                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                      November 8, 2017
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                  No. 16-6259
                                           (D.C. No. 5:16-CR-00065-R-1)
JOSE ANGEL LUGO-TOVAR,                             (W.D. Okla.)

       Defendant - Appellant.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                 _________________________________

      Mr. Jose Angel Lugo-Tovar is a criminal defendant who appeals his

sentence. But his counsel has determined that all potential appellate

arguments would be frivolous and moved to withdraw under Anders v.

California, 386 U.S. 738 (1967). In Anders, the Supreme Court allowed

defense counsel to request permission to withdraw after determining that

any appeal would be frivolous. 386 U.S. at 744. We agree with defense

*
      The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
counsel that all potential grounds for appeal would be frivolous. We

therefore dismiss the appeal and grant defense counsel’s motion to

withdraw.

I.     Background

       Mr. Lugo-Tovar was convicted of illegal reentry. 8 U.S.C. § 1326(a).

The district court thus considered what sentence to impose with the input

of a probation officer. The probation officer prepared a presentence report,

which arrived at a guideline range of 33 to 41 months. No one objected to

the report, and the district court agreed with the probation officer’s

calculation of the guideline range. This guideline range was based in part

on an eight-level enhancement for a prior conviction of an aggravated

felony. The offense underlying that conviction was receipt of stolen

property under Oklahoma law (Okla. Stat. tit. 21 § 1713). Mr. Lugo-Tovar

challenges the sentence on procedural grounds.

II.    Standard of Review

       He did not object in district court to any procedural irregularities in

the determination of the sentence. We therefore review Mr. Lugo-Tovar’s

procedural challenges under the plain-error standard. See United States v.

Sharp, 749 F.3d 1267, 1291 (10th Cir. 2014).

III.   The Arguments Involving Johnson and Mathis

       In his pro se response to the Anders brief, Mr. Lugo-Tovar seeks to

preserve his right to challenge characterization of his past offense as an

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aggravated felony, relying on Johnson v. United States, ___ U.S. ___, 135 S.

Ct. 2551 (2015), and Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243

(2016). Mr. Lugo-Tovar does not articulate an argument for why he

believes these opinions could alter his sentence, and we cannot act as

advocates for any party. See Garrett v. Selby Connor Maddux & Janer, 425

F.3d 836, 840 (10th Cir. 2005) (holding that “the court cannot take on the

responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record”).

      Without any direction from Mr. Lugo-Tovar, we do not see how

Johnson or Mathis could affect the sentence. Johnson addressed a

vagueness challenge, and Mathis addressed the distinction between the

means and elements for a given crime. Johnson v. United States, ___ U.S.

___, 135 S. Ct. 2551, 2563 (2015); Mathis v. United States, ___ U.S. ___,

136 S. Ct. 2243, 2247-48 (2016). These issues do not bear any obvious

relevance to the sentencing of Mr. Lugo-Tovar.

      He may be referring to the eight-level enhancement for a prior

conviction of an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C) (2015).

The 2015 guideline commentary defines the term “aggravated felony based

on 8 U.S.C. § 1101(a)(43).” See id. comment 3. There the term “aggravated

felony” is defined to include a theft offense such as the receipt of stolen

property. 8 U.S.C. § 1101(a)(43). In light of this definition, we consider



                                      3
whether the district court plainly erred by treating Mr. Lugo-Tovar’s crime

as a theft offense.

       We must determine whether the elements of the generic offense

match the state crime underlying Mr. Lugo-Tovar’s past conviction. See

United States v. Maldonado-Palma, 839 F.3d 1244, 1246-47 (10th Cir.

2016). The past conviction involved receipt of stolen property, and the

2015 guidelines specify an eight-level enhancement for a past felony

conviction of a “theft offense (including receipt of stolen property).” See

p. 3, above. This term is defined broadly and is not limited to crimes

involving theft. United States v. Vasquez-Flores, 265 F.3d 1122, 1124

(10th Cir. 2001). If the elements of the generic theft offense match the

elements of receipt of stolen property, an Oklahoma conviction for receipt

of stolen property would constitute an aggravated felony and trigger the

eight-level enhancement.

       Under Oklahoma law, the elements of receipt of stolen property were

that

           the property had been stolen and

           the defendant bought or received the property, knowing that it
            has been stolen.

Gentry v. State, 562 P.2d 1170, 1174 (Okla. Crim. App. 1977). The

elements of the generic counterpart—“a theft offense (including receipt of

stolen property)”—are


                                      4
           the taking or control of property without the owner’s consent
            and

           the criminal intent to deprive the owner of the rights and
            benefits of ownership.

United States v. Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012).

We cannot see how any conduct satisfying the state offense’s elements

would fall outside the generic offense. Because the state offense matches

the generic form of the offense, an eight-level enhancement applies. See id.

      This enhancement would not implicate a question of vagueness (the

subject of Johnson) or suggest the need to differentiate between a crime’s

means and elements (the subject of Mathis). See United States v. Snyder,

871 F.3d 1122, 1130 (10th Cir. 2017) (distinguishing between Johnson

claims and claims involving classification of a crime as an enumerated

offense); United States v. Pam, 867 F.3d 1191, 1203 (10th Cir. 2017)

(stating that relief under Johnson is available only if the unconstitutional

residual clause contributed to the sentence enhancement, not if the

enhancement resulted from the enumerated-offense clause). Thus, the

district court did not plainly err by failing to consider Johnson or Mathis.

IV.   Request for Abeyance

      Mr. Lugo-Tovar also asks us to abate his appeal pending the Supreme

Court’s decision in Sessions v. Dimaya, cert. granted sub nom. Lynch v.

Dimaya, ___ U.S. ___, 137 S. Ct. 31, 2016 WL 3232911 (Sept. 29, 2016).

We decline this request because the eventual opinion in Dimaya will
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probably not affect Mr. Lugo-Tovar. In Dimaya, the Supreme Court

granted certiorari on the constitutional validity of the residual clause in

8 U.S.C. § 16(b). Section 16(b) was not applied to Mr. Lugo-Tovar. Thus,

Dimaya will likely not affect Mr. Lugo-Tovar’s sentence.

V.    Disposition

      We have considered defense counsel’s Anders brief, Mr. Lugo-

Tovar’s pro se brief, and the record. Having done so, we conclude that all

potential appeal points would be frivolous. Accordingly, we dismiss this

appeal, deny Mr. Lugo-Tovar’s request to abate the appeal, and grant

defense counsel’s request to withdraw.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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