USA v. Mario Rivera

Filing

FILED OPINION (JOHN T. NOONAN, KIM MCLANE WARDLAW and EDWARD R. KORMAN) AFFIRMED. Judge: JTN , Judge: KMW , Judge: ERK Authoring. FILED AND ENTERED JUDGMENT. [7904304]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO ANTONIO RIVERA,
Defendant-Appellant.



No. 10-50313



D.C. No.
3:09-cr-01855-DMS



OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
May 2, 2011—Pasadena, California
Filed September 23, 2011
Before: John T. Noonan and Kim McLane Wardlaw,
Circuit Judges, and Edward R. Korman, District Judge*
Opinion by Judge Korman

*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

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UNITED STATES v. RIVERA

COUNSEL
Marc X. Carlos, Bardsley & Carlos, L.L.P., San Diego, California, for the defendant-appellant.
Laura E. Duffy, United States Attorney, San Diego, California, for the plaintiff-appellee.
Bruce R. Castetter, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
C. Seth Askins, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.

OPINION
KORMAN, District Judge:
Mario Antonio Rivera, an alien, has been convicted of at
least ten offenses and has been removed from the United
States ten times, most recently on December 5, 2008. Less
than six months after he was last removed, he was again
arrested as he attempted to cross the border from Mexico into
the United States. On January 29, 2010, Rivera pleaded guilty
to a violation of 8 U.S.C. § 1326—for unlawfully attempting
to reenter the United States after having previously been
removed—and was sentenced to a 37-month term of imprisonment, the low end of the range prescribed by the Sentencing Guidelines.
In calculating the prescribed range, the district court
increased the offense level by eight levels because Rivera

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“previously was deported, or unlawfully remained in the
United States, after . . . a conviction for an aggravated felony.” U.S.S.G. § 2L1.2(b)(1)(C) (emphasis added). The term
“aggravated felony” is defined to include a theft offense “for
which the term of imprisonment [is] at least one year.” 8
U.S.C. § 1101(a)(43)(G). The district court determined that
any one of Rivera’s three prior felony petty theft convictions
under Cal. Penal Code §§ 484(a) and 666 would be sufficient
to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state
prison for his first and second offense and two years in state
prison for his third offense.
Relying on United States v. Corona-Sanchez, 291 F.3d
1201 (9th Cir. 2002) (en banc), Rivera argues that the district
court erroneously held that these petty theft convictions each
categorically qualified as an aggravated felony, as defined by
8 U.S.C. § 1101(a)(43)(G). Applying the categorical approach
set forth in Taylor v. United States, 495 U.S. 575 (1990),
Corona-Sanchez held that a petty theft conviction, under Cal.
Penal Code § 484(a), cannot qualify as an aggravated felony
for two reasons. First, barring an enhancement based on any
prior offenses, the sentence for a violation of § 484(a) is only
six months, Corona-Sanchez, 291 F.3d at 1210 (citing Cal.
Penal Code § 490), and, in determining whether a state
offense is an aggravated felony, courts “must consider the
sentence available for the crime itself, without considering
separate recidivist sentencing enhancements,” id. at 1209.
Second, a broader range of conduct is prohibited by Cal.
Penal Code § 484(a) than is prohibited by the generic theft
offense referenced in 8 U.S.C. § 1101(a)(43)(G), so a conviction under Section 484(a) is not necessarily an aggravated felony. Corona-Sanchez, 291 F.3d at 1208. These arguments do
not avail the defendant here, although for different reasons.
DISCUSSION
[1] We review the “district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s application

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of the Sentencing Guidelines to the facts of this case for abuse
of discretion, and the district court’s factual findings for clear
error.” United States v. Cruz-Gramajo, 570 F.3d 1162, 1167
(9th Cir. 2009) (internal quotation marks and citations omitted). We begin by addressing the question whether a conviction for petty theft under Cal. Penal Code §§ 484(a) and 666
can qualify as an aggravated felony because a conviction for
petty theft is a misdemeanor that carries a sentence of not
more than six months in the county jail, see Cal. Penal Code
§§ 17(a), 490, and because the term of imprisonment can
increase to sixteen months or two years (as it did in this case)
only if a recidivist sentencing provision applies, see Cal.
Penal Code §§ 18, 666. The Supreme Court resolved this
issue in United States v. Rodriquez, 553 U.S. 377 (2008). The
issue there turned on the language of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), (2)(A)(ii). Under
the ACCA, a person convicted for being a felon in possession
of a firearm, who has three prior convictions for a “serious
drug offense,” is subject to a 15-year mandatory minimum. 18
U.S.C. §§ 922(g), 924(e)(1). The term “serious drug offense”
is defined in relevant part as a state drug-trafficking conviction “for which a maximum term of imprisonment of ten years
or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
The defendant in Rodriquez had three prior drug-trafficking
convictions. 553 U.S. at 380. The maximum penalty of
imprisonment under Washington law for such drug-trafficking
offenses was 5 years. Id. at 381. But a conviction for a second
or subsequent offense carried a maximum penalty of 10 years
imprisonment. Id.
[2] We had held in United States v. Rodriquez, 464 F.3d
1072 (9th Cir. 2006), rev’d 553 U.S. 377 (2008), that the
recidivist enhancement could not be considered in determining whether the defendant’s prior drug-trafficking convictions
constituted a serious drug offense, id. at 1080. As the
Supreme Court observed, in the course of reversing us,
Rodriquez, 553 U.S. at 382, we had come to this conclusion
by “applying [our] prior precedent in United States v. Corona-

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Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc),” which
held that a conviction for a substantive offense must be considered separate and apart from any sentencing enhancements
because “recidivism does not relate to the commission of the
offense,” Corona-Sanchez, 291 F.3d at 1209 (internal quotation marks and citation omitted). But Rodriquez held, to the
contrary, that an increased, recidivist “sentence is a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because [it is] a repetitive one.” 553 U.S.
at 386 (internal quotation marks and citation omitted). Thus,
because the recidivist sentence does relate to the commission
of the repeat offense and is clearly part of the sentence “prescribed by law,” a recidivist sentence may be considered in
determining whether a prior conviction qualifies as a predicate offense. See Rodriquez, 553 U.S. 382-86. In light of the
Supreme Court’s reasoning in Rodriquez, we decline to follow Corona-Sanchez here because, as we have held, we are
not bound by a circuit precedent “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with
the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
[3] Rivera argues, however, that Rodriquez did not disturb
Corona-Sanchez because the ACCA “is a very different statute than [the INA].” This argument fails because the Supreme
Court’s reasons for rejecting the holding of Corona-Sanchez
apply with equal force regardless of the statutory scheme at
issue. Nevertheless, there is one salient difference between the
ACCA provision at issue in Rodriquez and the INA provision
at issue in Corona-Sanchez (though this difference is of no
avail to Rivera here). The ACCA enhances a sentence for a
felon in possession of a weapon if he had previously been
convicted of, among other offenses, a serious drug offense. 18
U.S.C. § 924(e)(2)(A)(I). The INA enhances a sentence for
unlawful reentry if the defendant had previously been convicted of an aggravated felony, which includes a theft offense
for which the term of imprisonment is at least one year. 8
U.S.C. § 1101(a)(43)(G). Thus, the state drug convictions of

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the defendant in Rodriquez qualified as serious drug offenses,
even though he was given a sentence far below the 10-year
maximum, simply because the offenses were punishable by a
10-year maximum sentence. The “at least one year” requirement of 8 U.S.C. § 1101(a)(43)(G), however, pertains to “the
actual sentence imposed by the trial judge.” Alberto-Gonzalez
v. I.N.S., 215 F.3d 906, 910 (9th Cir. 2000). Because Rivera
was actually sentenced to terms of imprisonment of at least
one year for each of his felony petty theft convictions, they
clearly satisfy the threshold sentence requirement for an
aggravated felony.
The fact that Rivera’s petty theft convictions under Cal.
Penal Code §§ 484(a) and 666 satisfy the “at least one year”
sentence requirement of 8 U.S.C. § 1101(a)(43)(G) does not,
however, end our inquiry. We must still address the issue
whether such a conviction constitutes a predicate theft offense
that may be deemed an aggravated felony. To make this determination, we first compare “the fact of conviction and the
statutory definition of the prior offense” with the statutory
definition of the predicate offense. Taylor, 495 U.S. at 602. If
the full range of conduct prohibited by the state petty theft
provision is also prohibited by the federal theft offense provision, then the petty theft offense is a categorical match to the
predicate theft offense, and the sentencing enhancement is
warranted. See United States v. Farmer, 627 F.3d 416, 418
(9th Cir. 2010) (explaining Taylor’s methodology), cert.
denied, No. 10-9620, 2011 WL 1043734 (June 27, 2011).
[4] Our prior decisions have established, however, that a
petty theft conviction, under Cal. Penal Code §§ 484(a) and
666, is not a categorical match to the federal definition of a
theft offense. The latter is limited to “ ‘[1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights
and benefits of ownership, even if such deprivation is less
than total or permanent.’ ” Carrillo-Jaime v. Holder, 572 F.3d
747, 750 (9th Cir. 2009) (quoting Corona-Sanchez, 291 F.3d

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at 1205). Cal. Penal Code § 484(a) is not a categorical match
to 8 U.S.C. § 1101(a)(43)(G) because the state statute also
expressly criminalizes certain conduct—such as theft of labor,
false credit reporting, and theft by false pretenses—that do not
satisfy the generic definition. Carrillo-Jaime, 572 F.3d at 751,
753.
[5] “Where, as here, the state statute is broader than the
federal definition of a predicate offense, ‘we must use the so
called modified categorical approach . . . .’ ” United States v.
Strickland, 601 F.3d 963, 967-68 (9th Cir. 2010) (en banc)
(quoting United States v. Snellenberger, 548 F.3d 699, 701
(9th Cir. 2008) (en banc) (per curiam)). “Our purpose is to
determine whether documentation or judicially noticeable
facts clearly establish that the defendant pleaded guilty to
facts covered by the predicate offense.” Id. at 968. Under this
approach, a court may look only to the “record of conviction,”
generally defined as “ ‘the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the [state] trial judge to which
[the defendant] assented.’ ” United States v. Vidal, 504 F.3d
1072, 1086 (9th Cir. 2007) (en banc) (quoting Shepard v.
United States, 544 U.S. 13, 16 (2005)).
In Corona-Sanchez, “[a]ll the known information about the
conviction [came] from the rendition of criminal history contained in the presentence report,” which merely “describe[d]
the qualifying offense as ‘666/488 PC, Petty Theft with Prior
Jail Term for a Specific Offense.’ ” 291 F.3d at 1206. But we
held in Corona-Sanchez that “a presentence report reciting the
facts of the crime is insufficient evidence to establish that the
defendant pled guilty to the elements of the generic definition
of a crime when the statute of conviction is broader than the
generic definition.” Id. at 1212. In this case, however, we
need not rely on the presentence report (as the district court
did) because we have available the charging instruments, plea
form, and the abstract of judgment for Rivera’s May 30, 2006

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petty theft convictions, which establish that Rivera pleaded
guilty to a generic theft offense.
[6] The felony complaint and felony information alleged
that Rivera “did unlawfully and in violation of Penal Code
Section 484(a), steal take and carry away the personal property of WAL-MART.” By pleading guilty to this charge,
Rivera pleaded guilty to “ ‘a taking of property . . . without
consent with the criminal intent to deprive the owner of rights
and benefits of ownership . . . .’ ” Corona-Sanchez, 291 F.3d
at 1205 (quoting Hernandez-Mancilla v. I.N.S., 246 F.3d
1002, 1009 (7th Cir. 2001)); cf. People v. Davis, 965 P.2d
1165, 1167 (Cal. 1998) (stating elements of petty theft under
§ 484(a)); People v. Thompson, 322 P.2d 489, 490 (Cal. Ct.
App. 1958) (same). Because the felony complaint and the felony information each qualify as “a charging document that
narrows the charge to generic limits,” the fact that Rivera
pleaded guilty to this charge establishes that he was convicted
of a generic theft offense. Shepard, 544 U.S. at 25.
CONCLUSION
[7] Because the judicially-noticeable documents submitted
by the United States Attorney establish clearly and unequivocally that Rivera’s May 30, 2006 petty theft conviction was
based upon his plea of guilty to conduct that constitutes a
generic theft offense, and because this was a theft offense
conviction for which the term of imprisonment was at least
one year, Rivera’s offense level was correctly increased by
eight levels, under U.S.S.G. § 2L1.2(b)(1)(C).
AFFIRMED.