     Case: 10-40679 Document: 00511375202 Page: 1 Date Filed: 02/08/2011




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

                                                 FILED
                                                                          February 8, 2011
                                     No. 10-40679
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

VICTOR BLANCAS-ROSAS, also known as Jaime Chihualqueno, also known as
Manuel Acevedo, also known as Izzeguil Ponce,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:10-CR-104-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Victor Blancas-Rosas pled guilty to one count of being in the United States
illegally after having been convicted of an aggravated felony and deported. His
sentence was enhanced under U.S.S.G.§ 2L1.2(b)(1)(C) for a prior Texas
conviction for engaging in an organized criminal activity involving vehicle theft,
which was deemed an “aggravated felony.” Blancas-Rosas did not object to the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40679

enhancement.     He now appeals, arguing that his theft offense was not an
aggravated felony.
      Because Blancas-Rosas failed to raise this issue in the district court, we
review it only for plain error. See United States v. Rodriguez-Parra, 581 F.3d
227, 229 (5th Cir. 2009), cert. denied, 130 S. Ct. 1544 (2010). To show plain
error, Blancas-Rosas must show a clear or obvious error that affected his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he does so, we have the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. See id. An
error is clear or obvious if “the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely assistance in detecting it.”
United States v. Frady, 456 U.S. 152, 163 (1982). A legal error is not clear or
obvious if it is subject to reasonable dispute. Rodriguez-Parra, 581 F.3d at 231
(finding error, but not a clear or obvious error).
      To determine whether Blancas-Rosas’s theft-based offense qualifies as an
aggravated felony, this court looks at the Texas theft statute to determine if it
sufficiently matches the generic definition of theft “as that offense is understood
in its ordinary, contemporary, and common meaning.” See United States v.
Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (quotation marks and citation
omitted). If the state theft statute allows a conviction for conduct outside the
generic definition, a conviction under that statute is not automatically a
conviction for the enumerated offense. See United States v. Rojas-Gutierrez, 510
F.3d 545, 548 (5th Cir. 2007). Blancas-Rosas must at least show “a realistic
probability, not a theoretical possibility,” that Texas would apply its theft statute
to conduct beyond the generic definition of theft.                See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007).
      Theft, including receipt of stolen property, is listed as an aggravated felony
under 8 U.S.C. § 1101(a)(43)(G). We have defined theft to consist, in relevant
part, of the taking of property without the consent of the owner. See Nolos v.

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Holder, 611 F.3d 279, 285 (5th Cir. 2010). Blancas-Rosas contends that the
Texas statute defines theft more broadly than the generic definition because it
allows a conviction in some circumstances without proof that the owner did not
consent to the appropriation of property.
      Texas law defines theft as the unlawful appropriation of property with the
intent to deprive the owner of the property.      Tex. Penal Code § 31.03(a).
Appropriation is unlawful in three circumstances. Id. at § 31.03(b)(1)-(3).
Blancas-Rosas concedes that his prior offense would be generic theft under
subsection (b)(1), which expressly concerns appropriation without the owner’s
effective consent. See id. at § 31.03(b)(1). We need not address the applicability
of subsection (b)(2), which concerns the knowing receipt of stolen property,
because Blancas-Rosas has not briefed the issue. See United States v. Reyes, 300
F.3d 555, 558 n.2 (5th Cir. 2002). Regardless, the owner’s lack of consent is
implicit under subsection (b)(2), because the knowing receipt of stolen property
“is tantamount . . . to a knowing exercise of control without consent of the
owner.” Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992); cf. also 8
U.S.C. § 1101(a)(43)(G) (defining theft to include “receipt of stolen property”).
      Blancas-Rosas argues that subsection (b)(3) permits a person to be
convicted of theft without proof that the taking was without the consent of the
owner. Under that subsection, appropriation is unlawful where “property in the
custody of any law enforcement agency was explicitly represented by any law
enforcement agent to the actor as being stolen and the actor appropriates the
property believing it was stolen . . . .” Tex. Penal Code § 31.03(b)(3). Blancas-
Rosas’s contention thus depends on the existence of some “realistic probability”
that the owner of property used in a “sting” under subsection (b)(3) may consent
to the taking of the property. See Duenas-Alvarez, 549 U.S. at 193-94.
      Texas statutory law and jurisprudence plainly establish that theft under
the circumstances of Section 31.03(b)(3) is not committed with the owner’s
consent because consent given for purposes of detecting a crime is not effective.

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                                  No. 10-40679

See Tex. Penal Code § 31.01(3)(D); Jarrott v. State, 1 S.W.2d 619, 621-22 (Tex.
Crim. App. 1927). A property owner who allows his property to be used as bait
in order to catch a thief does “not consent to any appropriation of his
[property] . . . nor to any taking of same further than was deemed necessary to
apprehend and detect the thief.” Jarrott, 1 S.W.2d at 621-22 (collecting cases).
The corollary of this principle is that the owner’s lack of consent is inherent in
the crime proscribed by Section 31.03(b)(3). Blancas-Rosas fails to show even a
theoretical legal possibility that a violation of subsection (b)(3) can be
accomplished with the consent of the owner of the stolen property.             See
Duenas-Alvarez, 549 U.S. at 193-94.
      Colson v. State, 848 S.W.2d 328 (Tex. App.–Amarillo 1993, pet. ref’d), on
which Blancas-Rosas relies, is not to the contrary. Colson did not abrogate the
principle that an owner of property does not consent to its appropriation by
allowing it to be used to catch a thief; nor did it suggest that the appropriation
of property under Section 31.03(b)(3) could occur with consent. Cf. Colson, id.
at 330-32 & n.4. Colson merely explained that the indictment provided adequate
notice of the charged crime by alleging a violation of Section 31.03(b)(3), without
any need to further allege a specific ground on which the owner’s consent was
ineffective under Section 31.01(3)(B) (then designated Section 31.04(4)(B)). Id.
at 331.
      Blancas-Rosas has failed to show a clear or obvious error in the district
court’s conclusion that he committed an aggravated felony by engaging in an
organized crime involving the theft of motor vehicles. The judgment of the
district court is AFFIRMED.




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