Duenas-Alvarez, et al v. Holder

Filing

FILED OPINION (STEPHEN R. REINHARDT, SUSAN P. GRABER and KIM MCLANE WARDLAW) DENIED. Judge: SR Concurring, Judge: SPG Authoring,. FILED AND ENTERED JUDGMENT. [8748915]

Case: 04-74471

08/20/2013

ID: 8748915

DktEntry: 150-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALEXANDER DUENASALVAREZ,
Petitioner,

No. 04-74471
Agency No.
A072-984-337

v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued March 7, 2011
Resubmitted August 13, 2013
Pasadena, California
Filed August 20, 2013
Before: Stephen Reinhardt, Susan P. Graber,* and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Reinhardt

*

Judge Susan Graber was drawn to replace Judge Betty Fletcher. She
has read the briefs, reviewed the record, and listened to the recording of
oral argument held on March 7, 2011.

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DUENAS-ALVAREZ V. HOLDER
SUMMARY**

Immigration
Following the Supreme Court’s order in Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007), vacating and
remanding this court’s opinion in Duenas-Alvarez v.
Gonzales, 176 F. App'x 820 (9th Cir. 2006) (unpublished),
the panel denied Luis Alexander Duenas-Alvarez’s petition
for review.
The panel held that the offense of taking a vehicle without
consent, in violation of California Vehicle Code § 10851(a),
is a divisible statute. Applying the modified categorical
approach, the panel determined that petitioner was charged as
a principal and not as an accessory after the fact. The panel
also held that petitioner was convicted of an act more serious
than joy-riding, where Board of Immigration Appeals’ and
this court’s precedent define a theft offense to include taking
property without consent, even if the deprivation is less than
total or permanent.
Judge Reinhardt concurred, writing that he was bound to
do so under Cabantac v. Holder, No. 09-71336, 2013 WL
4046052 (9th Cir. Aug. 9, 2013) (per curiam), and United
States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012)
(regarding the evidence and facts which this court may
consider in its modified categorical analysis).

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Allen E. Schoenfeld (argued), Christopher J. Meade, Anne K.
Small, Janet Carter, Matthew Jones, and Emily M. Meyers,
Wilmer Cutler Pickering Hale and Dorr LLP, New York,
New York, for Petitioner.
Bryan S. Beier (argued), Carol Federighi, and Allen W.
Hausman, Senior Litigation Counsel, Tony West and Peter D.
Keisler, Assistant Attorneys General, and Richard M. Evans,
Assistant Director, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.

OPINION
GRABER, Circuit Judge:
Petitioner Luis Alexander Duenas-Alvarez is a native and
citizen of Peru who entered the United States in 1990. He
became a lawful permanent resident in 1998. In 2002, he was
convicted of having violated California Vehicle Code section
10851(a). Thereafter, removal proceedings were initiated.
An immigration judge and the Board of Immigration Appeals
(“BIA”) found Petitioner removable because he had
committed a theft offense that qualified as an aggravated
felony under 8 U.S.C. § 1101(a)(43). Petitioner sought
review in this court. We granted the petition and remanded
on the ground that section 10851(a) criminalizes aiding and
abetting, which falls beyond the scope of a generic theft
offense. Duenas-Alvarez v. Gonzales, 176 F. App’x 820 (9th
Cir. 2006) (unpublished). The Supreme Court then granted
certiorari, vacated our decision, and remanded the case to us.

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Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). We now
deny the petition for review.
The question for decision is whether the government
proved that Petitioner was convicted of a qualifying felony
theft offense. Petitioner raises two arguments: (1) it is not
clear that he was convicted as a principal, instead of as a mere
accessory after the fact, under California Vehicle Code
section 10851(a); and (2) it is not clear that he was convicted
of an act more serious than joy-riding. Neither argument
persuades us.
Under the categorical approach, we “compare the
elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). As the Supreme Court
recently clarified, we apply a variant of this method, the
modified categorical approach, “when a prior conviction is
for violating a so-called ‘divisible statute.’” Id. A divisible
statute is one that
sets out one or more elements of the offense
in the alternative—for example, stating that
burglary involves entry into a building or an
automobile.
If one alternative (say, a
building) matches an element in the generic
offense, but the other (say, an automobile)
does not, the modified categorical approach
permits . . . courts to consult a limited class of
documents, such as indictments and jury
instructions, to determine which alternative
formed the basis of the defendant’s prior
conviction. The court can then do what the

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categorical approach demands: compare the
elements of the crime of conviction (including
the alternative element used in the case) with
the elements of the generic crime.
Id.
As relevant here, California Vehicle Code section
10851(a) is divisible in that it imposes criminal liability in the
alternative on principals as well as on accessories after the
fact. See Cal. Vehicle Code § 10851(a) (“Any person who
drives or takes . . . or any person who is a party or an
accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense . . . .”
(emphases added)); see also United States v. Vidal, 504 F.3d
1072, 1082 (9th Cir. 2007) (en banc) (holding that there is “a
‘realistic probability’ that California ‘would apply [section
10851(a)] to conduct that falls outside the generic definition
of’ a theft offense,” that is, to the conduct of an accessory
after the fact (quoting Duenas-Alvarez, 549 U.S. at 193)).
We therefore apply the modified categorical approach to
determine whether Petitioner was convicted as a principal,
instead of as an accessory after the fact.
In United States v. Snellenberger, 548 F.3d 699 (9th Cir.
2008) (en banc) (per curiam), we held that we may look to
documents such as the minute order or abstract of judgment
when applying the modified categorical approach. More
recently, in Cabantac v. Holder, No. 09-71336, 2013 WL
4046052, at *5 (9th Cir. Aug. 9, 2013) (per curiam), we held
that “where, as here, the abstract of judgment or minute order
specifies that a defendant pleaded guilty to a particular count
of the criminal complaint or indictment, we can consider the
facts alleged in that count.” Finally, in United States v.

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Valdavinos-Torres, 704 F.3d 679, 686–89 (9th Cir. 2012), we
examined a charging paper in combination with other
documents in the record, including the abstract of judgment,
to determine whether the defendant had pleaded guilty to an
aggravated felony. Applying those principles here, we reject
Petitioner’s first argument.
Count 1 of the information charged that on a certain date
in 2002, Petitioner committed “the crime of taking a vehicle
without the owner’s consent, in violation of Section 10851(a)
of the Vehicle Code, a felony,” and specifically that he “did
willfully and unlawfully drive or take” a 1992 Honda Accord
belonging to someone else “without the consent of and with
the intent to permanently or temporarily deprive the said
owner of title to and possession of” it. By contrast, the
information omitted any mention of, or text from, the portion
of the statute that refers to accessories after the fact. Thus,
Count 1 clearly and unambiguously charged Petitioner as a
principal who personally drove or took the vehicle of another,
without consent and with the intent to deprive the owner of it.
Consistent with the information, the abstract of judgment
shows that Petitioner was convicted by guilty plea of Count
1, “auto theft” under section 10851(a), and that he was
imprisoned for three years.
Petitioner’s second argument fares no better. The BIA
has held that California Vehicle Code section 10851(a) is a
categorical theft offense even though, in some circumstances,
it criminalizes taking a vehicle temporarily, as distinct from
permanently. In re V-Z-S-, 22 I. & N. Dec. 1338 (B.I.A.
2000) (en banc). Like the BIA, we have defined a “theft
offense” to include taking property without consent and with
the intent to deprive the owner of the property, even if the
deprivation is less than total or permanent. United States v.

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Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en
banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt.
n.4 (2002). Accordingly, Petitioner’s second argument is
foreclosed by binding precedent.
Petition DENIED.

REINHARDT, Circuit Judge, concurring.
I concur because I am bound to do so by Cabantac v.
Holder, No. 09-71336, 2013 WL 4046052 (9th Cir. Aug. 9,
2013) (per curiam), and United States v. Valdavinos-Torres,
704 F.3d 679 (9th Cir. 2012).

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