Verdugo-Gonzalez v. Holder, 06-73733.

• Citation: 581 F.3d 1059
• Decision Date: 14 September 2009
• Docket Number: No. 06-73733.,06-73733.
• Parties: Leonardo VERDUGO-GONZALEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

581 F.3d 1059

Leonardo VERDUGO-GONZALEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06-73733.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2009.

Filed September 14, 2009.

Kristine L. Wilkes, Lola A. Kingo (argued), and Meghna Subramanian, Latham & Watkins LLP, San Francisco, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, David V. Bernal, Assistant Director, Russell J.E. Verby, Trial Attorney, Gregory G. Katsas, Assistant Attorney General, Barry J. Pettinato, Assistant Director, Shelley R. Goad, Senior Litigation Counsel, and Zoe J. Heller (argued), United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A036-909-171.

Before BARRY G. SILVERMAN, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

CLIFTON, Circuit Judge:

Leonardo Verdugo-Gonzalez petitions for review of an order that he be removed from the United States to Mexico. He was held ineligible for cancellation of removal because he had previously been convicted of an aggravated felony. He argues that his felony conviction for receipt of stolen property under section 496(a) of the California Penal Code did not constitute an aggravated felony, but we conclude that a conviction under that statute categorically qualifies as an aggravated felony for these purposes. We thus deny the petition for review.

I. Background

Verdugo-Gonzalez is a native and citizen of Mexico and has resided in the United States as a lawful permanent resident since 1981. He was convicted in 2004 for felony receipt of stolen property in violation of California Penal Code section 496(a) and was sentenced to serve sixteen months in prison.

Removal proceedings were later initiated against him, and an immigration judge ("IJ") ordered his removal to Mexico. Among other things, the IJ concluded that Verdugo-Gonzalez was statutorily ineligible for relief in the form of cancellation of removal because he had been convicted of an aggravated felony. Verdugo-Gonzalez appealed to the Board of Immigration Appeals ("BIA"), which adopted and affirmed the IJ's decision. Verdugo-Gonzalez timely petitioned this court for review of the BIA's decision.

II. Discussion

Cancellation of removal under 8 U.S.C. § 1229b(a) is not available to someone who has been convicted of an aggravated felony. An aggravated felony for this purpose is defined by the statute to include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G).

In determining whether a conviction for a given crime constitutes an aggravated felony, we apply the categorical test set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886-88 (9th Cir.2003). Under this test, we first make a categorical comparison of the elements of the state statute of conviction to the generic definition of a theft offense in order to determine whether the full range of conduct proscribed by the statute of conviction is broader than the generic definition. Taylor, 495 U.S. at 598-99, 110 S.Ct. 2143. If not, we then turn to the modified categorical approach to determine whether there is sufficient evidence in the record to conclude that the petitioner was convicted of all of the elements of a generic theft offense. Id. at 602, 110 S.Ct. 2143.

Applying this framework, we hold that there is a categorical match between the full range of conduct proscribed by section 496(a) of the California Penal Code and the generic definition of a theft offense. Section 496(a) provides in relevant part:

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.

A theft offense is generically defined as "the 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." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (internal quotation marks omitted).

Under California law, the crime of "receipt of stolen property" basically consists of three elements: (a) the property was stolen, and (b) the defendant was in possession of it, (c) knowing it was stolen. People v. Anderson, 210 Cal.App.3d 414, 420, 258 Cal.Rptr. 482 (1989). That fits within the generic definition of theft. The act of buying or receiving stolen property knowing that it was stolen entails an exercise of control over the property without consent and with the intent to deprive the owner of rights and benefits of ownership. See Randhawa v. Ashcroft, 298 F.3d 1148, 1154 (9th Cir.2002) (holding that a conviction for knowing possession of stolen mail inferentially contains the element of an intent to deprive the mail's true owner of rights and benefits of ownership). The same goes for the acts of concealing, withholding, and selling property knowing that it was stolen. Because each involves an exercise of control over property without consent, with the criminal intent to deprive the owner of rights and benefits of ownership, permanently or temporarily, they all fall within the generic definition of theft.

The California statute also covers someone who "aids" in the concealing, selling, or withholding of stolen property from the owner, knowing the property to be stolen or so obtained. See Cal.Penal Code § 496(a). Duenas-Alvarez explicitly held that the generic definition of a theft offense includes the crime of "aiding and abetting" a theft offense. 549 U.S. at 190, 127 S.Ct. 815. There is, therefore, a categorical match between the full range of conduct proscribed under section 496(a) of the California Penal Code and the generic definition of a theft offense.

Verdugo-Gonzalez's only argument to the contrary is that section 496(a)'s use of the term "aids" extends the statute to cover someone who was only an accessory after the fact and that accessory liability does not rise to the level of an aggravated felony. This argument fails.

Verdugo-Gonzalez relies on United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), to advance the argument that aiding and abetting liability is akin to accessory after the fact liability. Although Vidal explicitly held that accessory after the fact liability may render a state conviction statute broader than the generic definition of a theft offense, that case examined section 10851(a) of the California Vehicle Code, a statute that expressly included within its reach the actions of an accessory.¹ Id. at...