Lopez-Valencia v. Lynch

• Citation: 798 F.3d 863
• Decision Date: 17 August 2015
• Docket Number: No. 12–73210.,12–73210.
• Parties: Roberto LOPEZ–VALENCIA, aka Adelado Cortez, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

798 F.3d 863

Roberto LOPEZ–VALENCIA, aka Adelado Cortez, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 12–73210.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2015.

Filed Aug. 17, 2015.

Jeremy Sanders (argued) and Kelly Schwartz (argued), Supervised Law Students under the supervision of Kari E. Hong, Boston College Law School, Ninth Circuit Appellate Project, Newton, MA, for Petitioner.

Manning Evans (argued) and Joseph D. Hardy, United States Department of Justice Office of Immigration Litigation, Washington, D.C.; Joyce R. Branda, Acting Assistant Attorney General, and Blair T. O'Connor, Assistant Director, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A090–797–248.

Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

On its face, the task of figuring out whether a prior offense qualifies as a “violent felony” under the Armed Career Criminal Act or an “aggravated felony” under immigration law would seem to be a straightforward undertaking. After all, these categories conjure up the notion of certain kinds of crimes. In practice, however, the classification has been much more nuanced, and courts have spent inordinate amounts of time parsing whether a crime falls into one of these categories. The consequences are significant as the answer may lead either to an enhanced sentence under federal criminal law or to removal or a bar of relief under immigration law.

Although it professed that prior caselaw “all but resolves” the question, in Descamps v. United States the Supreme Court substantially altered the framework for determining whether a prior state court conviction triggers certain consequences in subsequent federal proceedings. ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Adhering to the methodology established by Descamps and our follow-on opinion in Rendon v. Holder, 764 F.3d 1077 (9th Cir.2014), we conclude that a conviction under California's theft statute¹ is not an aggravated felony because it is not a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G). To employ now-familiar legalese: a conviction for “theft” in California is categorically not a “generic theft offense” because it is both “overbroad” and “indivisible,” and thus not susceptible to the “modified categorical approach.” We grant Lopez–Valencia's petition and remand to the Board of Immigration Appeals for further proceedings.

Background

The facts essential to this appeal are not disputed. Lopez–Valencia, a native and citizen of Mexico, became a lawful permanent resident of the United States in 1989. In late 2004, he pleaded nolo contendere to a violation of California Penal Code Section 666 (petty theft as defined in California Penal Code Sections 484 and 488 with a sentence enhancement due to prior qualifying convictions), and was sentenced to a term of three years of probation. Several months later, Lopez–Valencia was arrested for possession of a controlled substance. He admitted to violating the terms of his probation and was sentenced to two years in state prison. In 2010, Lopez–Valencia was convicted of violating California Health and Safety Code Section 11550 (being under the influence of a controlled substance).

Following his second conviction, Lopez–Valencia was placed in removal proceedings. The Immigration Judge (IJ) ruled that both of Lopez–Valencia's convictions rendered him removable. The BIA affirmed on the ground that Lopez–Valencia's conviction “constitutes an aggravated felony” because it is a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G). In light of this ruling, the BIA declined to address the IJ's finding that Lopez–Valencia was also removable due to his conviction under Section 11550.

Analysis

The central issue in this appeal is whether a conviction under California's theft statute may qualify as an “aggravated felony” because it is a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G).² Just four years ago, we answered “sometimes” to this question. See United States v. Rivera, 658 F.3d 1073, 1077–78 (9th Cir.2011) (holding that a conviction for theft in California may be an aggravated felony if the record “establish[es] that [the defendant] pleaded guilty to a generic theft offense”). In Descamps, however, the Supreme Court rejected certain aspects of our circuit's method of determining whether a state conviction is an aggravated felony. Following the instructions of both Descamps and our subsequent decision in Rendon, we hold that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.³

Descamps prescribes a “three-step process” to determine whether a prior conviction is an aggravated felony. Medina–Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir.2014). At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. Id. at 1112. If this “categorical approach” reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony. See Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). When a statute is “overbroad,” meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is “divisible” or “indivisible.” Medina–Lara, 771 F.3d at 1112. If the statute is indivisible, “our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Id. Only when a statute is overbroad and divisible do we turn to step three—the “modified categorical approach.” At this step, we may examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating. Id. at 1113 ; see Descamps, 133 S.Ct. at 2293.

The parties agree that our resolution of the first step is dictated by precedent that was not called into question by Descamps. We have consistently held 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.” Rivera, 658 F.3d at 1077 ; see also Carrillo–Jaime v. Holder, 572 F.3d 747, 751 (9th Cir.2009) ; United States v. Corona–Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc). This is so because the elements of a generic federal theft offense are: “[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.” Rivera, 658 F.3d at 1077 (alterations in original) (quoting Carrillo–Jaime, 572 F.3d at 750 ). California's theft statute, however, “expressly criminalizes certain conduct—such as theft of labor, false credit reporting, and theft by false pretenses—that do not satisfy the generic definition.” Id. As we recently confirmed in Garcia v. Lynch, California's theft statute is “overbroad”: some people who have been convicted under it committed a generic theft offense, while some have not. 786 F.3d 789, 794 (9th Cir.2015) (per curiam). So far, so good.

The sledding gets tougher at step two: whether the statute is divisible. Before Descamps, this step was absent from our jurisprudence. For any overbroad statute, divisible or not, we “look[ed] beyond the statute of conviction to determine whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish[ed] that the defendant was convicted of all the elements of the relevant federal generic offense.” Sanchez–Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir.2012). Thus in Rivera, we applied the modified categorical approach to a theft conviction without pausing to analyze whether the statute was divisible. 658 F.3d at 1077.

The Supreme Court rejected this approach in Descamps. Abrogating our opinion in United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), and addressing a circuit split stemming from cases that employed the Aguila–Montes methodology, the Court instructed that a court may only apply the modified categorical approach to “divisible statute [s].” Descamps, 133 S.Ct. at 2285. It explained that a divisible statute “lists multiple, alternative elements, and so effectively creates ‘several different ... crimes.’ ” Id. (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ). If a statute does not list alternative elements, but merely encompasses different means of committing an offense, the statute is “indivisible” and the modified categorical approach “has no role to play.” Id.

Following Descamps, in Rendon we clarified how to distinguish truly divisible from indivisible statutes. 764 F.3d at 1084–90. There, we held that divisibility hinges on whether the jury must unanimously agree on the fact critical to the federal statute. Id. at 1085 (“[A] jury faced with a divisible statute must unanimously agree on the particular offense of which the petitioner has been convicted....”). By contrast, a statute is indivisible if “the jury may disagree” on the fact at issue “yet still convict.” Id. at 1086.

As the nuances and intricacies of the modified categorical approach are usually explained through a hypothetical crime involving guns and axes, we employ one here. Imagine a statute that criminalizes assault with “a gun or an axe.” A federal law imposes penalties only for defendants previously convicted of “gun offenses.” If state law makes clear that a defendant can be found guilty only if all twelve jurors agree that the defendant used a gun or if all twelve jurors agree...