     Case: 14-20033      Document: 00512805161         Page: 1    Date Filed: 10/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20033                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 16, 2014
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

SERGIO ALEJANDRO ALVAREZ-RUIZ, also known as Alejandro Alvarez
Ruiz, also known as Alex Ruiz, also known as Sergio Alejandro Alvarez Ruiz,
also known as Sergio Alejandro Ruiz, also known as Sergio A. Ruiz, also
known as Sergio A. Alvarez, also known as Alejandro Ruiz, also known as
Alejandro Sergio Ruiz, also known as Sergio Alejandro Alvarez,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-460-1


Before CLEMENT, HAYNES, and COSTA, Circuit Judges..
PER CURIAM:*
       Sergio Alejandro Alvarez-Ruiz appeals his sentence for illegal reentry
after deportation. Alvarez-Ruiz was sentenced to a prison term of 30 months.
That sentence represented the low end of the Guidelines range, which included


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20033
an eight-level enhancement based on a finding that the deportation followed
an aggravated felony conviction. That conviction is a 1993 Texas conviction for
theft of an automobile.
       Although he did not challenge the classification of his theft conviction in
the trial court, Alvarez-Ruiz contends on appeal that because the Texas Penal
Code defines “theft” to encompass theft induced by deception, 1 it categorically
falls outside the generic definition of theft, which requires taking property
without consent. 2 See Taylor v. United States, 495 U.S. 575 (1990) (explaining
the categorical approach). Alvarez therefore maintains that he should have
only received a four-level enhancement for “any other felony” under U.S.S.G.
§ 2L1.2(b)(1)(D).
       We review Alvarez-Ruiz’s appeal for plain error because he failed to raise
the issue below. United States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012).
But we need not decide the case on that basis because we recently rejected the
underlying merits of the argument. In United States v. Rodriguez-Salazar, No.
13-40939 (5th Cir. Sept. 30, 2014), we held that the Texas theft statute does
qualify as an aggravated felony under the same Guideline applied in this case.
In response to the argument that the Texas statute does not require consent
because it allows for theft by deception, Rodriguez-Salazar explained 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. The


       1 A person commits “theft” in Texas if “he unlawfully appropriates property with
intent to deprive the owner of property.” Tex. Pen. Code Ann. § 31.03(a). Appropriation is
unlawful if “it is without the owner’s effective consent,” id. § 31.03(b)(1), which includes
consent “induced by deception or coercion.” Id. § 31.01(3)(A).
       2 “[T]he 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.” Burke v. Mukasey,
509 F.3d 695, 696 (5th Cir. 2007) (relying on the Seventh Circuit’s definition of “theft” in
Hernandez v. I.N.S., 246 F.3d 1002, 1009 (7th Cir. 2001)).
                                              2
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                                No. 14-20033
withholding of consent is expressly extended to the time the thief or embezzler
exercises control of the property,” during which time no consent exists when
the victim transferred the property under fraudulent pretenses.
      Rodriguez-Salazar controls this case, so Alvarez-Ruiz’s sentence is
AFFIRMED.




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