     Case: 10-20433 Document: 00511456134 Page: 1 Date Filed: 04/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                          FOR THE FIFTH CIRCUIT                               FILED
                                                                             April 25, 2011

                                     No. 10-20433                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAMON ESPINOZA SILVA, also known as Ramon Silva,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-659-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ramon Espinoza Silva (Espinoza) pleaded 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 theft of a vehicle, which was deemed an “aggravated
felony.” Espinoza did not object to the enhancement. He now appeals, arguing
that his theft offense was not an aggravated felony.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20433

      Because Espinoza 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,
Espinoza 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 Espinoza’s theft 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) (internal 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). Espinoza 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.
Holder, 611 F.3d 279, 285 (5th Cir. 2010). Espinoza contends that the Texas
statute defines theft more broadly than the generic definition because it allows

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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. T EX . P ENAL C ODE A NN. § 31.03(a).
Appropriation is unlawful in three circumstances. § 31.03(b)(1)-(3). Espinoza
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 Espinoza
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”).
      Espinoza 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 . . . .” § 31.03(b)(3). Espinoza’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 § 31.03(b)(3) is not committed with the owner’s consent
because consent given for purposes of detecting a crime is not effective. See T EX.
P ENAL C ODE A NN. § 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

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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 § 31.03(b)(3). Espinoza 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. Ct. App. 1993), on which Espinoza
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. See Colson, 848 S.W.2d 330-32 & n.4.
Colson merely explained that the indictment provided adequate notice of the
charged crime by alleging a violation of § 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(b)(3). Id. at 331.
      Espinoza has failed to show a clear or obvious error in the district court’s
conclusion that he committed an aggravated felony by engaging in the theft of
a motor vehicle. The judgment of the district court is AFFIRMED.




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