     Case: 13-40939   Document: 00512787774        Page: 1   Date Filed: 09/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                     September 30, 2014
                                    No. 13-40939
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

EDUARDO RODRIGUEZ-SALAZAR,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
      The sentence of Appellant Rodriguez-Salazar was enhanced because of
his prior conviction for the Texas crime of theft, determined by the district
judge to be an aggravated felony.        Appellant appeals only that sentence
enhancement. We hold that the Texas law for theft without effective consent
is in the same category as theft without consent, and affirm.
                                    Background
      Appellant Rodriguez pleaded guilty of being an alien present in the
United States after deportation and conceded that he had been previously
convicted of felony theft under Texas Penal Code § 31.03(a). That Texas theft
statute states the offense as the appropriation of property “without the owner’s
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                                  No. 13-40939
effective consent.” Tex. Penal Code § 31.03(b)(1). And the consent to temporary
possession is not effective if it was induced by deception or coercion. The
previous section, § 31.02, explains that Section 31.03 supersedes many
separate offenses, such as theft, theft by false pretext, acquisition of property
by threat, etc.
      The district court enhanced the offense points eight points for appellant’s
sentence because of the conviction for aggravated felony directed by guideline
§ 2L1.2(b)(1)(C), aggravated felony being defined by the commentary and
8 U.S.C. § 1101(a)(43)(G) as “a theft offense (including receipt of stolen
property).”
      This court has adopted this further definition: “‘theft offense (including
receipt of stolen property)’ is a taking of property or an exercise of control over
property without consent with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is less than total or
permanent.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (citations
omitted).
      Appellant insists that the Texas statute in defining theft to include the
taking of property from the owner with consent induced through deception or
coercion substantially changes the crime from generic theft that is the taking
of property without the owner’s consent.
      Our task is to determine whether the Texas offense is comparable to and
categorically fits within the generic federal definition of the corresponding
crime of theft. We must ask if the state would apply its statute to conduct that
falls outside the generic definition of theft. Moncrieffe v. Holder, 133 S. Ct.
1678, 1684-85 (2013).
      Clearly the definition of theft we have followed does not limit the crime
to consent withheld when a guilty person takes possession of the property from
the owner. The withholding of consent is expressly extended to the time the
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                                 No. 13-40939
thief or embezzler exercises control of the property. The owner’s consent is
comparable whether measured before or after the moment the property is
transferred. We see no justification to carry that narrow distinction to change
the generic theft crime.
      Appellant replies that we are bound by prior precedent holding that
generic theft is distinctly different from fraud because generic theft is
committed by obtaining property without the victim’s consent whereas fraud
is committed with the victim’s fraudulently obtained consent. The precedent
offered is Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008). The decision
there was that the New York conviction for bank fraud was an aggravated
felony. The court did say that it would not have been true of a theft crime, but
this question of a theft crime was not before the court and is not controlling
precedent.
      The Texas law that only affects this stage of withheld consent does not
deviate from the generic crime of theft. In either case the owner denies consent
to the wrongdoer who takes or exercises control of property.
      AFFIRMED. The mandate to issue forthwith.




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                                   No. 13-40939
SOUTHWICK, Circuit Judge, concurring.
      While I agree with the result that the court reaches, I believe,
respectfully, that a further explanation is necessary.
      In determining the generic, contemporary meaning of an offense, the
Supreme Court has suggested courts should consider the Model Penal Code,
state codes, and a treatise. Taylor v. United States, 495 U.S. 575, 593, 598 &
n.8 (1990). For the generic description of theft crimes, the Seventh Circuit
used the broad definition in the Model Penal Code, which combines eight
different traditional offenses including the use of deception:
      (1) theft by unlawful taking or disposition; (2) theft by deception;
      (3) theft by extortion; (4) theft of property lost, mislaid, or delivered
      by mistake; (5) receiving stolen property; (6) theft of services; (7)
      theft by failure to make required disposition of funds received; and
      (8) unauthorized use of automobiles and other vehicles.
Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1009 (7th Cir. 2001)
(summarizing MODEL PENAL CODE §§ 223.2–223.9.). Specifically, the Model
Penal Code provides that “[a] person is guilty of theft if he purposely obtains
property of another by deception.” MODEL PENAL CODE § 223.3. The Seventh
Circuit also employed Black’s Law Dictionary, which includes in its definition
of theft the “[o]btaining by deception control over property . . . .”             See
Hernandez-Mancilla, 246 F.3d at 1007 (quoting BLACK’S LAW DICTIONARY 1477
(6th ed. 1990)).
      In 2007, we relied on the Seventh Circuit’s Hernandez opinion when we
stated the broad definition quoted in the majority’s opinion, namely, that the
generic offense of theft is the “taking of property or an exercise of control over
property without consent with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is less than total or



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                                No. 13-40939
permanent.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (quoting
Hernandez-Mancilla, 246 F.3d at 1009).
      I do not see in our language just quoted from Burke the precise answer
to the question of whether theft by deception is included within the
contemporary, generic meaning of theft. The majority, likely clearer-eyed,
does. I find it necessary to return to the analysis in the Seventh Circuit’s
opinion to show that theft by deception is encompassed within the generic
definition of theft.
      For these reasons, I agree with the majority that we must reject
Rodriguez-Salazar’s argument that his conviction under the Texas Penal Code
Section 31.03(a) does not qualify as an aggravated felony.




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