     Case: 15-41463      Document: 00514173083         Page: 1    Date Filed: 09/27/2017




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

                                      No. 15-41463
                                                                                Fifth Circuit

                                                                              FILED
                                                                      September 27, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

HERNAN GOMEZ-VALDIVA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-541-1


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Hernan Gomez-Valdiva appeals his eight-level upward adjustment
under United States Sentencing Guideline § 2L1.2(b)(1)(C) (2014). He contends
that the district court plainly erred by finding that a prior Georgia “theft by
taking” conviction constitutes an aggravated felony for § 2L1.2(b)(1)(C)
purposes. Because the district court did not err, we AFFIRM the district court’s
judgement.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41463
                                        I.
      Gomez-Valdiva pleaded guilty to unlawful reentry into the United States
in violation of 8 U.S.C. §§ 1326(a) and (b)(2). In accordance with the
Presentence Report (“PSR”), the district court determined Gomez-Valdiva’s
guildeline range to be 12 to 18 months, based on a criminal history category of
I and a total offense level of 13. This offense level also included an eight-level
enhancement for a prior “aggravated felony,” based on Gomez-Valdiva’s 2007
Georgia “theft by taking” conviction. See Ga. Code Ann. § 16-8-2. The district
court sentenced Gomez-Valdiva to a within-guidelines sentence of 12 months
and no term of supervised release. From that sentence, Gomez-Valdiva timely
appeals.
                                       II.
      We review a district court’s interpretation and application of the United
States Sentencing Guidelines de novo. United States v. Medina-Torres, 703
F.3d 770, 773 (5th Cir. 2012). Because Gomez-Valdiva failed to object to the
PSR before the district court, we review his claim for plain error. Id. at 773-74.
Under plain-error review, Gomez-Valdiva must demonstrate that: “(1) the
district court committed error, (2) the error was plain or obvious, (3) the error
affected his substantial rights, and (4) the error ‘seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.’” See United
States v. Williams, 620 F.3d 483, 493-94 (5th Cir. 2010) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)).
      Gomez-Valdiva contends that the district court erred by finding that his
Georgia “theft by taking” conviction was an aggravated felony for U.S.S.G. §
2L1.2(b)(1)(C) purposes. To determine whether the district court erred, we ask
“whether the [Georgia] offense is comparable to and categorically fits within
the generic federal definition of the corresponding crime of theft.” United States
v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir. 2014). “[A] state offense is a
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                                   No. 15-41463
categorical match with a generic federal offense only if a conviction of the state
offense necessarily involved . . . facts equating to the generic federal offense.”
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
      As previously stated, Gomez-Valdiva was convicted under Ga. Code Ann.
§ 16-8-2, which states that “[a] person commits the offense of theft by taking
when he unlawfully takes or, being in lawful possession thereof, unlawfully
appropriates any property of another with the intention of depriving him of the
property, regardless of the manner in which the property is taken or
appropriated.” The generic definition of theft 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.” Rodriguez-Salazar, 768 F.3d at 438 (quoting
Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007)).
      In arguing that that Georgia “theft by taking” does not categorically
match the generic theft definition, Gomez-Valdiva relies on Vassell v. U.S.
Attorney General, 839 F.3d 1352 (11th Cir. 2016). In that case, the Eleventh
Circuit held that § 16-8-2 does not match the generic theft definition because
it does not require that the victim withhold consent, and thus is broader than
the generic theft definition, which includes a “without consent” element. Id. at
1359-60. The Eleventh Circuit also rejected the government’s contention that
fraudulently obtained consent could satisfy the “without consent” element,
because then “[a]ll fraud could become an exercise of control over[] property
without consent’ at whatever point the fraudulently obtained consent expires.”
Id. at 1363 (quotation omitted).
      However persuasive the Eleventh Circuit’s interpretation of Georgia’s
“theft by taking” statute may be, our decision in Rodriguez-Salazar, 768 F.3d
at 438, appears to foreclose Gomez-Valdiva’s claim of error. In that case, we
expressly rejected arguments similar to his regarding whether a Texas theft
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statute categorically matched the generic theft definition, stating that “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.” Id. We
also rejected 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.”
Id. (distinguishing Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008)). Instead,
we stated that generic theft merely requires that “the owner denies consent to
the wrongdoer who takes or exercises control of property,” regardless of when
consent is denied. Id.
      Because Gomez-Valdiva’s claim of error is foreclosed by Rodriguez-
Salazar, we AFFIRM.




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