                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1009


FRANCISCO ALBERTO MENA,

                Petitioner,

     v.

LORETTA E. LYNCH, Attorney General,

                Respondent.


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


Argued:   January 27, 2016                  Decided:   April 27, 2016


Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Petition for Review granted by published opinion.   Judge Shedd
wrote the opinion in which Judge Agee joined.   Judge Wilkinson
wrote a dissenting opinion.


ARGUED:   David  Kendall   Roberts,  O'MELVENY  &   MYERS  LLP,
Washington, D.C., for Petitioner.   Benjamin Mark Moss, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Joyce R. Branda, Acting Assistant Attorney General,
Civil Division, Douglas E. Ginsburg, Assistant Director, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
SHEDD, Circuit Judge:

      Francisco    Mena     petitions       for   review       of     the   Board    of

Immigration      Appeals’    (“BIA”)        decision      finding       him   to     be

ineligible for cancellation of removal under the Immigration and

Nationality Act (“INA”) because he is an aggravated felon. For

the following reasons, we grant the petition.

                                        I

      Mena is a native and citizen of the Dominican Republic who

was   admitted    to   the    United    States       as    a    lawful      permanent

resident.   An    immigration   judge       (“IJ”)     ordered      Mena’s    removal

based on his two convictions of crimes involving moral turpitude

not arising out of the same criminal scheme. See 8 U.S.C. §

1227(a)(2)(A)(ii). Mena did not appeal the removal order to the

BIA, and he does not contest it in his petition for review.

      During     his   immigration      proceedings,           Mena    applied      for

cancellation of removal, a form of discretionary relief that is

available to certain aliens who have not been convicted of an

“aggravated felony.” See 8 U.S.C. § 1229b(a)(3). For purposes of

the INA, an aggravated felony is, among other things, a “theft

offense (including receipt of stolen property) . . . for which

the term of imprisonment [is] at least one year.” 8 U.S.C. §

1101(a)(43)(G).




                                        2
     Mena has a prior conviction for violating 18 U.S.C. § 659,

which    creates    four   offenses,       each       set      forth    in       a     separate

paragraph.     Pertinent        here,   the      first         paragraph         of     §    659

proscribes    the     illegal     taking       by    embezzlement           or       theft   of

certain     property     that    has    moved        in     interstate       or        foreign

commerce. The second paragraph proscribes the purchase, receipt,

or possession of such property “knowing the same to have been

embezzled    or     stolen.”     Mena    was        convicted        under       the    second

paragraph and was sentenced to a 60-month imprisonment term.

     The IJ concluded that Mena is an aggravated felon based on

his finding that the § 659 conviction falls within the scope of

§   1101(a)(43)(G).        Accordingly,         the       IJ    pretermitted             Mena’s

cancellation of removal application. Thereafter, in a single-

member panel decision, the BIA dismissed Mena’s appeal of the

IJ’s order. 1 As we discuss below, the BIA primarily based its

decision on its view that § 1101(a)(43)(G) contains two separate

types of offenses that qualify as an INA “aggravated felony”: a

“theft    offense,”      which    is    the     base      offense      listed          in    the

statutory section, and “receipt of stolen property,” which is

contained    in    the   parenthetical         appended         to    the    term       “theft

offense.”


     1Consistentwith the BIA’s analysis, the parties agree that
§ 659 is divisible and that Mena was convicted under the second
paragraph.


                                           3
                                             II

       Because the BIA issued its own opinion without adopting the

IJ’s   reasoning,          we    review   only    the     BIA   decision.       Hernandez-

Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). We review de

novo     the    BIA’s       determination         that    an    offense        is   an    INA

aggravated felony, Omargharib v. Holder, 775 F.3d 192, 196 (4th

Cir.    2014),       affording       “appropriate        deference”       to    the      BIA’s

statutory interpretation of the INA, Espinal-Andrades v. Holder,

777 F.3d 163, 166 (4th Cir. 2015).

                                             A.

       When     the     Government        alleges        that   a    prior      conviction

qualifies      as     an    INA    aggravated      felony,      we    must     employ     the

“categorical        approach”       to    determine       whether     the      offense     is

comparable to an offense listed in the INA. Omargharib, 775 F.3d

at 196. “Under that approach, we consider only the elements of

the statute of conviction rather than the defendant’s conduct

underlying the offense.” Id. The prior conviction constitutes an

aggravated felony if it has the same elements as the generic INA

crime. Id. However, if the statute of conviction “sweeps more

broadly” and criminalizes more conduct than the generic federal

crime,    the       prior       conviction   cannot       count      as   an    aggravated

felony. Id. This is so even if the defendant actually committed

the offense in its generic form. Id.



                                             4
       Because we examine what the prior conviction necessarily

involved, not the facts underlying the case, we must presume

that    the      prior     conviction       rested     upon    nothing      more        than   the

least of the acts criminalized and then determine whether even

those       acts    are    encompassed        by     the    generic    federal          offense.

Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). Our focus on

the minimum conduct criminalized by the statute of conviction is

not    an    invitation       to    apply    “legal        imagination”       to    the    prior

offense; rather, there must be “a realistic probability” that

the government would apply its statute to conduct that falls

outside the generic definition of a crime. Id. at 1684-85.

                                                B.

       Applying the categorical approach, we addressed the meaning

of    the    §     1101(a)(43)(G)        term      “theft     offense”      in     Soliman      v.

Gonzales, 419 F.3d 276 (4th Cir. 2005). In that case, the BIA

held    that       the    alien’s    Virginia        credit    card    fraud        conviction

constituted an INA theft offense and, therefore an aggravated

felony, based on its determination that a conviction for fraud

may     also       constitute       “theft”     for        purposes    of     the       INA.    We

disagreed. We first noted that the “plain text of § 1101(a)(43)

shows that Congress specifically distinguished fraud from theft,

and     that       it     meant    for    the        two    offenses     to        be    treated




                                                5
differently.” Id. at 282. 2 We then observed that “[w]hen a theft

offense has occurred, property has been obtained from its owner

‘without       consent;’”     but     “in     a    fraud   scheme,     the     owner   has

voluntarily          ‘surrendered’           his    property,        because     of     an

‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a

false representation to his injury.” Id. We thus explained that

the “key and controlling distinction between these two crimes is

. . . the ‘consent’ element — theft occurs without consent,

while        fraud   occurs    with     consent       that   has     been     unlawfully

obtained.” Id. Accordingly, we held that “a taking of property

‘without consent’ is an essential element” of a § 1101(a)(43)(G)

theft    offense.      Id.    at    283. 3    Consequently,     we    found     that   the

alien’s credit card fraud offense was not an INA “theft offense”

– i.e., an “aggravated felony.”

        We     reiterated     this     holding       in    Omargharib.        There,   we

considered whether the BIA properly concluded that the alien’s



        2In
         addition to the § 1101(a)(43)(G) “theft offense,” an
offense that “involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000” is also an aggravated felony.
See 8 U.S.C. § 1101(a)(43)(M)(i).
        3Consistent
                  with Soliman, the BIA now defines “theft
offense” for purposes of § 1101(a)(43)(G) as “the taking of, or
exercise of control over, property without consent whenever
there is criminal intent to deprive the owner of the rights and
benefits of ownership, even if such deprivation is less than
total or permanent.” In re Garcia-Madruga, 24 I. & N. Dec. 436,
440-41 (BIA 2008) (emphasis added).



                                               6
Virginia larceny conviction was an INA theft offense. Finding

that the BIA erred, we explained that “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.”           775     F.3d   at    197

(citation omitted). We therefore held that a Virginia larceny

conviction       “does     not      constitute      an     aggravated          felony     for

purposes of the INA under the categorical approach.” Id.

                                             C.

       Mena’s challenge to the BIA’s decision is primarily based

on our holding in Soliman. Mena argues that a person can be

convicted under the second paragraph of § 659 for receipt of

embezzled property, and the crime of embezzlement necessarily

involves     a    taking       of    property       with       the     owner’s       consent.

Therefore,       according     to    Mena,    because          “a    taking    of    property

‘without consent’ is an essential element” of a § 1101(a)(43)(G)

theft offense, Soliman, 419 F.3d at 283, a conviction under the

second    paragraph      of    § 659    is    not    a     §    1101(a)(43)(G)          “theft

offense” under the categorical approach.

       The BIA rightly did not dispute this interpretation of the

second paragraph of § 659 or the crime of embezzlement, see J.A.

5, because the second paragraph of § 659 plainly criminalizes

the receipt of certain embezzled property. Moreover, in what we

have described as the “the classic definition,” United States v.

                                             7
Smith, 373 F.3d 561, 565 (4th Cir. 2004), the Supreme Court long

ago explained that embezzlement “is the fraudulent appropriation

of property by a person to whom such property has been intrusted

[sic],   or   into   whose   hands   it   has    lawfully   come,”   Moore     v.

United States, 160 U.S. 268, 269 (1895); see also United States

v. Stockton, 788 F.2d 210, 216 (4th Cir. 1986) (explaining that

the crime of embezzlement requires that “the embezzled property

must have been in the lawful possession of the defendant at the

time of its appropriation”). This classic definition applies to

the term as it is used in § 659. See, e.g., United States v.

Waronek, 582 F.2d 1158, 1161 (7th Cir. 1978) (explaining in the

context of a § 659 embezzlement conviction that although larceny

“involves an unlawful trespass to the possessory interest of the

owner in the property,” where “the taker has been entrusted with

possession of the property, the taking is more aptly described

as embezzlement”); see generally Boone v. United States, 235

F.2d 939, 941 (4th Cir. 1956) (explaining that the § 659 “crime

of   receiving   include[s]    a   receipt      of   property   founded   on   an

antecedent capture of it through fraud and deception”).

      Despite its acceptance of Mena’s characterization of § 659

and the crime of embezzlement, the BIA applied the categorical

approach and concluded that Mena’s conviction under the second

paragraph of § 659 categorically falls within § 1101(a)(43)(G).

The key to the BIA’s decision is its view that § 1101(a)(43)(G)

                                      8
creates two “‘distinct and separate offenses’” – “theft offense”

(the    base    offense)    and    “receipt    of   stolen    property”    (the

appended parenthetical offense) – which have “different generic

definitions composed of different elements.” J.A. 6 (quoting In

re Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2014)). As the

BIA explained, this case involves “receipt of stolen property,”

a term it has interpreted “to include the category of offenses

involving knowing receipt, possession, or retention of property

from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N.

Dec. 1381, 1391 (BIA 2000)). Given the purported distinction

between the two § 1101(a)(43)(G) offenses, the BIA reasoned that

it “need not establish the elements of a ‘theft’ offense to

demonstrate that a conviction for ‘receipt of stolen property’

qualifies as an aggravated felony” under § 1101(a)(43)(G). J.A.

6. For this reason, the BIA found our holding in Soliman – that

a “theft offense” requires a nonconsensual taking of property

from its owner - to be inapplicable.

       The BIA supported its decision by pointing to its prior

opinion in Cardiel-Guerrero, where it observed that receipt of

extorted       property    falls   within     the   generic   definition    of

“receipt of stolen property” under § 1101(a)(43)(G). The BIA

noted that in Cardiel-Guerrero, it “reasoned that although the

owner may have ‘consented in some aberrant sense’ during the

initial taking, ‘it can hardly be argued that the victim of

                                       9
extortion has also consented to having his property ‘fenced,’

concealed, or otherwise withheld from him against his will by

third parties.’” J.A. 6 (quoting Cardiel-Guerrero, 25 I. & N.

Dec. at 23-24). Analogizing extortion with embezzlement, the BIA

explained that “although the initial taking under the second

paragraph of 18 U.S.C. § 659 may have involved embezzlement or

fraud, [Mena] cannot argue that an owner also consented to a

third party buying or possessing his or her embezzled property.”

J.A. 6.

      Additionally, the BIA stated that “a survey of State theft

statutes supports [its] view that receipt of embezzled property

is   included   in   the   generic   definition   of   a   ‘theft   offense

(including receipt of stolen property)’” under § 1101(a)(43)(G).

J.A. 6. The BIA noted that when § 1101(a)(43)(G) was added to

the INA, most states had adopted the Model Penal Code’s approach

of consolidating the various common law offenses of larceny,

embezzlement and false pretenses, receiving stolen property, and

extortion into a unitary “theft” offense. J.A. 6. The BIA also

found support for its holding in the fact that § 659 requires

proof that the defendant received the property knowing that it

was embezzled or stolen, and with the intent to deprive the

owner of the rights or benefits of the property. J.A. 6.

                                     D.



                                     10
     Common   sense    suggests     that     knowingly      receiving     either

stolen or embezzled property – i.e., the offense set forth in

the second paragraph of § 659 - is a form of theft. See, e.g.,

United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979)

(noting that the purpose of § 659 “is to protect goods moving in

interstate commerce from theft”). However, we are not writing on

a clean slate, and we may not simply rest our decision on some

concept of common sense. Instead, we are obliged to apply the

categorical approach, and in doing so we are guided by circuit

precedent. Applying the categorical approach, we believe that

Soliman, combined with a straightforward reading of §§ 659 and

1101(a)(43)(G), dictates the result in Mena’s favor.

     As noted, Soliman establishes that “a taking of property

‘without consent’ is an essential element” of a § 1101(a)(43)(G)

“theft   offense.”    419   F.3d   at    283.   Moreover,    the   text    of   §

1101(a)(43)(G) provides that the term “theft offense” includes

the crime of “receipt of stolen property.” 4 The straightforward




     4The  pertinent text of § 1101(a)(43)(G) actually reads:
“theft offense (including receipt of stolen property).” The key
word in this provision is “including,” which most naturally
means that the term that follows is a part of the term that
precedes “including.” See, e.g., P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 77 n.7 (1979) (holding that the use of the word
“including” in the definitional provision of the federal statute
being reviewed there indicates an element that is “part of the
larger group” and rejecting the argument that “including” means
“and” or “as well as”); see also Universal Maritime Serv. Corp.
(Continued)
                                        11
conclusion that follows is that a receipt crime – being an INA

“theft offense” – requires a taking of property without consent.

       By definition, embezzlement, like the closely related crime

of     fraud, 5   involves       property         that     came     into     the   initial

wrongdoer’s hands with the owner’s consent. This is an immutable

fact     regardless       of     whether      the        property      is    subsequently

transferred to, and received by, a third party. Accordingly, a

conviction for receipt of embezzled property under § 659 does

not require proof that the owner did not consent to the taking

of the property. Lacking the “without consent” element, receipt

of embezzled property under § 659 does not fall within the §

1101(a)(43)(G) theft offense definition. Consequently, the crime

set forth in the second paragraph of § 659 “sweeps more broadly”

than the generic § 1101(a)(43)(G) theft offense, and it is not

an INA aggravated felony under the categorical approach.

       In     reaching    this    decision,         we    accept       the   government’s

unremarkable observation – premised on the BNA’s prior Bahta

decision      -   that    the   parenthetical        clause       of     § 1101(a)(43)(G)



v. Wright,        155    F.3d   311,   319    n.10       (4th     Cir.    1998)    (similar
holding).
       5The
          Supreme Court has explained that “the word ‘embezzled’
itself implies fraudulent conduct on the part of the person
receiving the money,” and “it is impossible for a person to
embezzle the money of another without committing a fraud upon
him.” Grin v. Shine, 187 U.S. 181, 189 (1902).



                                             12
clarifies that the term “theft” is not limited to require proof

that   the    offender     was     involved         in   the   actual    taking         of     the

property. However, that observation simply does not support the

BIA’s conclusion that the “without consent” element of a “theft

offense”      is    inapplicable         to     a    “receipt         offense.”         Section

1101(a)(43)(G) plainly applies to both “taking” and “receiving”

offenses. Nonetheless, as we have explained, a “receipt offense”

is one type of “theft offense” for purposes of the INA, and

Soliman      establishes     that        a    necessary        element       of     a    “theft

offense” is a taking from the owner without consent.

       We also find the BIA’s analogy between embezzlement and

extortion     misplaced.      In    Cardiel-Guerrero,             the   BIA       noted       that

although     “consent”      of     the       property     owner    is    an       element      of

extortion,        “the   concept     of       ‘consent’        used     in    the       law     of

extortion     is    highly       unconventional          and    does     not      connote       a

voluntary or elective conferral of property.” 25 I. & N. Dec. at

20. Indeed, as the Second Circuit has observed, the “consent”

element      in    an    extortion       case       presents      the    victim         with    a

“Hobson’s choice” and “is the razor’s edge that distinguishes

extortion from robbery.” United States v. Zhou, 428 F.3d 361,

371 (2nd Cir. 2005). This type of “consent” stands in marked

contrast to the lawful consent underlying an embezzlement crime.

See generally Tredwell v. United States, 266 F. 350, 352 (4th

Cir. 1920) (explaining that “[w]here one comes lawfully into the

                                              13
possession of property, and afterwards and while it is in his

possession forms and carries out the purpose of appropriating it

to   his    own   use,       the    crime     thus     committed       is      the    crime    of

embezzlement;          but    if,      at    the     time     of     getting         possession

lawfully, the one to whom property is intrusted [sic] has the

intention of appropriating it to his own use, the crime thus

committed is the crime of larceny”).

      Additionally, we find the BIA’s reliance on its survey of

State      statutes     and     the       Model     Penal    Code    to     be    unavailing.

Although the BIA pointed to the States’ “trend” to consolidate

various common law offenses into a unitary “theft” offense, that

trend involves, among other things, certain fraud offenses. Of

course,      we   implicitly          rejected        that    trend       in     Soliman      and

Omargharib        by         holding        that      fraud         offenses         are      not

§ 1101(a)(43)(G) “theft offenses.”

      Finally, we note the anomalous result that the BIA decision

would      create. 6    Under       the     BIA’s    reasoning,       an       alien    who    is


      6Dependingon the circumstances of a given case, we accord
various levels of deference to the BIA’s interpretation of the
INA. Here, the parties disagree regarding the applicable level
of deference we should apply. Our decision is based on the plain
language of § 1101(a)(43)(G), as interpreted by Soliman, so we
owe no deference to the BIA’s statutory interpretation. See
Espinal-Andrades, 777 F.3d at 166-67. However, even if the
statute is ambiguous, “[w]e need not wade into the debate over
the proper degree of deference, for it makes no difference in
this case.” Oxygene v. Lynch, 813 F.3d 541, 548 n.3 (4th Cir.
2016).


                                               14
convicted under § 659 for embezzling up to $10,000 of property

would   not    be    an     aggravated         felon     under    §    1101(a)(43),       yet

another alien who is convicted under § 659 (and sentenced to a

year of imprisonment) for knowingly receiving a fraction of the

embezzled property would be. This result “makes scant sense” and

cannot stand. Mellouli v. Lynch, 135 S.Ct. 1980, 1989 (2015)

(rejecting BIA interpretation of the INA that treated “minor

paraphernalia possession offenses . . . more harshly than drug

possession     and      distribution       offenses”);          see    also    Castillo    v.

Holder, 776 F.3d 262, 270 n.6 (4th Cir. 2015) (in rejecting the

BIA’s decision that the Virginia crime of unauthorized use of a

vehicle       is     categorically             a       “theft    offense”        under      §

1101(a)(43)(G), we noted that “under the BIA’s decision . . . an

anomalous and unreasonable result would occur if a conviction of

the   ‘lesser’      crime    of    unauthorized          use    formed    the    basis    for

removability under [§ 1101(a)(43)(G)], while the greater crime

of larceny would not”).

                                              III

      In   short,       based     on    our    application        of     the    categorical

approach, we hold that a conviction under the second paragraph

of § 659 is not a “theft offense (including receipt of stolen

property)” under § 1101(a)(43)(G). The BIA therefore erred in

finding Mena to be an aggravated felon who is ineligible for

cancellation       of   removal        under       §   1229b(a)(3).      Accordingly,      we

                                               15
grant the petition for review and remand for further proceedings

consistent with this opinion. 7

                                       PETITION FOR REVIEW GRANTED




     7Our determination that Mena’s § 659 conviction is not
categorically an INA aggravated felony does not alter the basic
nature of his offense. Mena may not have committed an INA “theft
offense” as a technical matter, but he did commit an offense
involving his knowing receipt of illegally obtained property.
The government apparently feels strongly that Mena should not
receive cancellation of removal relief, asserting that if (as we
are ordering) the case is remanded, the BIA should be free to
consider whether Mena is ineligible for cancellation of removal
on another basis. Brief for Respondent, at 44. Mena disputes
this assertion, but we decline to enter the fray. We note,
however, that regardless of whether Mena is ultimately deemed to
be eligible for cancellation of removal, the Attorney General’s
decision whether to grant cancellation relief is discretionary
and generally not subject to judicial review. See 8 U.S.C. §
1252(a)(2)(B)(i).

     We do not know if the issue of discretionary relief will
eventually be considered in this case, and we express no opinion
about that. However, as a general observation, it seems that a
great deal of the effort and resources expended in appeals of
cases of this type could potentially be preserved if the IJ or
BIA proceeded beyond the eligibility determination and ruled
alternatively on the discretionary cancellation decision. See,
e.g., Ennis v. Att’y Gen. of the U.S., 617 Fed. Appx. 161, 163-
64 (3rd Cir. 2015) (“We . . . note that we would not reach the
aggravated felony issue even if Ennis had exhausted it because
the IJ denied cancellation of removal on the independently
dispositive ground that cancellation was not warranted in the
exercise of discretion. . . . [W]e generally lack jurisdiction
to review the discretionary denial of cancellation in any
event.”).



                                  16
WILKINSON, Circuit Judge, dissenting:

     Embezzlement is a theft. Ask the person seated next to you.

He or she will tell you that it is.

     The     majority    says     not.    Come     again?     The      majority       says

embezzlement is not a form of theft.

     It is from that proposition that I respectfully dissent.

                                         * * *

     The     Immigration       and   Nationality      Act     declares         that    any

“theft offense (including receipt of stolen property) . . . for

which the term of imprisonment is at least one year” is an

aggravated     felony.     8     U.S.C.      § 1101(a)(43)(G).           This       broad,

generic language embraces a variety of offenses, and the plain

meaning of “theft” makes clear that Mena’s conviction under 18

U.S.C. § 659 is a theft offense.

     The   majority      believes     that     embezzlement       is     not    a     theft

because the owner of the funds voluntarily entrusts them to the

embezzler. That totally ignores the fact that the whole purpose

of the entrustment is for an honest stewardship of the funds.

The betrayal of that purpose through embezzlement is purely and

simply theft.

     Theft    is   defined     as    “[b]roadly,     any    act     or   instance       of

stealing, including larceny, burglary, embezzlement, and false

pretenses.”     Theft,     Black’s       Law     Dictionary    (10th       ed.        2014)

(emphasis added). In common parlance, theft means “the action or


                                          17
crime of stealing.” Concise Oxford English Dictionary 1494 (11th

ed.    2004).    At    the    core       of    these       definitions       is    a     singular

concept:       theft    happens         when    property         is    taken      without       any

semblance of consent.

       The parenthetical “(including receipt of stolen property)”

reinforces § 1101(a)(43)(G)’s broad meaning. “Stolen property”

means “goods acquired by,” among other means, “theft.” Stolen

Property,       Black’s      Law        Dictionary          (10th      ed.    2014).      Stolen

property thus includes property taken through any of the common-

law    means    that     make      up    theft.      This     is      consistent       with     the

definition       of    the    verb       “steal”:          “[t]o    take     (something)         by

larceny, embezzlement, or false pretenses.” Steal, Black’s Law

Dictionary       (10th       ed.     2014)       (emphasis          added).       “Including,”

furthermore, means “‘contain[ing]’ or ‘compris[ing] [] part of a

whole.’” Chickasaw           Nation       v.    United       States,     534      U.S.    84,    89

(2001)    (citing      Webster’s         Ninth       New    Collegiate       Dictionary         609

(1985)). Its use in conjunction with parentheses “emphasizes the

fact     that    that     which         is     within       is     meant     simply       to     be

illustrative . . . a circumstance underscored by the lack of any

suggestion that Congress intended the illustrative list to be

complete.” Id. at 89. Far from narrowing the meaning of “theft

offense,” the parenthetical thus suggests that offenses similar

to    “receipt    of    stolen      property”         (i.e.,        receipt    of      embezzled

property) are covered by the statute.


                                                18
      This plain meaning of theft is underscored by the fact that

the INA uses the term “theft offense” in a generic sense. Its

meaning therefore “roughly correspond[s] to the definitions” of

theft found “in a majority of the States’ criminal codes.” See

Taylor v. United States, 495 U.S. 575, 589 (1990). Those codes,

meanwhile, had by the time of § 1101(a)(43)(G)’s 1994 enactment

largely adopted the Model Penal Code’s policy of consolidating

various     common     law    offenses,            including        larceny,     extortion,

blackmail, and embezzlement, into unitary theft offenses. J.A.

6, citing In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 21 (BIA

2009);    see     also       Model       Penal      Code       §    223.1(1)      (“Conduct

denominated       theft      in      this     Article          constitutes       a   single

offense.”). A generic definition of theft accordingly includes

embezzlement.

      The majority explicitly abjures common sense, i.e. plain

meaning, in its approach to this problem. Maj. Op. at 11. But

the   categorical        approach        is   supposed         to    “serve[]    practical

purposes.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013).

Common    sense   (or     plain      meaning,       or     practicality),       as   we   all

seemingly    acknowledge,          would      lead       us   to    reject     petitioner’s

position.     Petitioner          Mena      was     convicted        under     the   second

paragraph    of   18     U.S.C.      § 659,        which      criminalizes      receipt    of

stolen or embezzled property. He argues that he nonetheless has

not committed a theft offense. But it is wrong to think that


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§ 659’s coverage of receipt of embezzled property somehow takes

it beyond the realm of theft.

       Like        theft,     embezzlement         is      also       stealing.           And

“distinctions        between”      different      types   of     stealing        “serve    no

useful purpose in the criminal law but are useless handicaps

from the standpoint of the administration of criminal justice.”

Rollin M. Perkins & Ronald Boyce, Criminal Law, 389-90 (3d ed.

1982).      Like    a   victim     of    traditional       larceny,        a    victim    of

embezzlement does not “consent” to the loss of his property. Nor

does    a     victim    of    embezzlement,       like    a     victim     of        larceny,

“consent” to the involvement of a third party when his property

is transferred. Both victims consider their property stolen.

       Petitioner       rejects     this     view,      relying       on   our        earlier

decision in Soliman v. Gonzales. In that case, we held that an

INA “theft offense” must involve a taking without consent. 419

F.3d 276, 283 (4th Cir. 2005). But even if it were not already

silly    to    suggest      that   one   “consents”       to    the   embezzlement        of

one’s property, see Pet’r’s Br. at 18, Soliman had no occasion

to consider the problem before us now. The predicate offense in

Soliman was credit card fraud. 419 F.3d at 278. The court thus

did not consider how to evaluate receipt offenses under the INA.

And     the    plain     meaning        of   “(including        receipt         of    stolen

property),”        11   U.S.C.     § 1101(a)(43)(G),           requires        that   Mena’s

conviction be treated as a theft offense.


                                             20
    The majority views this as an unfair result. It contends

that embezzlement (as opposed to receipt of embezzled property)

is not itself an aggravated felony unless the amount embezzled

exceeds $10,000. Maj. Op. at 14-15. Making receipt of embezzled

property an aggravated felony would thus risk, in the majority’s

view, treating the lesser criminal more harshly than the greater

one. But this reasoning assumes that the original embezzler is

not also guilty of a theft offense – an incorrect assumption.

And even if the majority’s understanding were correct, several

considerations          limit    its    relevance.      First,    fairness       in   the

treatment of the family of embezzlers is more properly addressed

during    their    individual          sentencings.     Second,      § 1101(a)(43)(G)

contains a safeguard. The term of imprisonment for any predicate

theft offense must be “at least one year.” Mena, for example,

was sentenced to sixty months of incarceration. Minor receipt of

embezzled property offenses thus still avoid aggravated-felony

status.    Finally,       if     the    point    of    the   categorical      approach,

properly adopted by the majority, is to compare the elements of

predicate      against     generic       INA    offenses,     then     the   majority’s

concerns are not only misplaced but irrelevant. The capacious

terms     of   § 1101(a)(43)(G)           embrace      Mena’s     18    U.S.C.    § 659

conviction,       and    we     are    obliged    to    respect   that       legislative

choice.




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    This case is much less complicated than the majority makes

it. To repeat: embezzlement is a theft. Just ask the person two

rows down.




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