     Case: 10-40972     Document: 00511665202         Page: 1     Date Filed: 11/14/2011




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

                                                                            FILED
                                                                        November 14, 2011

                                       No. 10-40972                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JESUS JUAREZ-GONZALEZ

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  2:10-CR-420-1


Before REAVLEY, GARZA, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jesus Juarez-Gonzalez (Juarez) pleaded guilty to one count of having been
found unlawfully present in the United States after deportation, in violation of
8 U.S.C. § 1326(a) and (b).           The presentence investigation report (PSR)
calculated a base offense level of eight under USSG § 2L1.2(a). The PSR
recommended an eight-level enhancement under USSG § 2L1.2(b)(1)(C) on the
basis of Juarez’s three prior convictions for third-degree theft in Washington in
1998.       The PSR recommended a three-level decrease for acceptance of

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 10-40972

responsibility pursuant to USSG § 3E1.1. A total offense level of thirteen and
a criminal history category of IV put Juarez’s sentence in a range of twenty-four
to thirty months. Juarez did not object to the PSR. On September 16, 2010, the
district court sentenced Juarez to twenty-four months in the custody of the
Federal Bureau of Prisons, with three years of supervised release.1
Subsequently, Juarez appealed, asserting that the district court committed plain
error by treating the three prior Washington convictions as “aggravated felonies”
under USSG § 2L1.2(b)(1)(C).
                             STANDARD OF REVIEW
       This court reviews the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007) (citing United States v.
Huerta, 182 F.3d 361, 364 (5th Cir. 1999). If a factual finding is plausible in
light of the record as a whole, it is not clearly erroneous. Huerta, 182 F.3d at
364. “Where, as here, the defendant fails to object to his sentence during
sentencing, we review the District Court's sentencing decision for plain error.”
United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). To establish plain
error, the defendant must show an error that has not been affirmatively waived,
that is clear or obvious, and that affects his substantial rights. See Puckett v.
United States, 129 S.Ct. 1423, 1429, 556 U.S. 129, 173 L.Ed. 2d 266 (2009).


                                     DISCUSSION
I. Whether the district court committed reversible plain error when it
treated Juarez’s prior Washington convictions for third-degree theft as
“aggravated felonies” under USSG § 2L1.2(b)(1)(C).




       1
       The district court judge indicated that she had intended to sentence Juarez to thirty
months, but misspoke and imposed a twenty-four month sentence.

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                                  No. 10-40972

      Juarez asserts that the district court erred in concluding his prior
Washington convictions for third-degree theft qualified as “aggravated felonies”
under USSG § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(G). Juarez asserts that
Washington’s definition of theft encompasses conduct broader than the generic
definition of theft including theft of services and theft by deception. Further,
Juarez asserts that the state court documents in the record fail to establish any
of the convictions in the record as a conviction qualifying as an aggravated
felony. Juarez also asserts that this plain error affected his substantial rights.
      The Government asserts that the inclusion of theft of services in the
Washington theft statute does not result in a broader definition than the generic
definition adopted by this court. The Government further asserts that Juarez
fails to meet his burden to demonstrate that the lack of court documents affects
the public reputation, fairness, and integrity of the judicial proceedings.
      Under § 1326(a), the statutory maximum sentence for illegal reentry with
no enhancements is two years in prison. 8 U.S.C. § 1326(a). See also United
States v. Zavala-Sustaita, 214 F.3d 601, 603 (5th Cir. 2000). If a defendant
illegally reenters after a conviction for three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony and subsequent removal,
the maximum sentence increases to 10 years. 8 U.S.C. § 1326(b)(1). If a
defendant illegally reenters after a conviction for an aggravated felony and
subsequent removal, the maximum sentence increases to 20 years. 8 U.S.C. §
1326(b)(2).
      The degree of sentence enhancement depends on the provisions of § 2L1.2,
the Guideline that implements § 1326. Zavala-Sustaita, 214 F.3d at 603.
Section 2L1.2 provides that the base offense level for illegally reentering the
United States shall be increased by eight levels if the defendant has a prior
aggravated felony conviction. USSG § 2L1.2(b)(1)(C). The term aggravated
felony is defined in 8 U.S.C. § 1101(a)(43), without regard to the date of

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conviction for the aggravated felony. USSG § 2L1.2, comment. (n.3(A)). That
statute, in turn, defines aggravated felony to include "a theft offense (including
receipt of stolen property) or burglary offense for which the term of
imprisonment [is] at least one year."       § 1101(a)(43)(G) (internal footnote
omitted).
      Because the Guidelines do not further define a "theft offense," this court
uses "a common sense approach” to define the enumerated crime by its “generic,
contemporary meaning." United States v. Torres-Diaz, 438 F.3d 529, 536 (5th
Cir. 2006) (using the common sense approach to define aggravated assault);
United States v. Argumedo-Perez, 326 F. App'x 293, 295-96 (5th Cir.
2009)(unpublished)(using the common sense approach to define theft). To
establish the generic, contemporary meaning of theft, this court may look, among
other things, to the Model Penal Code, federal statutes, modern state codes,
dictionaries, and treatises. See Torres-Diaz, 438 F.3d at 536; United States v.
Velez-Alderete, 569 F.3d 541, 544 (5th Cir. 2009).
      The Model Penal Code § 223.6 provides that a person is guilty of theft by
receiving stolen property:
            if he purposely receives, retains, or disposes of movable
      property of another knowing that it has been stolen, or believing
      that it has probably been stolen, unless the property is received,
      retained, or disposed with purpose to restore it to the owner.
      "Receiving" means acquiring possession, control or title, or lending
      on the security of the property.

Model Penal Code § 223.6(1).
      More recently, this court generically defined the phrase "theft offense
(including receipt of stolen property)" under § 1101(a)(43)(G) to mean "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." Nolos v. Holder, 611 F.3d 279,


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285 (5th Cir. 2010) (an immigration case); see United States v. Blancas-Rosas,
414 F. App’x 634, 636 (5th Cir. 2011) (unpublished) (using the Nolos definition
in a direct criminal appeal involving the application of the eight-level
enhancement under § 2L1.2(b)(1)(C)).
      In the instant case, the probation officer considered the following
convictions for purposes of the § 2L1.2(b)(1)(C) enhancement: (1) third-degree
theft in Washington in June 1998, for which Juarez was sentenced to one year
in jail suspended; (2) third-degree theft in Washington in July 1998, for which
Juarez was sentenced to one year in jail suspended; and (3) third-degree theft
in Washington in October 1998, for which Juarez was sentenced to one year in
jail. See Wash. Rev. Code Ann. § 9A.56.020(1) (1998) (theft), § 9A.56.050 (1998)
(theft in the third degree).
      To determine whether Juarez's theft convictions constitute aggravated
felony convictions for purposes of the § 2L1.2(b)(1)(C) enhancement, this court
uses the categorical approach. See Torres-Diaz, 438 F.3d at 536. Under that
approach, this court reviews the criminal statute under which the defendant was
convicted, examining the statutory elements of the crime, rather than the
underlying facts. Id.; Taylor v. United States, 495 U.S. 575, 598-99 (1990).
However, if the statute at issue is divisible and criminalizes conduct that
constitutes a theft offense within the generic definition of theft and conduct that
does not, the district court, using the modified categorical approach, may also
consider the charging papers, a written plea agreement, a guilty plea transcript,
jury instructions, and factual findings made by a trial judge to which the
defendant assented to determine whether the prior crime constitutes a theft
offense. United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008)
(using the modified categorical approach to determine whether the defendant's
prior conviction was a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii)); see
also Nolos, 611 F.3d at 285 (using the modified categorical approach to

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determine whether the defendant's prior conviction was a theft offense for
purposes of § 1143(a)(43)(G)).
      In 1998, the year Juarez was convicted of all three theft offenses,
Washington law defined theft as follows:
            (a)   To wrongfully obtain or exert unauthorized control over
      the property or services of another or the value thereof, with intent
      to deprive him of such property or services; or

            (b)   By color or aid of deception to obtain control over the
      property or services of another or the value thereof, with intent to
      deprive him of such property or services; or

            (c)    To appropriate lost or misdelivered property or services
      of another, or the value thereof, with intent to deprive him of such
      property or services.

Wash. Rev. Code Ann. § 9A.56.020(1) (1998). "A person is guilty of theft in the
third degree if he commits theft of property or services which does not exceed
two hundred fifty dollars in value." Wash. Rev. Code Ann. § 9A.56.050(1) (1998).
Theft in the third degree is a gross misdemeanor in Washington. Wash. Rev.
Code. Ann. § 9A.56.050(2) (1998).
      Juarez argues that Washington's theft definition is broader than this
court's generic theft definition because Washington's definition includes theft of
services. Juarez’s argument has merit. The Model Penal Code and this court
have specifically defined theft to mean the deprivation of property. Model Penal
Code § 223.6(1); Nolos, 611 F.3d at 285. Every subsection of the Washington
statute, on the other hand, defines theft to include deprivation of property or
deprivation of services. The Government argues that this court has included
deprivation of services in its theft definition, citing Nolos in support of its
argument. However, Nolos is distinguishable from the instant case.
      In Nolos, the defendant, a lawful permanent resident, was ordered
removed after he pleaded guilty to theft in violation of § 205.0832 of the 2003

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Nevada Revised Statutes. Nolos, 611 F.3d at 281. On appeal, Nolos argued that
§ 205.0832 included offenses which did not constitute theft offenses for purposes
of § 1101(a)(43)(G), including the offense of which he was convicted. Id. at
284-85. Section 205.0832, like the statute in the instant case, defined theft to
include the deprivation of property and the deprivation of services. Nev. Rev.
Stat. Ann. § 205.0832 (2003). This court reviewed the Nevada single-count
information, which stated that Nolos processed phony merchandise refunds to
his own credit card while he was employed as a salesperson at a Nordstrom's
store and charged Nolos with "theft by using services or property of another
person entrusted to him or placed in his possession for a limited use, having a
value of $250.00, or more." Nolos, 611 F.3d at 285. This court concluded that
the language in the information tracked the language in § 205.0832(1)(b) and
held that the language in that subsection met its generic definition of theft. Id.
at 285-86. The Nolos court did not specifically hold that theft includes theft of
services.
      Further, the Ninth Circuit has rejected the notion that the generic
definition of theft includes theft of services. See Huerta-Guevara v. Ashcroft, 321
F.3d 883, 887 (9th Cir. 2003) (citing United States v. Corona-Sanchez, 291 F.3d
1201, 1208 (9th Cir. 2002) (en banc), superseded on other grounds), § 2L1.2,
comment (n.4) (2002); but see Abimbola v. Ashcroft, 378 F.3d 173, 178-79 (2d Cir.
2004) (holding that the generic definition of theft includes theft of services).
      Juarez also argues that Washington's theft definition is broader than this
court's generic theft definition because Washington's definition includes theft by
deception, which need not occur without the owner's consent, and which
encompasses the offense of fraud. Juarez notes that although § 1101(a)(43)(M)
encompasses the offenses of fraud and deceit, the loss to the victim must exceed
$10,000 for the offense to qualify as an aggravated felony but that, in 1998, the



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value assigned to theft in the third degree offenses was $250 dollars or less.
Wash. Rev. Code Ann. § 9A.56.050(1) (1998).
      Juarez's second argument also has merit. In Argumedo-Perez, 326 F.
App'x at 294-95, the district court concluded that the defendant's prior Virginia
conviction for grand larceny was a theft offense under § 1101(a)(43)(G) and
increased the defendant's base offense level by eight levels pursuant to §
2L1.2(b)(1)(C). This court, again in an unpublished opinion, analyzed the
Virginia common-law definition of larceny, the relevant statutes, the admissible
documents, and Virginia case-law and determined that the defendant's grand
larceny conviction did not qualify as a generic theft offense because he could
have committed the offense with the owner's consent. Id. at 296-98. In the
instant case, Juarez could have committed the theft offenses with the owner's
consent.
      The Government concedes that Juarez's second argument presents a closer
question for this court. The Government maintains, however, that even if
Juarez has established clear or obvious error, Juarez has failed to establish that
the error affected the fairness, integrity or reputation of the judicial proceedings.
In support of its argument, the Government relies on an off-the-record discussion
between Juarez's trial attorney, the Federal Public Defender (FPD), and the
probation officer. Allegedly, the probation officer told the FPD that he could
obtain the necessary state court documents but the FPD told the probation
officer it was not necessary to do so.         This court will not consider the
Government’s argument regarding evidence outside of the record. See United
States v. Bell, 966 F.2d 914, 918 (5th Cir. 1992).
      Although under the modified categorical approach the district court was
permitted to review the state court documents to narrow the statute of
conviction, the state court documents in the instant case are of little help. The
documents submitted by the probation officer, which include a judgment for the

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October 1998 theft conviction and municipal docket sheets for all three theft
convictions, do little more than indicate that Juarez was convicted of third
degree theft on three separate occasions. The documents neither indicate the
statutes of conviction nor the facts leading to Juarez's convictions.
      We agree that the district court committed clear or obvious error when it
increased Juarez's offense level by eight levels pursuant to § 2L1.2(b)(1)(C). The
Washington statute at issue clearly prohibits theft of property, theft of services,
theft by deception, and theft by fraud. Wash. Rev. Code Ann. § 9A.56.020(1)
(1998). The Model Penal Code, on the other hand, prohibits only theft of
property. Model Penal Code § 223.6(1). This court's generic definition prohibits
theft of property and requires that the theft occur without the owner's consent.
Nolos, 611 F.3d at 285.
      Therefore, we must now determine whether this error affected Juarez's
substantial rights. See Puckett, 129 S.Ct. at 1429. To show that the error
affected his substantial rights, Juarez must show "there is a reasonable
probability that, but for the district court's misapplication of the Guidelines, [he]
would have received a lesser sentence." United States v. Dickson, 632 F.3d 186,
191 (5th Cir. 2011).
      Increasing Juarez's offense level by eight levels resulted in a total offense
level of 13. Based on his total offense level of 13 and his criminal history
category of IV, Juarez's advisory guidelines range of imprisonment was 24 to 30
months. If the district court had imposed a four-level enhancement, Juarez's
total offense level would have been nine and his advisory guidelines range of
imprisonment would have been 12 to 18 months. Because Juarez’s sentencing
range and the correct sentencing range did not overlap, the district court’s error
necessarily increased Juarez’s sentence and affected his substantial rights. See
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).



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                               CONCLUSION
      For these reasons, we VACATE Juarez’s sentence and REMAND for
resentencing consistent with this opinion.




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