez. As explained above, there is no conflict

among the courts of appeals and it would be inappropriate to

grant review to address what is, at most, an intra-circuit

conflict that the court of appeals has agreed to review en

banc, and regarding which there is pending legislation that

has been passed by both houses of Congress. Additionally,

Duenas-Alvarez, like this case, involves California’s

Unlawful Taking of a Vehicle statute, which broadly extends -

criminal liability not only to aiding and abetting but also to

accessories after the fact. Pet. App. 14a.

Further, review would be inappropriate in Duenas-Alvarez

because that case is interlocutory. This Court “generally

await|s] final judgment in the lower courts before exercising

[its] certiorari jurisdiction.” Virginia Military Inst. v. United

States, 508 U.S. 946, 946 (1993) (opinion of Scalia, J.,

respecting denial of petition for writ of certiorari); Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916); see also, e.g., Brotherhood of Locomotive Firemen v.

Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per

curiam) (“[B]Jecause the Court of Appeals remanded the case,

it is not yet ripe for review by this Court”); Stern, supra

§ 4.18, at 260 (“[I]n the absence of some . . . unusual factor,

the interlocutory nature of a lower court judgment will

generally result in a denial of certiorari.”).

Here, the court of appeals has not finally addressed whether

Mr. Duenas-Al]varez was convicted of a theft offense under

” Specifically, Mr. Penuliar believes that the record demonstrates +that

he fully exhausted his administrative remedies before the BIA. E.g., Pet.

App. 57a, 63a.

the INA. The immigration judge (and BIA) held that the

Unlawful Taking of a Vehicle was categorically a theft

offense, and so did not reach a review under the modified

categorical approach. Pet. (Duenas-Alvarez) App. 1a-2a.

Because the court of appeals concluded that the Unlawful

Taking of a Vehicle under California law is not categorically

a theft offense, it remanded the case for further proceedings to

conduct the modified categorical review set forth in

controlling precedent. /d. This remand renders the court of

appeals’ decision interlocutory.

Nor is there any reason to depart from the general rule

barring review of interlocutory orders. Instead, for the

myriad of reasons discussed above, Duenas-Alvarez is

inappropriate for immediate review by this Court.

Accordingly, this case should not be held for Duenas-Alvarez.

IV. THE PETITION SHOULD BE DENIED BECAUSE

THE DECISION BELOW DOES NOT CONFLICT

WITH ANY DECISION OF THIS COURT AND JIS

CORRECT ON THE MERITS.

Petitioner does not contend that the decision below

conflicts with any decision of this Court. To the contrary, the

decision below faithfully applies this Court’s controlling

precedent to the specific question of whether Section

10851(a) of the California Vehicle Code categorically

qualifies as a “theft offense.”

A. Section 10851(a) Of The California Vehicle Code

Encompasses Both California Accomplice

Liability And Traditional Accessory After The

Fact Liability.

California criminal law normally distinguishes between an

offense committed by a principal and an offense committed

by an accessory. For example, California excludes from the

definition of principals those who engage in conduct that

commenced after the conclusion of the crime. See, e.g., Cal.

Penal Code § 31; People v. Verlinde, 100 Cal. App. 4th 1146,

1158 (2002).

“Accessory,” in contrast, is a defined term whose meaning

corresponds to the traditional offense of accessory after the

fact. Cal. Penal Code § 32. California’s accessory statute -

provides that “[e]very person who, afier a felony has been

committed, harbors, conceals or aids a principal in such

felony . . . is an accessory to such felony.” /d. (emphasis

added). The offense of being an accessory under the

California statute (an “Accessory”) is distinct from aiding and

abetting; an Accessory is not liable as a principal. See id.;

Cal. Penal Code § 31.

Under. California law, a person violates Section 10851(a) of

the Vehicle Code if he “is a party or an accessory to or an

accomplice in the driving or unauthorized taking or stealing”

[of a vehicle not his or her own.]” Cal. Veh. Code § 10851(a)

(emphasis added). The statute thus allows an individual to be

convicted for the offense whether the person acted as a

principal, aider or abettor, or accessory after the fact. See,

e.g., United States v. Innie, 7 F.3d 840, 852 (9th Cir. 1993).

To be convicted under this statute, a person therefore need

only have knowingly accepted a ride in a previously illegally

acquired car. People v. Clark, 251 Cal. App. 2d 868, 874

(1967). The statute is thus broader than California’s generic

aiding and abetting law.

B. A Majority Of tates Recognize That Accessories

After The Fact Are Guilty Of A Separate

Offense.

Under the 7ay/or categorical approach, a reviewing court

compares the scope of the statute at issue to the requirements

of the “generic” definition of the category of offense in the

INA. The generic definition is determined by reference to

state law, and should “correspond{] to the definition[] of [the

category of offense] in a majority of the States’ criminal

codes.” 495 U.S. at 589. Thus, a review of the laws of the

various states is required to determine the modern consensus,

and thus the proper “generic” definition against which

California Vehicle Code Section 10851(a) should be

compared. There is no dispute that the court below applied

the analytical approach set forth in 7Zaylor. And, as shown

below, the court properly concluded that Section 10851 is

well outside the generic, consensus definition found in the

laws of the fifty states. Pet. App. 12a-15a.

A majority of jurisdictions recognize that acting as a

principal rather than as an accessory after the fact constitutes

a separate offense. States address the issue of accessories

after the fact in two primary ways.

First, twenty-one jurisdictions have promulgated separate

criminal offenses for events related to the commission of the

crime, on the one hand, and accessories after the fact, who

provide assistance to the principal after the commission of the

crime, on the other hand.* These provisions stand in contrast

to Section 10851(a) of the California Vehicle Code because

the California statute includes as principal offenders both

principals and accessories after the fact.

Second, twenty-nine states have abandoned the “accessory

after the fact” terminology and instead classify this type of

offense as one of “hindering” or “obstruction of justice.” 2

W. LaFave, Substantive Criminal Law, § 13.6 (2d ed. 2002);

see also Model Penal Code § 242.1 Explanatory Note for

®* To illustrate, Florida statutes provide that “[a]ny person . . . who

maintains or assists the principal or an accessory before the fact, or gives

the offender any other aid . . . is an accessory after the fact.” Fla. Stat.

§ 777.03(1 (a); see also 18 U.S.C. § 3; Cal. Penal Code § 32; Colo. Rev.

Stat. § 18-8-105; D.C. Code § 22-1806; Fla. Stat. § 777.03; Idaho Code

Ann. § 18-205; lowa Code § 703.3; La. Rev. Stat. Ann. § 14:25; Md.

Code Ann., Crim. Law § 1-301; Mass. Gen. Laws Ann. ch. 274, § 4; Miss.

Code Ann. § 97-1-5; Neb. Rev. Stat. § 28-204: Nev. Rev. Stat. § 195.030;

N.C. Gen. Stat. Ann. § 14-7; Okla. Stat. tit. 21, § 173; S.D. Codified Laws

§ 22-3-5; Tenn. Code Ann. § 39-11-411; Vt. Stat. Ann. tit. 13, § 5; Va:

Code Ann. § 18.2-19; W. Va. Code § 61-11-6; Wyo. Stat. Ann. § 6-5-202.

Sections 242.1-242.8 (2001).’ The characterization used by

these states reflects the true nature of the crime: conduct that

interferes with the processes of government. /d. Section

10851(a) of the California Vehicle Code also differs from the

law in these states because it treats as principal offenders

those who would instead fall under the gambit of obstruction

of justice or hindering."

Because under each approach the modern consensus among

the states is to recognize the difference between principals

and accessories after the fact, Section 10851(a) of the

California Vehicle Code is broader than the modern

consensus because it makes all classes of offenders guilty of

the same offense.

* Ala. Code §§ 13A-10-42 to -10-45; Alaska Stat. § 11.56.770; Ariz.

Rev. Stat. Ann. §§ 13-2510 to -2512; Ark. Code Ann. § 5-54-105; Conn.

Gen. Stat. §§ 53a-165 to -167; Del. Code. Ann. tit. 11, § 1244; Ga. Code

Ann. § 16-10-50; Haw. Rev. Stat. §§ 710-1028 to -1030; 720 Jil. Comp.

Stat. Ann. 5/31-4, 5/31-5; Ind. Code § 35-44-3-2; Kan. Stat. Ann. § 21-

3812; Ky. Rev. Stat. Ann. §§ 520.120, 520.130; Me. Rev. Stat. Ann. tit.

17-A § 753; Minn. Stat. § 609.495; Mo. Rev. Stat. § 575.030; Mont. Code

Ann. § 45-7-303; N.H. Rev. Stat. Ann. § 642:3; N.J. Stat. Ann. § 2C:29-3;

N.M. Stat. § 30-22-4; N.Y. Penal Law $§ 205.50 to .65; N.D. Cent. Code

§ 12.1-08-03; Ohio Rev. Code Ann. § 2921.32; Or. Rev. Stat. § 162.325;

18 Pa. Cons. Stat. § 5105; R.I. Gen. Laws § 11-1-4; Tex. Penal Code

Ann. § 38.05; Utah Code Ann. § 76-8-306; Wash. Rev. Code

§ 9A.76.050; Wis. Stat. § 946.47.

'° Additionally, two states, Michigan and South Carolina, stil! follow

the common law, which divides guilty parties into principals and various

accessories. See Mich. Comp. Laws § 750.505; People v. Cunningham,

506 N.W.2d 624, 625 (Mich. Ct. App. 1993); S.C. Code Ann. § 17-21-60;

State v. Legette, 330 S.E.2d 293, 294 (S.C. 1985); see also generally

Rollins Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581, 581 (1941);

Susannah Rawl Cole, Sewing up the Loophole in Accessory After the Fact

Crimes, 50 S.C. L. Rev. 901, 902-03 (1999). The common law also

recognizes that accessories after the fact are tainted with a “‘different

species of guilt.” Perkins, supra, at 589 (quoting 4 Blackstone's.

Commentaries *40).

C. Section 10851(a) Of The California Vehicle Code

Is Also Outside The Mainstream In Its Inclusion

Of California Aiding And Abetting Law.

None of the fifty states’ theft offense statutes expressly

includes aiders and abettors or accessories after the fact.''

However, some states, like California, consider vehicle theft a

separate offense from general theft. Of the thirty states with

specific vehicle theft statutes or unauthorized use of a vehicle

statutes, twenty-six have statutes which do not include aiders

and abettors or accessories after the fact.'? Section 10851(a)

'' Ala. Code § 13A-8-2; Alaska Stat. § 11.46.100; Ariz. Rev. Stat. Ann.

§ 13-1802; Ark. Code Ann. § 5-36-103; Cal. Penal Code § 484; Colo.

Rev. Stat. § 18-4-401; Conn. Gen. Stat. Ann. § 53a-119; Del. Code Ann.

tit. 11, § 841; Fla. Stat. § 812.014; Ga. Code Ann. § 16-8-2; Haw. Rev.

Stat. § 708-8350; Idaho Code Ann. § 18-2403; 720 Ill. Comp. Stat. Ann.

5/16-1; Ind. Code § 35-43-4-2; lowa Code § 714.1; Kan. Stat. Ann. § 21-

3701; Ky. Rev. Stat. Ann. § 514.030; La. Rev. Stat. Ann. § 14:67; Me.

Rev. Stat. Ann. tit. 17-A, § 353; Md. Code Ann., Crim. Law § 7-104;

Mass. Gen. Laws Ann. ch. 266, § 30; Mich. Comp. Laws § 750.356;

Minn. Stat. § 609.52; Miss. Code Ann. § 97-17-41; Mo. Rev. Stat.

§ 570.030; Mont. Code Ann. § 45-6-301; Neb. Rev. Stat. § 28-511; Nev.

Rev. Stat. $ 205.0832; N.H. Rev. Stat. Ann. § 637:3; N.J. Stat. Ann.

§ 2C:20-3; N.M. Stat. § 30-16-1; N.Y. Penal Law § 155.05; N.C. Gen.

Stat. § 14-72; N.D. Cent. Code § 12.1-23-02; Ohio Rev. Code Ann.

§ 2913.02; Okla. Stat. tit. 21, § 1701; Or. Rev. Stat. § 164.015; 18 Pa.

Cons. Stat. § 3921; R.I. Gen. Laws § 11-41-1; S.C. Code Ann. § 16-13-30;

S.D. Codified Laws § 22-30A-1; Tenn. Code Ann. § 39-14-103; Tex.

Penal Code Ann. § 31.03; Utah Code Ann. § 76-6-404; Vt. Stat. Ann. tit.

13, § 2501; Va. Code Ann. § 18.2-95; Wash. Rev. Code § 9A.56.020; W.

Va. Code § 61-3-13; Wis. Stat. § 943.20; Wyo. Stat. Ann. § 6-3-402; see

also D.C. Code § 22-3211.

'? Alaska Stat. § 11.46.360; Ariz. Rev. Stat. Ann. § 13-1814; Ark. Code

Ann. § 5-36-108; Colo. Rev. Stat. § 18-4-409; Conn. Gen. Stat. § S3a-

119b; Del. Code. Ann. tit. 1], § 853; Ind. Code § 35-43-4-2.5; lowa Code

§ 714.7: Ky. Rev. Stat. Ann. § 514.100; La. Rev. Stat. Ann. § 14:68.4;

Md. Code Ann., Crim. Law § 7-105; Mass. Gen. Laws Ann. ch, 266, § 28:

Me. Rev. Stat. Ann. tit. 17-A, § 360; Mont. Code Ann. § 45-6-308; Nev.

Rev. Stat. § 205.2715; NJ. Stat. Ann. § 2C:20-2.1; N.Y. Penal Law

§ 165.08; N.C. Gen. Stat. § 14-72.2; N.D. Cent. Code § 12.1-23-06; Ohio

of the California Vehicle Code is thus more broad than the

scope of theft and vehicle theft statutes within the

mainstream.

Petitioner suggests that regardless of the scope of state theft

and vehicle theft statutes, there is a modern consensus that

traditional aiders and abettors (i.e., accessories before the

fact) may be convicted as principals. Pet. (Duenas-Alvarez)

at 7-8. This argument misses the mark, however, because

Congress has chosen not to apply this treatment to

“aggravated felonies” under the INA. The INA contains an

express provision including attempt and conspiracy to commit

an aggravated felony as “aggravated felonies” themselves. 8

U.S.C. § 1101(a)(43)(U). The INA contains no such

provision, however, regarding aiding and abetting. /d. This

stands in stark contrast to the federal Sentencing Guidelines,

which expressly include as “aggravated felonies” not only

attempt and conspiracy, but aiding and abetting as well.

U.S.S.G. §§ 2L1.2 n.5, 4B1.2 n.1. If Petitioner were correct

that due to the modern treatment of accessories before the

fact, aiding and abetting is necessarily included in the generic

definitions of the offenses which constitute “aggravated

felonies,” then these provisions in the federal Sentencing

Guidelines would be entirely superfluous.

Moreover, even if it were appropriate to look to the various

states’ definitions of “aiding and abetting” rather than their

“theft” offenses, California’s general aiding and abetting law

is broader than that of the majority of states because it lacks

an offense-specific intent requirement. Under California law,

“a defendant may be held criminally responsible as an

accomplice not only for the crime he or she intended to aid

and abet (the target crime), but also for any other crime that is

the ‘natural and probable consequence’ of the target crime.”

Rev. Code Ann. § 2913.03; Okla. Stat. tit. 21, § 1720: 18 Pa. Cons. Stat.

Ann. § 3928; S.C. Code Ann. § 16-21-60; S.D. Codified Laws § 22-30A-

12; Tenn. Code Ann. § 39-14-106; Tex. Penal Code Ann. § 31.07; Wash.

Rev. Code § 9A.56.070; see also D.C. Code § 22-3215.

People v. Prettyman, 926 P.2d 1013, 1020 (Cal. 1996); see

also Juan‘H. vy. Allen, 408 F.3d 1262, 1279 n.15 (9th Cir.

2005); Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir.

1998). Thus, under California law, individuals convicted on

an aiding and abetting theory “need not have intended to

encourage or facilitate the particular offense” of which they

are convicted. People v. Croy, 710 P.2d 392, 398 n.5 (Cal.

1985). This flies in the face of generic aiding and abetting

law. See, e.g., Nye & Nissen v. United States, 336 U.S. 613,

619 (1949). Indeed, the majority of states and the federal

government have adopted the view that to be convicted under

an aiding and abetting theory, an accused must intend to aid

the principal in the particular offense.'”

Both through the statute’s express inclusion of traditional

accessories after the fact and aiders and abettors as principals,

and through the operation of California’s atypically broad

general aiding and abetting provisions, Section 10851(a) of

the California Vehicle Code therefore encompasses conduct

that falls outside the modern generic definition of theft

offense. The court of appeals thus correctly concluded that

the statute is not an “aggravated felony” under the INA.

' At least the following jurisdictions have adopted this view: 18

U.S.C. § 2; Ala. Code § 13A-2-23; Alaska Stat. § 11.16.110; Ariz. Rev.

Stat. Ann. § 13-301; Ark. Code Ann. § 5-2-403; Colo. Rev. Stat. §§ 18-1-

603, 18-8-105; Del. Code Ann. tit. 11, § 271; 7.B. v. State, 732 So. 2d

1163, 1164 (Fla. 1999); Ga. Code Ann. § 16-2-20; Haw. Rev. Stat. § 702-

222; State v. Gonzalez, 12 P.3d 382, 384-85 (Idaho Ct. App. 2000); 720

Il. Comp. Stat. Ann. 5/5-2; Kan. Stat. Ann. § 21-3205; Ky. Rev. Stat.

Ann. § 502.020; Mo. Rev. Stat. § 562.041; N.H. Rev. Stat. Ann. § 626:8;

N.J. Stat. Ann. § 2C:2-6; State v. Carrasco, 946 P.2d 1075, 1079 (N.M.

1997); N.D. Cent. Code § 12.1-03-01; Or. Rev. Stat. § 161.155; 18 Pa.

Cons. Stat. § 306; State v. Gazerro, 420 A.2d 816, 828 (R.1. 1980); S.D.

Codified Laws § 22-3-3; Utah Code Ann. § 76-2-202; State v. Pitts, 800

A.2d 481, 482-83 (Vt. 2002); Wis. Stat. § 939.05; Jahnke v. State, 692

P.2d 911, 921 (Wyo. 1984); see also generally Candace Courteau,

Comment, The Mental Element Required for Accomplice Liability: A

Topic Note, 59 La. L. Rev. 325, 333 (1998); W. LaFave, supra, § 13.2(c).

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

CARTER G. PHILLIPS JOEL S. FELDMAN

PAUL J. ZIDLICKY MELANIE JO TRIEBEL*

SIDLEY AUSTIN LLP SIDLEY AUSTIN LLP

1501 K Street, N.W. One South Dearborn

Washington, D.C. 20005 Chicago, Illinois 60603

(202) 736-8000 (312) 853-7000

Counsel for Respondent

August 23, 2006 * Counsel of Record

EP 6 - 2005

CACIE CF TEC ETK

No. 05-1630

In the Supreme Court of the Anited States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

NOPRING PAULINO PENULIAR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

A CCE AE LE CE OT CET A EN A ee A A

ALOE NOONE NOR SRE HOP EEE AEE ENS EY OO BO CTIA TE ha ONE ON BOER

SE gig es eS a SG el a sO pe eal ares a i aS eK Ne ane pierre eres

TABLE OF CONTENTS ~

Page

A. The Ninth Circuit’s rule is incorrect ............. 1

B. The Ninth Circuit’s rule conflicts with the rule

applied by other courts of appeals .............. 4

C. If left unreviewed, the Ninth Circuit’s rule will

have a substantial effect on the administration

of the immigration laws ..............cceeeeeees 6

D. Duenas-Alvarez is a suitable vehicle for

deciding whether the Ninth Circuit’s rule is

ee hie eye ered eceseecene 8

TABLE OF AUTHORITIES

Cases’

Anselmo, In re, 20 1. & N. Dec. 25 (B.1.A. 1989) ....... 10

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ......... 10

James v. Gonzales, No. 04-60445, 2006 WL 2536614

ES a 4.5

Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir.

Nee ac abuwcececcece 7

Mazurek v. Armstrong, 520 U.S. 968 (1997) ........... 10

Sullivan v. Finkelstein, 496 U.S. 617 (1990) ............ 9

United States v. Baca-Valenzuela, 118 F.3d 1223 (8th

ss Che ccce ees cece 5

United States v. Barnett, 667 F.2d 835 (9th Cir. 1982) ...3

United States v. Corona-Sanchez, 291 F.3d 1201 (9th

EE q

United States v. Edwards, 303 F.3d 606 (5th Cir.

2002), cert. denied, 537 U.S. 1192 and 1240 (2003) ....3

(I)

Cases—Continued: Page

United States v. Graewe, 774 F.2d 106 (6th Cir. 1985),

cert. denied, 475 U.S. 1017 (1986) ...............4.. 3

United States v. Groce, 999 F.2d 1189 (7th Cir. 1993) .... 4

United States v. Hathaway, 949 F.2d 609 (2d Cir.

1991), cert. denied, 502 U.S. 1119 (1992) ............. 4

United States v. Miller, 22 F.3d 1075 (11th Cir. 1994) ...3

United States v. Mitchell, 23 F.3d 1 (ist Cir. 1994) ...... 5

United States v. Moore, 936 F.2d 1508 (7th Cir.), cert.

Gented OSE UE. Sie GaGa as oe hoe ei ees ahh ees

United States v. Vidal, 426 F.3d 1011 (9th Cir. 2005),

reh’g granted, 453 F.3d 1114 (9th Cir. 2006) ......... 5

United States v. Walker, 99 F.3d 439 (D.C. Cir. 1996) .... 3

Statutes and regulation:

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

SUSC. 1MOMINA) «5 oi esses 8

SUB. LAGI ie wcivencvssecswiaces 1, 5,8

BUTLG. BIR ov vvecdsdaccvechcstanes 4

ERG bckae hius-cnke Oskaandesebdceestacuawerieas 3

Cal. Veh. Code (West 2000):

DI is oa a Shade sh ane eos eee 3

SION ove ch ake ban vandeweseveeeseseesiase 4, 6,8

Cal. Penal Code (West 1999):

ON sodden Oe ee 7

OO oe aa ohh enna cada eaen ane 7

Miscellaneous: Page

2 Wayne R. LaFave, Substantive Criminal Law(2d

NE SG05 4 56 a hbec cree kan Ons Wane ho wekisaleces 3

erty

i sewet ved

arts

dials

Pas ass

In the Supreme Court of the Gnited States

No. 05-1630

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

Vv.

NOPRING PAULINO PENULIAR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Respondent does not deny that, if the Court grants certio-

rari in Gonzales v. Duenas-Alvarez, petition for cert. pending,

No. 05-1629 (filed June 22, 2006), the petition in this case

should be held pending the disposition of that case and then

disposed of accordingly. Instead, respondent contends (Br. in

Opp. 1-3, 8-26) that the petition in Duenas-Alvarez should be

denied—and thus that the petition in this case should be de-

nied as well. Respondent is mistaken.

A. The Ninth Circuit’s Rule Is Incorrect

1. As the Duenas-Alvarez petition demonstrates (at 6-

10), the Ninth Circuit erred in holding that aiding and abet-

ting is not included in the generic definition of the term “theft —

offense” under the “aggravated felony” provision of the Immi-

gration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(G).

Respondent contends that that holding is correct, because

(1)

“(njone of the fifty states’ theft offense statutes expressly

includes aiders and abettors or accessories after the fact.”

Br. in Opp. 24. That is irrelevant even if true, because every

State criminalizes aiding and abetting and treats an aider and

abettor as a principal, and thus the law in every State is that

a defendant who aids and abets a theft offense is guilty of the

theft offense itself. See Duenas-Alvarez Pet. 6-10.

Respondent also relies (Br. in Opp. 25) on the fact that the

INA “contains an express provision including attempt and

conspiracy to commit an aggravated felony as ‘aggravated

felonies’ themselves” but “contains no such provision * * *

regarding aiding and abetting.” Br. in Opp. 25. That reason-

ing is equally flawed. As explained in the Duenas-Alvarez

petition (at 22 n.13), attempt and conspiracy, unlike aiding

and abetting, are distinct from the underlying offense, and

thus would not constitute an aggravated felony unless Con-

gress explicitly so provided. Respondent correctly points out

(Br. in Opp. 25) that the Sentencing Guidelines do include

aiding and abetting (as well as attempt and conspiracy) in

their definition of “aggravated felony.” See Sentencing

Guidelines § 2L1.2, comment. (n.5). But it is hardly unusual

for a legislature (or agency) explicitly to include in a statute

(or regulation) a principle of law that would apply even if

it were omitted, so as to remove any conceivable doubt. And

even if it were unusual, the Sentencing Commission’s inclusion

of particular language in the Guidelines would not be

evidence of what Congress intended when it enacted

the INA—especially since aiding-and-abetting liability is au-

tomatically included as a form of principal liability under

federal statute and the laws of all 50 States, whether or not it

is expressly mentioned.

2. Respondent contends (Br. in Opp. 25-26) that, even if

aiding and abetting is included in the generic definition of

“theft offense,” aiding and abetting under California law is

broader than generic aiding and abetting. That theory, how-

ever, was not the basis for respondent’s argument or the

Ninth Circuit’s decision below. In any event, it is incorrect.

According to respondent, while California holds a defendant

responsible for any crime that is the “natural and probable

consequence” of the crime he intended to aid and abet, “the

majority of states and the federal government” do not. Jd. at

25-26. As Professor LaFave explains, however, the “estab-

lished rule” is in fact the one applied in California—that “ac-

complice liability extends to acts of the principal * * * which

were a ‘natural and probable consequence’ of the criminal

scheme the accomplice encouraged or aided.” 2 Wayne R.

LaFave, Substantive Criminal Law § 13.3(b), at 361 (2d ed.

2003) (footnote omitted); see id. § 13.3(b), at 361-362 nn. 26-29

(citing treatises, state cases, and state statutes).'

Respondent also contends (Br. in Opp. 20-23) that, even if

aiding and abetting is included in the generic definition of

“theft offense,” and even if aiding and abetting under Califor-

nia law is no broader than generic aiding and abetting, Cali-

fornia Vehicle Code § 10851 (West 2000) imposes liability on

an “accessory,” which means an accessory after the fact, and

an accessory after the fact is not covered by the generic defi-

nition of “theft offense” as that term is used in the INA. As

explained in the Duenas-Alvarez reply brief (at 2-8), that the-

ory, too, was not the basis for the decision below; the theory

' The federal courts of appeals have uniformly interpreted the federal

aiding-and-abetting statute, 18 U.S.C. 2, to permit conviction on that theory.

See, ¢.g., United States v. Edwards, 303 F.3d 606, 637 (Sth Cir. 2002), cert.

denied, 537 U.S. 1192 and 1240 (2008); United States v. Walker, 99 F.3d 439, 443

(D.C. Cir. 1996); United States v. Miller, 22 F.3d 1075, 1078-1079 (11th Cir.

1994); United States v. Moore, 936 F.2d 1508, 1527 (7th Cir.), cert. denied, 502

U.S. 991 (1991); United States v. Graewe, 774 F.2d 106, 108 n.1 (6th Cir. 1985),

cert. denied, 475 U.S. 1017 (1986); United States v. Barnett, 667 F.2d 835, 841

(9th Cir. 1982).

is not correct; even if the theory were correct, it would not

follow that an alien (like respondent) who was charged with

violating Section 10851(a) as a principal has not been con-

victed of a “theft offense” under the “modified categorical”

approach; and the Ninth Circuit has applied the rule chal-

lenged by the government to California theft statutes that do

not include the term “accessory.”

B. The Ninth Circuit’s Rule Conflicts With The Rule Ap-

plied By Other Courts Of Appeals

As the Duenas-Alvarez petition demonstrates (at 10-15),

the Ninth Circuit’s rule that the generic definition of “theft

offense” excludes aiding and abetting is inconsistent with the

principle applied by the First, Second, Seventh, and Eighth

Circuits in analytically indistinguishable circumstances.” Re-

spondent contends that there is no such conflict, because the

statutes at issue in those cases “employ different language

and serve different purposes than the INA.” Br. in Opp. 11.

That contention is mistaken, because the decisions from the

other circuits do not rely on particular language or purposes

of the statutes at issue; they rely on the basic principle of the

criminal law, which the Ninth Circuit ignored, that aiding and

abetting and the underlying substantive crime are not distinct

offenses.* Respondent also contends that the decision below

2 Since the petition was filed, the Fifth Circuit has held that aiding and

abetting bank fraud is an aggravated felony under 8 U.S.C. 1101(a)(43)(M)«i),

which covers offenses that “involve[] fraud or deceit in which the loss to the

victim or victims exceeds $10,000.” James v. Gonzales, No. 04-60445, 2006 WL

2536614, at *2-*3 (Sept. 5, 2006).

* See United States v. Hathaway, 949 F.2d 609, 610-611 (2d Cir. 1991) (per

curiam) (“the laws of many states today include counseling, aiding or procuring

the burning within the definition of actual arson,” and “{ajiding and abetting

also supports a substantive conviction for arson under Federal law”), cert.

denied, 502 U.S. 1119 (1992); United States v. Groce, 999 F.2d 1189, 1191 (7th

Cir. 1993) (“both federal law and Wisconsin state law punish an aider and

is not inconsistent with the Eighth Circuit’s decision in

United States v. Baca-Valenzuela, 118 F.3d 1223 (1997), be-

cause that case “dealt with sentencing under an ‘aggravated

felony’ provision of the federal Sentencing Guidelines,” which

“have been amended specifically to include aiding and abet-

ting offenses within the definition of ‘aggravated felonies.’”

Br. in Opp. 12-13. That contention is likewise mistaken, be-

cause, at the time Baca-Valenzuela was decided, the defini-

tion of “aggravated felony” in the Guidelines was the same as

that in the INA, see 118 F.3d at 1232; the fact that the Guide-

lines have since been amended does not mean that Baca-

Valenzuela is no longer controlling in the Eighth Circuit on

whether aiding and abetting an aggravated felony is itself an

aggravated felony under the INA.

In the alternative, respondent contends (Br. in Opp. 13-14)

that it would be premature for this Court to decide whether

the generic definition of “theft offense” in 8 U.S.C.

1101(a)(43)(G) includes aiding and abetting, because the Ninth

Circuit recently granted rehearing en banc in United States

v. Vidal, 426 F.3d 1011 (2005), rehearing granted, 453 F.3d

1114 (2006). As explained in the Duenas-Alvarez reply brief

(at 8-10), that contention is mistaken, because Vidal does not

involve the question presented in this case.‘ Contrary to re-

abettor as a principal”); United States v. Mitchell, 23 F 3d 1, 2 (1st Cir. 1994)

(per curiam) (“aiding and abetting is not a separate offense from the underlying

substantive crime”) (internal quotation marks and citation omitted); United

States v. Baca-Valenzuela, 118 F.3d 1223, 1232 (8th Cir. 1997) (“Whether one

is convicted as a principal or as an accomplice/aider and abettor, the crime of

which he is guilty is the same: whatever is the underlying offense.”); James,

2006 WL 2536614, at *3 (“Significantly, the aiding and abetting statute, 18

U.S.C. § 2, does not define a separate crime, but rather provides another means

of convicting someone of the underlying offense.”) (internal quotation marks

and footnote omitted).

* While the en banc petition in Vidal did argue that “the panel’s decision

conflicted with the Ninth Circuit’s decision in Penuliar” (Br. in Opp. 14), it did

spondent’s contention, the government is not seeking to “have

it both ways” in arguing (1) that the decision below conflicts

with Baca-Valenzuela and (2) that the grant of en banc review

in Vidal does not render certiorari review in Duenas-Alvarez

premature. Br. in Opp. 14 n.3. The decision below conflicts

with Baca-Valenzuela because that case interpreted a prior

definition of “aggravated felony” that did not explicitly in-

clude aiding and abetting; it does not conflict with Vidal be-

cause that case interpreted a current definition of “aggra-

vated felony” that does explicitly include aiding and abetting.

C. If Left Unreviewed, The Ninth Circuit’s Rule Will Have

A Substantial Effect On The Administration Of The Im-

migration Laws

The Duenas-Alvarez petition points out (at 15-16) that

there are approximately 8000 cases that could be affected by

the Ninth Circuit’s rule. Respondent contends that “[t]his

overstates the impact of the court of appeals’ decision,” be-

cause the decision “does not prevent [the government} from

showing * * * that an individual’s violation of [Section

10851(a)] constitutes a theft offense under the modified cate-

gorical approach.” Br. in Opp. 16. In fact, the decision does

not argue that the decision conflicted with Penuliar on the question presented

here. Instead, in the portion of the en banc petition cited by respondent, Vidal

argued that the documents in the record were insufficient to show that he had

been convicted of a “theft offense” under the “modified categorical” approach,

because the charging instrument merely tracked the language of California

Vehicle Code § 10851(a). See 04-50185 Pet. for Reh’g & Suggestion for Reh’g

En Banc at 4-5, 16-17. There is in fact no conflict between Vidal and Penuliar

on that point. The Ninth Circuit did not hold in Penuliar that a charging

instrument is insufficient if it tracks the statutory language; it held that it is

insufficient if the generic definition of an offense excludes aiding and abetting

(because a defendant charged as a principal can be convicted as an aider and

abettor). See Pet. App. 15a-17a. The generic definition at issue in Vidal

. explicitly includes aiding and abetting.

precisely that as a practical matter in a great number of

cases. As explained in the Duenas-Alvarez petition (at 17-18),

under the Ninth Circuit’s “modified categorical” holding (see

Pet. App. 15a-17a), even an alien explicitly charged as a prin-

cipal will not be deemed to have been convicted of a “theft

offense” on the basis of the charging instrument and corre-

sponding judgment (because a defendant charged as a princi-

pal can be convicted as an aider and abettor), and other docu-

ments from the criminal case often will be unavailable or diffi-

cult to obtain, or will shed no light on whether the alien was

convicted as what the Ninth Circuit regards as a “true princi-

pal.” .

The Duenas-Alvarez petition also explains (at 20-21) that

the Ninth Circuit’s rule has few obvious limits and may well

be extended to other crimes that are a basis for removal un-

der the INA. Respondent disagrees. According to him, the

holding of the Ninth Circuit is merely that “a violation of Sec-

tion 10851(a) of the California Vehicle Code does not * * *

constitute a ‘theft offense’ for purposes of the INA”; the

Ninth Circuit “has not extended that holding to other con-

texts”; and “there are logical reasons why [it] might choose

not to do so.” Br. in Opp. 17. In fact, the Ninth Circuit’s hold-

ing that the generic definition of “theft offense” excludes aid-

ing and abetting has already been applied to other theft

crimes, see United States v. Corona-Sanchez, 291 F.3d 1201,

1207-1208 (9th Cir. 2002) (en banc) (general theft under Cali-

fornia Penal Code § 484(a) (West 1999)); Martinez-Perez v.

Gonzales, 417 F.3d 1022, 1027-1028 (9th Cir. 2005) (grand

theft under California Penal Code § 487(c) (West 1999)), and

the brief in opposition does not identify any “logical reasons”

for not extending it to crimes such as murder, rape, and bur-

glary, see 8 U.S.C. 1101(a)(43)(A) and (G); Duenas-Alvarez

Pet. 20-21."

D. Duenas-Alvarez Is A Suitable Vehicle For Deciding

Whether The Ninth Circuit’s Rule Is Incorrect

1. Respondent contends (Br. in Opp. 17-18) that Duenas-

Alvarez is an unsuitable vehicle for deciding the question pre-

sented, because, unlike most California theft statutes, Califor-

nia Vehicle Code § 10851(a) includes the term “accessory,”

and thus is broacier than the generic definition of “theft of-

fense” without regard to whether that generic definition in-

cludes aiding and abetting. Even if the statute’s inclusion of

“accessory” means that Section 10851(a) is not categorically

a “theft offense,” Duenas-Alvurez is still a suitable vehicle for

deciding whether the generic definition includes aiding and

abetting. As explained in the Duenas-Alvarez reply brief (at

5-8), whatever the significance of the term “accessory” in the

statute, an alien charged with violating Section 10851(a) as a

principal has been convicted of a “theft offense” under the

“modified categorical” approach if “theft offense” includes

aiding and abetting—and, in any event, the Ninth Circuit has

already applied the rule challenged here to statutes that do

not include the term “accessory.”

2. Respondent contends (Br. in Opp. 19-20) that Duenas-

Alvarez is an unsuitable vehicle for the additional reason that

the Ninth Circuit remanded the case to the Board of Immi-

gration Appeals, and thus, according to respondent, the case

* Respondent also contends that “{t}here is no pressing need to resolve the

issue presented” because “both houses of Congress have addressed [it] through

pending legislation.” Br. in Opp. i4-15. As of the date of the filing of this reply

brief, however, a conference committee has not even been appointed to

reconcile the two major immigration-reform bills, which differ in significant

respects. As respondent acknowledges, therefore, “it is still unclear when and

if these bills will become law.” /d. at 15.4. For that reason, the pendency of

the bills provides no basis for denying certiorari.

is in an interlocutory posture. That contention fails for a

number of reasons.

In the first place, this case is not in an interlocutory pos-

ture in the sense in which that term is ordinarily understood

when the decision is by a federal court of appeals, because the

case has not been remanded to a federal district court, such

that it remains within the Judicial Branch. A decision of a

federal court that reverses an agency decision and remands

the matter to the agency is final for purposes of further judi-

cial review. Cf. Sullivan v. Finkelstein, 496 U.S. 617 (1990)

(order of district court effectively declaring regulations in-

valid and remanding case to agency is “final decision” under

28 U.S.C. 1291).

Moreover, assuming that the case was remanded “to con-

duct [a] modified categorical review” (Br. in Opp. 20)—the

court of appeals’ brief memorandum opinion does not say

what the purpose of the remand is—that would not be a basis

for denying review on “interlocutory” grounds in Duenas-

Alvarez even if there could be a case in which a court’s re-

mand to an agency renders the case nonfinal. Respondent

was charged as a principal, see Pet. App. 16a n.8; the Ninth

Circuit held that that is not a sufficient basis for a finding that

he was convicted as a principal (because a defendant charged

as a principa! can be convicted as an aider and abettor), id. at

15a-17a; and Duenas-Alvarez was likewise charged as a princi-

pal, in language: essentially identical to that in the charging

instruments in this case, see Duenas-Alvarez Pet. App. 13a

(No. 05-1629). The Ninth Circuit’s “modified categorical”

holding in this case and the administrative record in Duenas-

Alvarez thus combine to make it virtually inevitable that the

agency would find that Duenas-Alvarez was not convicted of

a “theft offense,” and the government would not be able to

seek judicial review of that decision. Under these circum-

stances, the court of appeals’ decision in Duenas-Alvarez is

final (rather than interlocutory) both because the “outcome of

[the] further proceedings [is] preordained” and because “the

governing * * * law would not permit (the government]

again to present [its] * * * claim[] for review” if the agency

ruled in favor of Duenas-Alvarez. Cox Broad. Corp. v. Cohn,

420 U.S. 469, 479, 481 (1975).

Even if the decision could be viewed as interlocutory, how-

ever, “there is no absolute bar to review of nonfinal judg-

ments of the lower federal courts,” Mazurek v. Armstrong,

520 U.S. 968, 975 (1997) (per curiam), and the considerations

identified above would justify the exercise of this Court’s cer-

tiorari jurisdiction. The exercise of that jurisdiction in

Duenas-Alvarez is particularly warranted inasmuch as the

Ninth Circuit’s rule that “theft offense” excludes aiding and

abetting is “clearly erroneous,” ibid.; the rule conflicts with

the rule applied in other circuits; a large number of immigra-

tion cases are affected by the rule, see Duenas-Alvarez Pet.

15-21; there is a substantial threshold. jurisdictional question

in this case and most of the other cases in which the Ninth

Circuit has applied the rule, see id. at 23-24; and there is

likely to come a point in the near future at which the question

presented no longer reaches that court, inasmuch as the

Board of Immigration Appeals is bound by the Ninth Circuit’s

decisions in cases arising there, see, e.g., In re Anselmo, 20 I.

& N. Dec. 25, 31-32 (B.1.A. 1989).

x* ee kK *

For the foregoing reasons and those stated in the petition

for a writ of certiorari, the petition for a writ of certiorari

should be held pending this Court’s disposition of Gonzales v.

Duenas-Alvarez, No. 05-1629, and then disposed of accord-

ingly.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SEPTEMBER 2006

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