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

                                                 FILED
                                                                             May 8, 2009

                                       No. 08-10132                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JOSE JUAN ARGUMEDO-PEREZ,
also known as Carlos Alberto Guerra-Juarez

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:07-CR-59


Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Jose Juan Argumedo-Perez pled guilty to remaining in the United States
illegally in violation of 8 U.S.C. § 1326 and was sentenced to 30 months in
prison. He challenges an aggravated felony sentencing enhancement for theft
applied because of a prior conviction in Virginia for grand larceny. Under
Virginia law, however, and the record of conviction, Argumedo-Perez’s conduct
does not necessarily fall within this court’s generic definition of theft. Because


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-10132

this error affected his substantial rights, we VACATE Argumedo-Perez’s
sentence and REMAND this case for resentencing.
                                 I. Background
      Argumedo-Perez pled guilty to being an alien found in the United States
illegally.   See 8 U.S.C. § 1326.       The Sentencing Guidelines state: “If the
defendant previously was deported, or unlawfully remained in the United States,
after . . . a conviction for an aggravated felony, increase by 8 levels.” U.S.S.G.
§ 2L1.2(b)(1)(C). For this subsection, aggravated felony takes the meaning of
8 U.S.C. § 1101(a)(43), which is § 101 of the Immigration and Nationality Act.
U.S.S.G. § 2L1.2 cmt. n.3. This statute, in turn, defines aggravated felony to
include “a theft offense (including receipt of stolen property) . . . for which the
term of imprisonment at [sic] least one year.” 8 U.S.C. § 1101(a)(43)(G).
      Argumedo-Perez has a 1992 conviction in Virginia for grand larceny.
Accordingly, the district court enhanced Argumedo-Perez’s sentence eight levels,
reflecting a finding that this Virginia conviction was for a theft offense.
Argumedo-Perez did not object.
      On appeal, he argues that under Virginia law grand larceny does not meet
this court’s definition of theft offense. That being the case, Appellant contends,
the court should have applied a four-level enhancement, yielding a sentence
range of 15-21 months based on his criminal history, rather than the 24-30
month range that the court used. Whether this alleged sentencing mistake is
“plain error” is the issue on appeal.
                            II. Standard of Review
      Because Argumedo-Perez did not object at sentencing, we review his
sentence for plain error. F ED. R. C RIM. P. 52(b); United States v. Moreno-Florean,
542 F.3d 445, 448 (5th Cir. 2008).        Under plain-error review, relief is not
warranted unless (1) there has been a legal error, (2) the error is plain, i.e. clear
or obvious, and (3) the error affects substantial rights. United States v. Olano,


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507 U.S. 725, 732-37, 113 S. Ct. 1770, 1776-79 (1993); United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005). Further still, a court “should exercise its
discretion to correct plain error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Jones v. United States, 527 U.S.
373, 389, 119 S. Ct. 2090, 2102 (1999) (internal quotation marks omitted).
                                     III. Discussion
       To determine whether Argumedo-Perez’s Virginia grand larceny conviction
qualifies as a theft offense (or any other enumerated offense in the Guidelines),
the court uses a common sense approach to determine if a prior conviction is
categorically an enumerated offense. See United States v. Dentler, 492 F.3d 306,
313 (5th Cir. 2007); United States v. Carbajal-Diaz, 508 F.3d 804, 808-09 (5th
Cir. 2007).1 First, the court considers the statutory definition for the conviction.
Id. at 807 (citing Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990)).
If all methods of violating the statute would fit within the generic definition of
the offense, the conviction qualifies as the enumerated offense, and the inquiry
ceases.    Id.   Otherwise, the court may look to the charging papers, plea
agreement, and the plea colloquy, “only to the extent . . . necessary to the verdict
or plea,” to determine whether the facts of the crime fit within the generic
definition of the offense. Id. at 807–09 (citing Shepard v. United States, 544 U.S.
13, 125 S. Ct. 1254 (2005)); see also United States v. Gomez-Gomez, 547 F.3d 242,
245 n.3 (5th Cir. 2008) (en banc) (citing with approval this approach to
enumerated offenses).
       This court generically defines a “theft offense” as 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

       1
         Our use of the record of conviction is different if analyzing whether the prior
conviction falls within the residual clause for a crime of violence enhancement. Carbajal-Diaz,
508 F.3d at 808 & n.3 (citing U.S.S.G. § 2L1.2 cmt. 1(B)(iii)). Such an enhancement is not at
issue here.

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is less than total or permanent.” Martinez v. Mukasey, 519 F.3d 532, 540 (5th
Cir. 2008) (emphasis in original) (quoting Burke v. Mukasey, 509 F.3d 695, 697
(5th Cir. 2007)). Relevant here, Martinez stressed the distinction between theft
and fraud, stating that obtaining property without consent is a critical element
of theft whereas fraud is accomplished with the victim’s fraudulently obtained,
but voluntary, consent.         Martinez, 519 F.3d at 540–41 (ruling that a theft
offense, 8 U.S.C. § 1101(a)(43)(G), does not include bank fraud, 18 U.S.C. § 1344,
and distinguishing theft from a fraud offense, 8 U.S.C. § 1101(a)(43)(M)).
      Argumedo-Perez’s prior conviction for grand larceny does not fit neatly
into either of these two categories—fraud or theft. He was convicted under
Virginia Code § 18.2-95 for grand larceny.2 That statute does not define larceny,
however. It merely deems larceny under certain circumstances to be grand
larceny and defines the punishment for that crime.
      Instead, Virginia uses a common-law definition of larceny, which its
supreme court defines 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.” Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008)
(emphasis added). Even though this definition contemplates fraud committed
without the victim’s consent, the Virginia Supreme Court has explained that



      2
          Virginia Code § 18.2-95 states:

      Grand larceny defined; how punished.

      Any person who (i) commits larceny from the person of another of money or
      other thing of value of $5 or more, (ii) commits simple larceny not from the
      person of another of goods and chattels of the value of $200 or more, or
      (iii) commits simple larceny not from the person of another of any firearm,
      regardless of the firearm’s value, shall be guilty of grand larceny, punishable by
      imprisonment in a state correctional facility for not less than one nor more than
      twenty years or, in the discretion of the jury or court trying the case without a
      jury, be confined in jail for a period not exceeding twelve months or fined not
      more than $2,500, either or both.

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personal property acquired with fraudulently obtained consent will sustain a
larceny conviction. Skeeter v. Commonwealth, 232 S.E.2d 756, 758 (Va. 1977),
Bourgeois v. Commonwealth, 227 S.E.2d 714, 717 (Va. 1976). Therefore, a
conviction in Virginia for larceny does not fit categorically within this court’s
generic definition of theft, a point which the Government concedes.
      Looking to the record of conviction, the indictment is the only document
included in the appellate record that provides details about Argumedo-Perez’s
offense. It states, in pertinent part, that Argumedo-Perez “did steal personal
property having a value of $200.00 or more, belonging to [name omitted], in
violation of Virginia Code Section 18.2-95.”         Although a common sense
understanding of “steal” would largely, if not completely, overlap with theft,
Virginia courts have sustained convictions for grand larceny where the
defendant was indicted for stealing by fraudulently obtaining another’s property.
Skeeter, 232 S.E.2d at 758; Stokes v. Commonwealth, 641 S.E.2d 780, 782, 784
(Va. App. 2007) (upholding a conviction for grand larceny where the defendant
was indicted for “steal[ing]” by defrauding a bank); see also Riegert v. Common-
wealth, 237 S.E.2d 803, 804, 808 (Va. 1977) (indicted for stealing, defendant’s
conviction for larceny by false pretenses was overturned on unrelated grounds).
      The facts in Skeeter illustrate this proposition. There, the defendant
offered to obtain three color televisions for a police informant at a deep discount.
Skeeter, 232 S.E.2d at 757. The informant provided Skeeter with $200 for the
televisions, which Skeeter turned over to a third-party accomplice. Id. After
waiting to no avail for the accomplice to deliver the TVs, Skeeter insisted that
his accomplice had either duped them or, alternatively, that they, Skeeter and
the informant, would have to meet the accomplice elsewhere. Id. The police
eventually intervened and arrested Skeeter. Id. at 758.
      Skeeter’s indictment alleged that he “did steal” the $200 from the
informant and charged him with grand larceny. Id. Skeeter was convicted and

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argued on appeal that he was not guilty of larceny because the informant
voluntarily parted with his money. Id. The court disagreed, upholding the
conviction and ruling that Skeeter committed larceny “upon the pretence [sic]
of obtaining color television sets for a grossly inadequate price.” Id.
       Nevertheless, the Government argues that Virginia has three separate
theft offenses—grand larceny, larceny by false pretenses, and embezzle-
ment—and that the meaning of each and their use does not overlap.3 Had
Argumedo-Perez committed anything resembling fraud, the Government argues,
he would have been indicted for larceny by false pretenses, and the indictment
would allege an element of deception, which it does not.4                    However, the
Government fails to persuasively distinguish Skeeter and other authorities cited
by Argumedo-Perez where Virginia courts have upheld convictions for grand
larceny on facts that might also satisfy Virginia’s definition of larceny by false
pretenses or the commonly understood definition of fraud.5 See, e.g., Bourgeois
v. Commonwealth, 227 S.E.2d 714, 717 (Va. 1976); Bateman v. Commonwealth,
139 S.E.2d 102, 106 (Va. 1964); Lewis v. Commonwealth, 91 S.E. 174, 175 (Va.
1917)(“It has been repeatedly held by this court that, upon an indictment for



       3
         This contention is obviously wrong regarding embezzlement, VA . CODE ANN . § 18.2-
111, which expressly allows the government to indict for larceny and prove embezzlement. Id.
(“Proof of embezzlement shall be sufficient to sustain the charge of larceny.”)
       4
         The elements of larceny by false pretenses in Virginia are: “(1) an intent to defraud;
(2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud;
(4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is,
the false pretenses to some degree must have induced the owner to part with his property.”
Riegert v. Commonwealth, 237 S.E.2d 803, 807 (Va. 1977). In addition, “both title to and
possession of property must pass from the victim to the defendant (or his nominee).” Baker
v. Commonwealth, 300 S.E. 2d 788, 788 (Va. 1983).
       5
        Previously this court has cited, but without formally adopting, the definition of fraud
from Black’s Law Dictionary, which is, “a knowing misrepresentation of the truth or
concealment of a material fact to induce another to act to his or her detriment.” Omari v.
Gonzales, 419 F.3d 303, 307 (5th Cir. 2005) (citing BLACK ’S LAW DICTIONARY 413 (7TH ED .
1999)).

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larceny, proof that the accused obtained money by false pretenses will sustain
the indictment.”). In other words, in Virginia one may be indicted and convicted
for grand larceny even though one has committed larceny by false pretenses, and
therefore, on the basis of the conviction and the indictment, we simply do not
know what Argumedo-Perez did.
      Because a conviction in Virginia for grand larceny based on an indictment
that alleges “steal[ing]” does not preclude Argumedo-Perez’s having taken
property with the victim’s consent, he did not commit “theft” under this court’s
generic definition. This error was “plain” because this court has distinguished
fraud from theft, and Virginia’s definition of grand larceny makes no such
distinction, covering both theft and fraud.        Although Argumedo-Perez’s
indictment used the word “steal,” Virginia caselaw establishes that indictments
alleging stealing and charging grand larceny can also sustain convictions for
fraud, which in Virginia is larceny by false pretenses.
      We must move to the final parts of the plain error test and consider
whether Argumedo-Perez has proved that this error affected his substantial
rights and whether our failure to correct it would impugn the fairness, integrity
or public reputation of the proceedings. Had the court properly applied the
enhancement for “a conviction for any other felony,” the appropriate sentencing
range would have been 15 to 21 months, see U.S.S.G. §2L1.2(b)(1)(D), rather
than the 24-30 month range on which the court relied. The court sentenced
Argumedo-Perez to 30 months because he “believe[s] this sentence does
adequately address the sentencing guidelines of punishment and deterrence.”
No other remarks in the sentencing transcript provide a basis for concluding
that the sentence did not result from an incorrect application of the eight level
enhancement. There is thus a reasonable probability that but for the erroneous
enhancement the district court would have given Argumedo-Perez a lower
sentence. United States v. Price, 516 F.3d 285, 289 (5th Cir. 2008). Accordingly,


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the erroneous sentencing enhancement affected Argumedo-Perez’s substantial
rights.
      With respect to the final discretionary call, we are not insensitive to the
analysis and concerns recently expressed by the court in United States v. Ellis,
__ F.3d ___, No. 07-11276, 2009 WL 783262 (5th Cir. Mar. 26, 2009), which in
that case led to a rejection of a sentencing-related plain error appeal. Ellis
explained at length why the alleged error in calculating a sentence range based
upon a defendant’s previous North Carolina conviction for attempted common
law robbery might not constitute error at all. Indeed, many paragraphs of Fifth
Circuit review were necessary to speculate how that state conviction fit within
the generic, contemporary definition of federally enumerated offenses, the
talisman for our review of sentencing enhancements under U.S.S.G §§ 2L1.2 and
4B1.1. Ellis ultimately rejects exercising discretion to order resentencing based
on the lack of certainty in finding “plain” error there, plus the “powerful
institutional interests” in preserving the respective roles of trial and appellate
courts.
      Ellis affords a sensible caution to our conflating plain and preserved error
standards of review. On careful reflection, however, we conclude that the error
in characterizing appellant’s instant Virginia conviction as theft under the
guidelines was “plain” because Virginia’s common law substantially overlaps
fraud and theft crimes. We exercise our discretion to correct the error in order
to align this sentence with the proper guidelines methodology and to attempt to
fulfill their purpose of producing consistent criminal sentencing.
                                IV. Conclusion
      For the foregoing reasons Argumedo-Perez’s sentence is VACATED and
REMANDED for RESENTENCING.




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