                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-2229


SAYED GAD OMARGHARIB,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.

-------------------------

CAPITAL AREA IMMIGRANTS' RIGHTS        COALITION;   IMMIGRANT   AND
REFUGEE APPELLATE CENTER, LLC,

                Amici Supporting Petitioner.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 16, 2014            Decided:    December 23, 2014


Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.


Petition for review granted; reversed and remanded with
instructions by published opinion.       Judge Floyd wrote the
opinion, in which Judge Niemeyer and Judge Wynn joined.   Judge
Niemeyer wrote a separate concurring opinion.


ARGUED: Steffanie Jones Lewis, INTERNATIONAL BUSINESS LAW FIRM,
PC, Washington, D.C., for Petitioner.     Aimee J. Carmichael,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Civil Division, John S. Hogan, Senior Litigation
Counsel,   Office   of   Immigration   Litigation,  UNITED  STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.     Heidi
Altman, Morgan Macdonald, CAPITAL AREA IMMIGRANTS' RIGHTS
COALITION, Washington, D.C.; Ben Winograd, IMMIGRANT & REFUGEE
APPELLATE   CENTER,    LLC,   Alexandria,   Virginia,   for  Amici
Supporting Petitioner.




                                2
FLOYD, Circuit Judge:

       In this appeal, we consider whether Sayed Gad Omargharib’s

conviction under Virginia’s grand larceny statute, Va. Code Ann.

§ 18.2-95,       constitutes             an      “aggravated            felony”       under       the

Immigration        and         Nationality             Act     (INA)       § 101,       8     U.S.C.

§ 1101(a)(43).           The Board of Immigration Appeals (BIA) answered

this question in the affirmative using the so-called modified

categorical approach, as clarified by Descamps v. United States,

133    S.   Ct.         2276      (2013).             Under        Descamps,      the       modified

categorical approach applies only if Virginia’s definition of

“larceny”     is      “divisible”           —    that        is,   if   it   lists      potential

offense     elements         in    the    alternative,             thus    creating         multiple

versions of the crime.                The BIA concluded that Virginia larceny

is divisible because Virginia state courts have defined it to

include either theft or fraud.

       Consistent with our prior precedent on this issue, however,

we    conclude     that        mere      use     of     the    disjunctive          “or”     in   the

definition       of      a     crime        does       not     automatically          render       it

divisible.         We further hold that, under our recent decisions

construing        Descamps,           the        Virginia          crime     of      larceny       is

indivisible        as    a     matter       of     law.        As    such,     we    agree        with

Omargharib that the modified categorical approach has no role to

play in this case.                Instead, the categorical approach applies,

and under that approach Omargharib’s grand larceny conviction

                                                   3
does not constitute an aggravated felony under the INA.                                   We

therefore grant Omargharib’s petition for review, reverse the

BIA’s ruling, and remand with instructions to vacate the order

of removal.



                                             I.

     Omargharib,         an    Egyptian   native        and    citizen,      entered      the

United States in 1985 and became a lawful permanent resident in

1990.        In 2011, he was convicted in Virginia state court of

grand       larceny    under    Va.   Code       Ann.    § 18.2-95     for     “tak[ing],

steal[ing], and carry[ing] away” two pool cues valued in excess

of $200 following a dispute with his opponent in a local pool

league.       J.A. 452.        Omargharib received a suspended sentence of

twelve months. 1

        Following       his    conviction,        the     Department      of       Homeland

Security       sought     Omargharib’s        removal,         contending      that       his

conviction constituted an “aggravated felony” under the INA —

namely,       “a      theft    offense    . . .         for    which   the         term   of

imprisonment           [is]     at    least        one        year.”           8     U.S.C.

§ 1101(a)(43)(G); see 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering

deportable an alien who is convicted of an aggravated felony).

        1
       Omargharib later filed a motion to reconsider his sentence
(which the trial court denied), but did not appeal his
conviction.    He also filed habeas motions in both state and
federal court, all of which were likewise denied.


                                             4
Before an immigration judge (IJ), Omargharib denied that his

conviction made him removable.             Omargharib argued that, under

the categorical approach set forth in Taylor v. United States,

495 U.S. 575 (1990), the IJ could only compare the elements of

larceny under Virginia law with the generic elements of a “theft

offense” in the INA and determine whether they match.                    According

to Omargharib, the elements do not match because Virginia law

broadly defines larceny to include both theft and fraud, whereas

the INA’s aggravated felony statute distinguishes between theft

and fraud.       Compare 8 U.S.C. § 1101(a)(43)(G) (theft) with id.

§ 1101(a)(43)(M)(i) (fraud). 2

      Under the categorical approach, it is thus possible that

Omargharib’s grand larceny conviction rested on facts amounting

to    fraud,    not   theft.     It   is    undisputed      that   Omargharib’s

conviction does not constitute a fraud offense under the INA. 3

And   under     the   categorical   approach,   the    IJ   was    not    free   to

review    the    record    to   determine    whether     Omargharib’s        grand

larceny conviction was based on theft, not fraud.

      2
        The INA’s theft offense is not tied to any dollar
threshold – a theft of even one penny will suffice as long as
the term of imprisonment is at least one year. In contrast, the
INA’s fraud offense only applies if the loss to the victim
exceeds $10,000.
     3
       The record reflects that the two pool cues were together
valued between $525 and $800 – well below the INA’s $10,000
fraud threshold.    Accordingly, the government does not argue
that Omargharib’s conviction constitutes a fraud offense under
the INA.


                                       5
      The   IJ     agreed   that    Virginia’s     definition        of    larceny   is

broader than the INA’s corresponding “theft offense” crime and

thus that the two crimes are not a categorical match. 4                       But the

IJ proceeded to employ the modified categorical approach, which

the   IJ    held    permits   consideration        of    the    underlying         facts

surrounding      Omargharib’s      conviction.       Applying        that   approach,

the IJ concluded that Omargharib’s larceny conviction rested on

facts amounting to theft, not fraud.               As such, the IJ held that

Omargharib’s conviction constituted a theft offense under the

INA, making Omargharib removable and ineligible for all forms of

discretionary relief. 5

      Omargharib      appealed     the   IJ’s    decision      to    the    BIA.      On

September 6, 2013, the BIA dismissed Omargharib’s appeal and

affirmed the IJ’s decision in all respects.                     Like the IJ, the

BIA   concluded     that    the    modified     categorical        approach   applied

because     Virginia    law   defines     larceny       in   the    disjunctive       to


      4
       At the hearing, the IJ first issued an oral decision
devoid of any legal analysis.     Omargharib appealed the oral
decision to the BIA, which remanded back to the IJ to explain
his reasoning.   The IJ issued a written order on December 26,
2012.
     5
       If Omargharib’s state law conviction had been classified
as a crime under the INA other than an aggravated felony he
could have sought certain discretionary relief from removal,
such as asylum or cancellation of removal.    See Moncrieffe v.
Holder, 133 S. Ct. 1678, 1682 (2013) (citing 8 U.S.C. §§ 1158,
1229b). Because the IJ found he committed an aggravated felony,
however, he was ineligible for these forms of discretionary
relief. See id.


                                         6
include “wrongful or fraudulent” takings.                   J.A. 3.        Omargharib

then    timely     petitioned        this    Court    for   review.         We    have

jurisdiction pursuant to 8 U.S.C. § 1252.



                                            II.

       The central issue before us is whether Omargharib’s 2011

grand    larceny    conviction        in     Virginia    constitutes       a     “theft

offense” as defined by 8 U.S.C. § 1101(a)(43)(G), and thus an

aggravated felony under the INA that is grounds for removal.

       We review the BIA’s determination on this issue de novo.

Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013).                        “Although

we   generally     defer   to   the    BIA's      interpretations     of    the   INA,

where, as here, the BIA construes statutes [and state law] over

which it has no particular expertise, its interpretations are

not entitled to deference.”                 Id.; see also Matter of Chairez-

Castrejon, 26 I. & N. Dec. 349, 353 (BIA 2014) (recognizing that

the BIA is bound by this Court’s “interpretation of divisibility

under Descamps”).      The government has the burden of proving that

Omargharib       committed      an     aggravated       felony   by    clear       and

convincing evidence.         Karimi, 715 F.3d at 566.

       To qualify as an aggravated felony, Omargharib’s conviction

must have been “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment

[is] at least one year.”             8 U.S.C. § 1101(a)(43)(G).            Because we

                                             7
conclude    that    his    crime   of    conviction         did   not   constitute     a

“theft    offense”    under    the      INA,      we   reverse      without    reaching

Omargharib’s alternative argument that his term of imprisonment

was for less than one year.



                                          A.

     In    order     to    determine      whether       a   state    law   conviction

qualifies as an aggravated felony for removal purposes, we use

the categorical approach set forth in Taylor v. United States,

495 U.S. 575 (1990), and recently clarified in Descamps.                             See

United States v. Aparicio-Soria, 740 F.3d 152, 160-61 (4th Cir.

2014) (en banc). 6         Under that approach, we consider only the

elements     of    the     statute       of       conviction      rather      than   the

defendant’s conduct underlying the offense.                        Descamps, 133 S.

Ct. at 2285 (stating that the categorical approach’s “central

feature” is “a focus on the elements, rather than the facts, of

a crime”).        If the state offense has the same elements as the

generic    INA    crime,    then   the    prior        conviction     constitutes    an

     6
       Although Taylor discussed divisibility in the context of a
sentence enhancement under the Armed Career Criminal Act (ACCA),
we have held that it applies equally in the immigration context
to determine whether an alien is removable under the INA as a
result of a prior conviction. See Karimi, 715 F.3d at 567 n.6.
Because Descamps only clarified Taylor’s analysis, we hold it
also applies here (as several other Circuits have done in the
immigration context). Accord Avendano v. Holder, 770 F.3d 731,
734 (8th Cir. 2014); Aguilar-Turcios v. Holder, 740 F.3d 1294,
1299-1300 (9th Cir. 2014).


                                              8
aggravated felony.             See id., 133 S. Ct. at 2283.               But, if the

state       law   crime   “sweeps    more     broadly”     and      criminalizes   more

conduct than the generic federal crime, the prior conviction

cannot count as an aggravated felony.                    Id.       This is true “even

if the defendant actually committed the offense in its generic

form.”       Id. 7

        Like      the   BIA,   we   conclude    that     the       Virginia   crime   of

larceny does not categorically match the INA’s theft offense

crime       because     Virginia    larceny     punishes       a    broader   range   of

conduct than that federal offense.                 Specifically, Virginia law

defines larceny to include both fraud and theft crimes. 8                             See


        7
       The elements-based categorical approach thus avoids the
“daunting . . . practical difficulties and potential unfairness”
of a facts-based approach. Id. at 2289. Among other problems,
a facts-based approach would require sentencing courts “to
expend resources examining (often aged) documents for evidence
that a defendant admitted in a plea colloquy, or a prosecutor
showed at trial, facts that, although unnecessary to the crime
of conviction, satisfy an element of the relevant generic
offense. The meaning of those documents will often be uncertain.
And the statements of fact in them may be downright wrong. A
defendant, after all, often has little incentive to contest
facts that are not elements of the charged offense . . . .”).
Id. at 2289.
        8
       Although Omargharib was convicted of grand larceny under
Va. Code Ann. § 18.2-95, that statute does not define the
elements of larceny in Virginia. Rather, it merely categorizes
larceny of more than $200 as “grand larceny” and defines the
punishment for that crime.   Id.  The statute thus incorporates
Virginia’s common-law recitation of the elements for larceny.
And although Descamps addressed a state crime defined by
statute, we have since held that the Descamps analysis applies
to state crimes that, as here, are defined by common law rather
(Continued)
                                            9
Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (Keenan,

J.) (defining larceny as “the wrongful or fraudulent taking of

another’s property without his permission and with the intent to

permanently     deprive     the    owner       of   that      property”      (emphasis

added)); see also Stokes v. Commonwealth, 641 S.E.2d 780, 782,

784   (Va.   Ct.   App.    2007)    (upholding       a     conviction     for    grand

larceny when the defendant was indicted for defrauding a bank).

Indeed, the Supreme Court of Virginia has repeatedly sustained

larceny   convictions      when    the    property       at    issue   was    obtained

through fraudulently obtained consent. 9                   See, e.g., Skeeter v.

Commonwealth,      232    S.E.2d   756,       758   (Va.      1977);   Bourgeois    v.

Commonwealth, 227 S.E.2d 714, 717 (Va. 1976).

      By contrast, the INA expressly distinguishes between theft

and fraud offenses.         Unlike the INA’s theft offense, which is

not tied to any dollar threshold, the INA’s fraud offense only

applies if the loss to the victim exceeds $10,000.                           Compare 8



than by statute. United States v. Hemingway, 734 F.3d 323, 331–
33 (4th Cir. 2013).
     9
       As these cases demonstrate, a “wrongful” taking means a
taking without the victim’s consent; a “fraudulent” taking means
a taking with the victim’s consent that has been obtained
fraudulently. As set forth below, both wrongful and fraudulent
takings satisfy the “without consent” element of larceny under
Virginia law. In contrast, under the generic federal definition
of “theft,” fraudulent takings do not constitute takings
“without consent.” See Soliman v. Gonzales, 419 F.3d 276, 282-
83 (4th Cir. 2005).        The “without consent” element under
Virginia law is thus significantly broader than the federal
“without consent” element.


                                         10
U.S.C.    § 1101(a)(43)(G)      (theft)       with    id.        § 1101(a)(43)(M)(i)

(fraud).       Consistent with this distinction, we have previously

held    that   a   conviction   for    credit       card    fraud       for   less    than

$10,000 under Virginia law does not amount to a “theft offense”

or “fraud offense” for purposes of the INA.                       Soliman, 419 F.3d

at    282-83   (noting   that   any    other    result          would   transform      all

fraud offenses into theft offenses, thus rendering the $10,000

threshold for fraud offenses “superfluous”).

       In short, Virginia law treats fraud and theft as the same

for larceny purposes, but the INA treats them differently.                              As

such,    Virginia    larceny    “sweeps      more    broadly”       than      the    INA’s

theft offense.        Descamps, 133 S. Ct. at 2283.                      We therefore

conclude that Omargharib’s Virginia larceny conviction does not

constitute an aggravated felony for purposes of the INA under

the categorical approach.



                                        B.

       The government claims a different result is warranted under

the     modified    categorical       approach.            As     Descamps     recently

clarified, the modified categorical approach applies only if a

state     crime     consists    of     “multiple,          alternative        elements”

creating “several different crimes,” some of which would match

the generic federal offense and others that would not.                              133 S.

Ct. at 2284-85.       Under this approach, courts may look beyond the

                                        11
statutory text and consult a limited set of documents in the

record – so-called Shepard documents 10 – to determine which crime

the defendant was convicted of committing.               Id. at 2283-84.       In

this way, the modified approach is a tool for implementing the

categorical approach.      Id. at 2284.

     According to the government, the BIA correctly applied the

modified     categorical   approach      and   so     properly     examined   the

underlying facts of Omargharib’s conviction to determine that he

was convicted of theft, not fraud. 11          For the following reasons,

we disagree.

     After     Descamps,   we   may   apply     the     modified     categorical

approach only if the state crime at issue is divisible.                  Id. at

2283.     A crime is divisible only if it is defined to include

“potential offense elements in the alternative,” thus rendering

“opaque    which   element      played     a   part     in   the     defendant's

conviction.”     Id.   Stated differently, crimes are divisible only

if they “set out elements in the alternative and thus create

     10
         These documents derive their name from the Supreme
Court’s decision in Shepard v. United States, 544 U.S. 13, 16
(2005).     Relevant Shepard documents include the “charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms.” Johnson v. United States,
130 S. Ct. 1265, 1273 (2010).
     11
        Because we find that the modified categorical approach
does not apply, we need not address Omargharib’s alternative
argument that he would also prevail under that approach because
the Shepard documents purportedly do not demonstrate whether he
was convicted of a “theft offense.”


                                      12
multiple versions of the crime.” 12                 United States v. Montes-

Flores, 736 F.3d 357, 365 (4th Cir. 2013).

      The government asserts that the Virginia common-law crime

of    larceny     is     divisible    because      it   purportedly       lists    the

elements of theft and fraud in the alternative.                       See Britt, 667

S.E.2d at 765 (defining “larceny” as a “wrongful or fraudulent

taking” (emphasis added)).            In the government’s view, the use of

the word “or” creates two different versions of the crime of

larceny:     one       involving     wrongful   takings      (theft),       and     one

involving     fraudulent       takings    (fraud).          In   this     view,    the

Virginia larceny would be divisible under Descamps and so the

modified categorical approach would apply.

      As we have previously held, however, use of the word “or”

in the definition of a crime does not automatically render the

crime divisible.         See United States v. Royal, 731 F.3d 333, 341-

42 (4th Cir. 2013); see also Rendon v. Holder, 764 F.3d 1077,

1086-87 (9th Cir. 2014) (reasoning that when a state criminal

law   “is    written     in   the    disjunctive    . . .    ,   that    fact     alone

cannot      end    the    divisibility      inquiry”).           As     these     cases

recognize, a crime is divisible under Descamps only if it is


      12
        An indivisible crime, by contrast, contains the same
elements as the federal crime (or omits an element entirely),
but construes those elements expansively to criminalize a
“broader swath of conduct” than the relevant federal law.
Descamps, 133 S. Ct. at 2281.


                                          13
defined to include multiple alternative elements (thus creating

multiple       versions     of       a     crime),      as      opposed       to     multiple

alternative means (of committing the same crime).                                  Royal, 731

F.3d at 341; United States v. Cabrera-Umanzor, 728 F.3d 347, 353

(4th Cir. 2013); see also Rendon, 764 F.3d at 1086.                                 Elements,

as distinguished from means, are factual circumstances of the

offense the jury must find “unanimously and beyond a reasonable

doubt.”     Royal, 731 F.3d at 341 (quoting Descamps, 133 S. Ct. at

2288).      In    analyzing      this      distinction,         we    must    consider      how

Virginia       courts     generally        instruct        juries      with      respect     to

larceny.       See id.

       Our decision in Royal is particularly instructive.                               In that

case we addressed a crime defined in the alternative – assault

under Maryland law – and held that it was indivisible under

Descamps.        731     F.3d   at       340-341.     Like      here,      the     government

argued that use of the disjunctive “or” in the definition of

assault made the crime divisible, thus warranting application of

the    modified    approach.             Id.   at   341.        But   we     rejected      that

argument, holding that the requirements on either side of the

“or”    were     “merely    alternative         means      of    satisfying         a    single

element” of assault, rather than alternative elements.                                  Id. at

341. This was true because “Maryland juries are not instructed

that they must agree 'unanimously and beyond a reasonable doubt'

on    whether     the    defendant         caused    either       ‘offensive         physical

                                               14
contact’ or ‘physical harm’ to the victim; rather, it is enough

that each juror agree only that one of the two occurred, without

settling on which.”         Id.

     We    likewise       conclude    here     that    Virginia        juries      are    not

instructed to agree “unanimously and beyond a reasonable doubt”

on   whether      defendants       charged      with    larceny         took       property

“wrongfully”      or   “fraudulently.”          Rather,      as    in    Royal,      it    is

enough for a larceny conviction that each juror agrees only that

either    a     “wrongful    or    fraudulent”        taking      occurred,         without

settling on which.           By way of example, the Virginia model jury

instruction for grand larceny requires only a finding that “the

taking    was    against     the   will   and    without     the       consent      of    the

owner.”         2-36   Virginia      Model     Jury    Instructions           –    Criminal

G36.100 (2014).        The model instruction does not tell the jury to

distinguish between wrongful and fraudulent takings – rather, it

only requires a finding of a taking “without the consent of the

owner.”         Id.       Moreover,    Virginia        law   has       long       used    the

“wrongful”       versus     “fraudulent”       distinction        as    two       different

means of satisfying the “without consent” element:

              The common law had substantial difficulty
              with cases in which the thief, intending
              permanently to deprive the possessor of his
              chattel, obtained possession of it with the
              apparent consent of the possessor by use of
              some fraud. Such conduct, called larceny by
              trick, was assimilated into larceny on the
              theory that consent obtained by fraud was
              not true consent and hence that the taker

                                          15
            had trespassed upon the chattel without
            consent of the possessor.      The Virginia
            definition [of larceny], by use of the word
            “fraudulent” has adopted this doctrine and
            often applied it.   This is the theory upon
            which   cashing  a   forged  check  becomes
            larceny.

Ronald J. Bacigal, Larceny and Receiving, in Virginia Practice

Series, Va. Prac. Criminal Offenses & Defenses L3 (2014); see

also John Wesley Bartram, Note, Pleading for Theft Consolidation

in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-

284, 56 Wash. & Lee L. Rev. 249, 260-61 (1999) (noting that

Virginia    incorporates      larceny     by     trick      into    its    common    law

larceny definition through the use of the word “fraudulent”);

Skeeter,    232    S.E.2d   at    758    (holding       that     personal     property

acquired    with    fraudulently        obtained       consent      will   sustain    a

larceny    conviction);     United      States    v.     Argumedo-Perez,       326    F.

App’x 293, 295-98 (5th Cir. 2009) (per curiam) (holding that the

“without     consent”       element      of      Virginia        larceny      includes

“fraudulently      obtained      consent”      and     so    a     Virginia    larceny

conviction does not constitute a generic federal theft crime). 13

Put simply, wrongful or fraudulent takings are alternative means

of committing larceny, not alternative elements.

     13
        Although Virginia law does distinguish certain types of
fraud offenses from general larceny, see Va. Code Ann. §§ 18.2-
111 (proscribing embezzlement), 18.2-178 (proscribing obtaining
money by false pretense), the above authorities clearly
demonstrate that larceny by trick – a fraud-based offense – is
included within Virginia’s general definition of larceny.


                                         16
      In summary, we conclude that larceny in Virginia law is

indivisible as a matter of law.                 That means only the categorical

approach     applies.         And    as    established          above,    Omargharib’s

larceny conviction is not categorically an INA theft offense.

The   government      makes     no    meaningful       argument      to       rebut    this

analysis     other     than    pointing         to   the    disjunctive         “or”    in

Virginia’s    definition        of    larceny. 14          As   such,     it    has     not

satisfied    its     burden    to    establish       removability        by    clear   and

convincing evidence.          See Karimi, 715 F.3d at 566.



                                          III.

      Because Omargharib’s 2011 conviction for grand larceny, in

violation of Va. Code Ann. § 18.2-95, was not a “theft offense”

under the INA, the BIA erred as a matter of law in relying on

that conviction as a basis to order his removal under 8 U.S.C.

      14
        The government’s policy argument that a ruling in
Omargharib’s favor will end deportations for theft and fraud
crimes in Virginia is not well-founded.         Although Virginia
larceny convictions will no longer support an “aggravated
felony” finding under the INA, “escaping aggravated felony
treatment does not mean escaping deportation . . . .     It means
only avoiding mandatory removal.”     Moncrieffe, 133 S. Ct. at
1692.   A Virginia larceny conviction can still render a non-
citizen   deportable  in   some   instances,   though   with  the
opportunity to seek discretionary relief.          See 8 U.S.C.
§§ 1227(a)(2)(A)(i), 1229b.     Thus, “to the extent that our
rejection of the Government’s broad understanding of the scope
of ‘aggravated felony’ may have any practical effect on policing
our Nation’s borders, it is a limited one.” Moncrieffe, 133 S.
Ct. at 1692 (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563,
581 (2010)).


                                           17
§ 1227(a)(2)(A)(iii).        Accordingly,       we   grant   Omargharib’s

petition for review, reverse the BIA’s decision, and remand the

action     with   instructions   to    vacate   Omargharib’s   order   of

removal.

                                        PETITION FOR REVIEW GRANTED;
                             REVERSED AND REMANDED WITH INSTRUCTIONS




                                      18
NIEMEYER, Circuit Judge, concurring:

     I    am     pleased      to      concur      in    Judge      Floyd’s      well-crafted

opinion, especially in light of the existing state of the law

regarding        when    to   apply         the    modified     categorical          approach.

Because     of     the    ever-morphing           analysis      and     the     increasingly

blurred articulation of applicable standards, we are being asked

to   decide,       without       clear        and      workable       standards,      whether

disjunctive        phrases       in     a     criminal      law       define     alternative

elements of a crime or alternative means of committing it.

     More      particularly,          in    this    case,     we    are     called    upon   to

decide whether a wrongful taking and a fraudulent taking are

alternative       elements       defining         two    versions      of     the    crime   of

larceny or alternative means of committing larceny.                              While Judge

Floyd     concludes       that        the     applicable        Virginia       law    defines

alternative        means,     thereby         precluding        use     of     the    modified

categorical approach under current law, I find it especially

difficult to comprehend the distinction.                           Virginia’s law could

just as easily be viewed as prescribing two crimes:                              (1) larceny

by wrongful taking, and (2) larceny by fraudulent taking. ∗



     ∗
       The applicable statute prohibits “simple larceny not from
the person of another of goods and chattels of the value of $200
or more,” Va. Code Ann. § 18.2-95(ii), leaving “larceny” to be
defined by common law.   The Virginia Supreme Court has defined
larceny as “the wrongful or fraudulent taking of another’s
property without his permission and with the intent to
(Continued)
       The Supreme Court’s recent decision in Descamps v. United

States,    133       S.   Ct.    2276       (2013),       which   adopted       the    elements-

versus-means          distinction,           is     the       source     of     much     of    the

confusion.        In Descamps, the Court held that it was error to

apply the modified categorical approach to                             determine whether a

defendant’s prior burglary conviction was for generic burglary

when    the   California             statute       under       which    he     was     convicted

prohibited       a    person         from    entering         specified       locations        with

intent to commit grand or petit larceny or any felony.                                          Id.

at 2282.         In       its    discussion,            the   Court    recognized        that     a

hypothetical statute defining burglary as the illegal “entry of

an automobile as well as a building” would be divisible, thus

justifying       application          of     the    modified      categorical          approach.

Id. at 2284 (quoting Taylor v. United States, 495 U.S. 575, 602

(1990)) (internal quotation marks omitted).                            It similarly noted

that it had previously recognized such divisibility in Nijhawan

v. Holder, 557 U.S. 29 (2009).                          To distinguish those cases and

others, however, the Descamps Court explained that “[a]ll those

decisions     rested            on    the     explicit         premise        that     the     laws

‘contain[ed]              statutory           phrases           that         cover       several

different . . .            crimes,’         not     several       different          methods     of




permanently deprive the owner of that property.”        Britt v.
Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (emphasis added).


                                                   20
committing    one   offense.”          133       S.   Ct.    at    2285   n.2    (quoting

Johnson v. United States, 559 U.S. 133, 144 (2010)).                            While the

Court acknowledged that the California statute left open the

possibility    that    several        means      could      be    employed    to    commit

burglary, some but not all of which would qualify as generic

burglary, it dismissed the concern that “distinguishing between

‘alternative   elements’        and    ‘alternative          means’     is   difficult,”

telling us not “to worry.”            Id.     The Court elaborated:

      Whatever a statute lists (whether elements or means),
      the documents we approved in Taylor and Shepard . . .
      [will] reflect the crime’s elements. So a court need
      not parse state law in the way the dissent suggests:
      When a state law is drafted in the alternative, the
      court merely resorts to the approved documents and
      compares the elements revealed there to those of the
      generic offense.

Id.   Respectfully, this purportedly comforting language hardly

clarifies.    Indeed, in dissent, Justice Alito stated:

      While producing very modest benefits at most, the
      Court’s   holding    will   create    several    serious
      problems. . . .     To determine whether a statute
      contains alternative elements, as opposed to merely
      alternative   means   of  satisfying   an   element,   a
      court . . . will be required to look beyond the text
      of the statute, which may be deceptive. . . .        The
      only way to be sure whether particular items are
      alternative elements or simply alternative means of
      satisfying an element may be to find cases concerning
      the correctness of jury instructions that treat the
      items one way or the other.     And such cases may not
      arise frequently.

Id. at   2301-02      (Alito,    J.,    dissenting).              In   Justice     Alito’s

view, a more practical approach is required.



                                            21
       Similarly,       in     his    separate         concurring         opinion,      Justice

Kennedy       agreed     that       “the    dichotomy          between      divisible          and

indivisible state criminal statutes is not all that clear” and

suggested       that     the        Court’s        decision     would       require           state

legislatures to amend their statutes to meet the Court’s new

divisibility         requirement.           Descamps,        133     S.    Ct.     at    2293-94

(Kennedy,      J.,     concurring).           He     indicated      that    “[t]his       is     an

intrusive demand on the States.”                     Id. at 2294.

       The relevant Virginia conviction for grand larceny in this

case    could    have        been    obtained         either    by       showing       that     the

defendant      wrongfully       took       property,      which       Judge      Floyd        notes

would constitute a generic theft conviction, or by showing that

the defendant fraudulently took property, which he notes would

not constitute generic theft.                   One would think that whether the

defendant was convicted of a wrongful taking or a fraudulent

taking    could       appropriately           be     resolved       by    looking       at     the

documents identified in Shepard v. United States, 544 U.S. 13

(2005).       And this seems to have been the approach taken for

years before Descamps.                Yet Descamps now applies a confusing

layer    to    this     analysis       that        renders     this      area    of     the     law

unsatisfactorily         amorphous         by      limiting        the    use     of     Shepard

documents to distinguish elements but not means.                                Judge Floyd’s

analysis in this case is thus as good as any.



                                                22
       Were the Supreme Court willing to take another look at this

area of law, it might well be persuaded, when focusing on the

goals of the categorical approach, to simply allow lower courts

to   consider     Shepard       documents    in   any   case   where     they   could

assist in determining whether the defendant was convicted of a

generic qualifying crime.              See, e.g., United States v. Gomez,

690 F.3d 194, 204 (4th Cir. 2012) (Niemeyer, J., dissenting)

(“In    determining       what     convictions      qualify    as    a    sentencing

enhancement, courts [should be] authorized to use the modified

categorical approach pragmatically whenever the approach yields

an   answer,     in    circumstances     made     ambivalent    by   an   overbroad

statute,    to        whether    the   prior      conviction    qualifies       as   a

predicate conviction, so long as the use of the approach avoids

‘subsequent evidentiary inquiries in the factual basis for the

earlier conviction’ and ‘collateral trials’” (quoting Shepard,

544 U.S. at 20, 23)).             It is difficult to find any downside to

such a pragmatic approach.              Moreover, such an approach would

yield the same result here because no Shepard documents were

available to show that Omargharib was convicted of a crime that

qualifies as generic theft.




                                            23
