                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 20, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,

              Plaintiff-Appellee,

 v.                                                      No. 06-4143
                                                  (D.C. No. 1:05-CR -157-TS)
 JUA N C AR LOS ELIZALD E-                                (D. Utah)
 ALTAM IRANO, a/k/a Jorge Islas-
 Perez,

              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before M cKA Y, L UC ER O, and HO LM ES, Circuit Judges.


      Defendant Juan Carlos Elizade-A ltamirano pleaded guilty to illegal re-entry

of a deported alien, in violation of 8 U.S.C. § 1326, and was sentenced to twenty-

four m onths’ imprisonment and twelve months of supervised release. At

sentencing, the district court followed the recommendation provided in the

presentence report and classified Defendant’s prior Utah misdemeanor joyriding

conviction as an “aggravated felony.” As a result, the district court imposed an




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
eight-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C).

Defendant appeals the imposition of this sentencing enhancement.

      W e review a district court’s interpretation of the Sentencing Guidelines de

novo. United States v. M artinez-M acias, 472 F.3d 1216, 1218 (10th Cir. 2007).

Section 2L1.2(b)(1)(C) calls for an eight-level sentencing increase where a

defendant previously was deported following a conviction for an aggravated

felony. Under the Sentencing Guidelines, “aggravated felony” has the same

meaning given that term by Section 101(a)(43) of the Immigration and Nationality

Act, 8 U.S.C. § 1101(a)(43). See U.S.S.G. § 2L1.2, cmt. 3(A). According to IN A

§ 101(a)(43)(g), the term “aggravated felony” includes “a theft offense (including

the receipt of stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.” See 8 U .S.C. § 1101(a)(43)(g). The phrase

“theft offense (including the receipt of stolen property)” is not further defined.

      Defendant previously received a one-year suspended sentence following his

conviction in Utah state court for joyriding, a class A misdemeanor. See Utah

Code Ann. § 41-1a-1314(1). Under the INA, a misdemeanor conviction may

qualify as an aggravated felony if a one-year sentence is imposed, even if that

sentence is entirely suspended. See 8 U.S.C. § 1101(a)(48)(B). Thus, the

question facing this court is whether the term “theft offense” as employed by the

INA includes the crime of joyriding as defined by Utah law, such that joyriding

must be labeled an “aggravated felony” warranting the eight-level sentencing

                                          -2-
enhancement under § 2L1.2(b)(1)(C).

      In analyzing this question, we employ the “categorical approach”

established by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599-

600 (1990), and need “look only to the fact of conviction and the statutory

definition of the prior offense” to resolve the issue. Id. at 602; see also United

States v. Hernandez-Rodriguez, 388 F.3d 779, 782 (10th Cir. 2004).

      Under Utah law, a person is guilty of misdemeanor joyriding if he

“exercise[s] unauthorized control over a motor vehicle that is not his own,

without the consent of the owner or lawful custodian, and with the intent to

temporarily deprive the owner or lawful custodian of possession of the motor

vehicle.” Utah Code Ann. § 41-1a-1314(1). W e compare this definition to that

set forth in United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001),

which stated that:

      distilled to its essence, . . . the modern, generic, and broad
      definition of the entire phrase “theft offense (including receipt of
      stolen property)” is a taking of property or an exercise of control
      over property without consent with the criminal intent to deprive
      the owner of rights and benefits of ownership, even if such
      deprivation is less than total or permanent.

Id. at 1125 (alteration in original) (quoting Hernandez-M ancilla v. INS, 246 F.3d

1002, 1009 (7th Cir. 2001)).

      Defendant argues that joyriding involves so limited a deprivation that it

falls outside the generic definition of “theft offense.” A ccording to Defendant,



                                          -3-
joyriding “could entail only a brief borrowing of a vehicle without any significant

interference with ownership rights” and “the reference in Vasquez-Flores to

deprivations w hich are ‘less than permanent’ is dicta.” (D ef.’s Reply Br. at 2; see

id. (“In ruling on this issue, the court in Vasquez-Flores did not need to consider,

and did not consider, whether a minor, temporary deprivation of property should

be considered as a theft offense.”).) Rather, Defendant urges this court to apply

the reasoning of the M odel Penal Code, which “draws a fundamental distinction

between a temporary unauthorized use of a vehicle and a theft.” (Def.’s Opening

Br. at 15 (citing M PC § 223.9).)

      Defendant’s position that the generic definition stated in Vasquez-Flores is

mere dicta is w rong. The fact that Vasquez-Flores dealt with a different Utah law

does not alter the importance or necessity of its statement. Defining “theft

offense” in the § 2L1.2(b)(1)(C) context 1 was essential to the determination of the

issue on appeal in Vasquez-Flores. See Rohrbaugh v. Celotex Corp., 53 F.3d

1181, 1184 (10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion

concerning some rule of law or legal proposition not necessarily involved nor

essential to determination of the case in hand.’” (quoting Black’s Law Dictionary

454 (6th ed. 1990))).

      M oreover, Vasquez-Flores acknowledged the role the M PC played in the



      1
       Vasquez-Flores concerned the predecessor to § 2L1.2(b)(1)(C), then
designated § 2L1.2(b)(1)(A).

                                         -4-
reasoning of other courts in deriving the broader generic definition and implicitly

elected to define “theft offense” more broadly than the M PC definition. See

Vasquez-Flores, 265 F.3d at 1124-25; see also United States v. Corona-Sanchez,

291 F.3d 1201, 1205 (9th Cir. 2002) (“Although use of the M PC is certainly a

plausible approach, adoption of the standard established by the two other circuits

that have construed the phrase makes more sense in a national context.”). As we

concluded in Vasquez-Flores, “‘theft offense (including receipt of stolen

property)’ includes more crimes than just ‘theft’” because Congress’ intentional

use of the phrase “theft offense” “‘signal[s] that it was not presenting an

exhaustive list of offenses (i.e. just theft and receipt).’” Vasquez-Flores, 265

F.3d at 1124 (quoting Hernandez-M ancilla, 246 F.3d at 1008). Accordingly, we

interpret the phrase broadly. See id.

      Our interpretation leads us to conclude that the state statute fits within the

federal generic definition. The fact that Section 41-1a-1314(1) criminalizes

joyriding based in part on an “intent to temporarily deprive the owner . . . of the

motor vehicle” is completely in line with Vasquez-Flores’s “less than total or

permanent” intent language. 2 Cf. Gonzales v. Duenas-Alvarez, --- U.S. ----, 127



      2
        W hile we have rejected the view that whether a particular crime
constitutes an aggravated felony under the definitions referred to in the
Sentencing Guidelines depends upon how the crime is characterized under state
law, see United States v. Frias-Trujillo, 9 F.3d 875, 876 n.1 (10th Cir. 1993), w e
observe that Utah law treats both misdemeanor and felony joyriding as a lesser-
                                                                       (continued...)

                                         -5-
S. Ct. 815, 822 (2007) (“[T]o find that a state statute creates a crime outside the

generic definition of a listed crime in a federal statute requires more than the

application of legal imagination to a state statute’s language. It requires a

realistic probability, not a theoretical possibility, that the State would apply its

statute to conduct that falls outside the generic definition of a crime.”).

      Based on our determination that a Utah misdemeanor joyriding conviction

constitutes an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(g), we AFFIR M

Defendant’s conviction and sentence.


                                                 Entered for the Court



                                                 M onroe G. M cKay
                                                 Circuit Judge




      2
       (...continued)
included-offense of theft, see Utah Code Ann. § 41-1a-1314(5); see also State v.
Cornish, 568 P.2d 360, 362 (Utah 1977).

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