U.S. v. Vidal

• Decision Date: 10 October 2007
• Docket Number: No. 04-50185.,04-50185.
• Citation: 504 F.3d 1072
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose VIDAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 1072

UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose VIDAL, Defendant-Appellant.

No. 04-50185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2007.

Filed October 10, 2007.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant.

Karen P. Hewiit, U.S. Attorney, Bruce R. Castetter, Assistant U.S. Attorney, and Mark R. Rehe, Assistant U.S. Attorney, San Diego, CA, for the appellee.

Christopher J. Meade, Janet R. Carter, Shauna Burgess, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY, as amicus curiae in support of appellant.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-03-01178-1-JTM.

Before: MARY M. SCHROEDER, Chief Circuit Judge, STEPHEN REINHARDT, ALEX KOZINSKI, HAWKINS, SIDNEY R. THOMAS, KIM McLANE WARDLAW, W. FLETCHER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge CALLAHAN; Dissent by Judge KOZINSKI.

PAEZ, Circuit Judge:

Following Juan Jose Vidal's plea of guilty to a violation of 8 U.S.C. § 1326, the district court imposed an eight-level sentence enhancement, pursuant to United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 2L1.2(b)(1)(C) (2002),¹ based on Vidal's 1994 conviction under California Vehicle Code section 10851(a), which criminalizes "theft and unlawful driving or taking of a vehicle."

In this appeal, we consider whether a prior conviction for a violation of section 10851(a) qualifies as an aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(G),² which includes within the group of aggravated felony offenses "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." We conclude that a conviction under section 10851(a) does not "necessarily satisf[y]" all the elements of the generic theft offense, see United States v. Grisel, 488 F.3d 844, 847 (9th Cir.2007) (en banc) because it applies not only to principals and accomplices but also to accessories after the fact. We also conclude, applying the modified categorical approach, that the record before us does not establish that by pleading guilty to a violation of section 10851(a), Vidal admitted to all the elements of generic theft. We therefore vacate the district court's sentence and remand for resentencing.

I.

In 1994, Juan Jose Vidal was charged in the Municipal Court of San Diego County with "unlawful driving or taking of a vehicle" in violation of California Vehicle Code section 10851(a).³ Count One of the Complaint alleged:

On or about June 21, 1994 [Vidal] did willfully and unlawfully drive and take a vehicle, the personal property of GARY CRAWFORD, without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a).

Count Two charged Vidal with "receiving stolen property," in violation of Penal Code section 496(a), for allegedly "buy[ing], receiv[ing], conceal[ing], sell[ing], and withhold[ing] a vehicle the property of GARY CRAWFORD, which had been stolen."

Vidal pled guilty, pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970), to Count One in exchange for the district attorney's promise to dismiss Count Two. As opposed to the conduct charged in Count One of the Complaint—"willfully and unlawfully driv[ing] and tak[ing] a vehicle"—the written plea and waiver of rights form shows that Vidal pled guilty only to "driving a stolen vehicle." No recitation of the factual basis for Vidal's plea appears on this form. Instead, only "People v. West" is entered in the section that requests a description of facts supporting any charges in Count One. The district court record does not contain a transcript of the plea hearing or a copy of the judgment of conviction and sentence.

In 2003, Vidal was charged with and pled guilty to violating 8 U.S.C. § 1326. Pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2002), Vidal was subject to an eight-level sentence enhancement if he "previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony."⁴ Concluding that the 1994 conviction under California Vehicle Code section 10851(a) constituted an aggravated felony "theft offense," the district court applied the eight-level enhancement. After applying a three-level downward adjustment for acceptance of responsibility, the district court imposed a sentence of thirty-three months and a three-year period of supervised release.

Vidal timely appealed his sentence, arguing that his 1994 conviction was not an aggravated felony and that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precluded application of the Taylor modified categorical approach. See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). He also objected, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to the district court's treatment of the Guidelines as mandatory. A divided three-judge panel affirmed the district court's application of the eight level sentence enhancement but remanded for further proceedings in light of Booker and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Vidal, 426 F.3d 1011 (9th Cir.2005). We granted rehearing en banc, see 453 F.3d 1114 (9th Cir.2006), but stayed submission pending the Supreme Court's decision in Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

Duenas-Alvarez establishes that the term "theft offense" in 8 U.S.C. § 1101(a)(43)(G) "includes the crime of `aiding and abetting' a theft offense" and that, accordingly, the possibility of being convicted under section 10851(a) as an accomplice does not render the statute broader than the generic definition. Id. at 820. In so holding, the Court rejected the petitioner's argument that even if the generic theft offense includes accomplice liability, California's application of the natural and probable consequences doctrine would support a conviction based on conduct that would not qualify as generic aiding and abetting. See id. at 821-22 (overruling Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005), vacated ___ U.S. ___, 127 S.Ct. 1146, 166 L.Ed.2d 992 (2007)). The Court declined to reach the petitioner's alternative arguments that section 10851(a) is overbroad because it extends liability to accessories after the fact and because it encompasses joyriding. Id. at 822-23.

Duenas-Alvarez thus left open the question we consider here: whether the possibility of being convicted under section 10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense. In light of our determination that it does, we need not address Vidal's alternative arguments that section 10851(a) is overly inclusive because California's natural and probable consequences doctrine would allow for conviction without mens rea to commit theft and because joyriding and de minimis deprivations fall within the statute's sweep. We also conclude, applying the modified categorical approach, that because Vidal's plea pursuant to People v. West did not establish the factual predicate for his conviction, the record does not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n. 7 (9th Cir.2004) (internal quotation marks and alteration omitted). Accordingly, we vacate the sentence and remand for resentencing.⁵

II.

Whether Vidal's 1994 conviction constitutes an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) is a question of law that we review de novo. United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir.2002) (citing United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc)).

III.

To determine whether the district court properly applied the eight-level enhancement in U.S.S.G. § 2L1.2(b)(1)(C) to Vidal's conviction under California Vehicle Code section 10851(a), we employ the two-step test set forth in Taylor. We first consider whether the "full range of conduct covered by the criminal statute falls within the meaning of" the generically defined theft offense. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (internal quotation marks and alteration omitted). If the answer to this first, categorical inquiry is no, we then turn to the Taylor modified categorical approach "to determine if there is sufficient evidence [in the record] to conclude that [Vidal] was convicted of the elements of the generically defined crime." Id.

A. Categorical Approach

Like several of our sister circuits,⁶ we generically define a theft offense as "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir.2005) (internal quotation marks omitted).⁷ Vidal's 1994 conviction is not categorically a theft offense unless the full range of conduct proscribed by section 10851(a) falls within the scope of this generic definition. We conclude that it does not because whereas the generic theft offense encompasses only principals, accomplices,⁸ and others who incur liability on the basis of pre-offense conduct, section 10851(a) also reaches accessories after the fact.

1.

At common law, participants in a felony offense fell into four separate categories:

(1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the...