U.S. v. Corona-Sanchez, 98-50452.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation291 F.3d 1201
Docket NumberNo. 98-50452.,98-50452.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Moses CORONA-SANCHEZ, a/k/a Enrique Sanchez-Corona, Defendant-Appellant.
Decision Date06 June 2002
291 F.3d 1201
UNITED STATES of America, Plaintiff-Appellee,
Moses CORONA-SANCHEZ, a/k/a Enrique Sanchez-Corona, Defendant-Appellant.
No. 98-50452.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 11, 2001.
Filed June 6, 2002.

Page 1202

Wendy S. Gerboth, Hulett Harper LLP, San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney, Roger W. Haines, Jr., Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding. D.C. No. CR-98-00025-WBE.


Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge RYMER; Dissent by Judge KOZINSKI.

THOMAS, Circuit Judge.

This appeal presents the question of whether a California state conviction for the petty theft of cigarettes and beer constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and therefore justifies increasing a sentence for unlawful reentry pursuant to 8 U.S.C. § 1326(b)(2). Under the circumstances of this case, we conclude that it does not, and reverse and remand for resentencing.


Moses Corona-Sanchez was born in Guadalajara, Mexico and lived there until 1987 or 1988, when, at the age of 13, he came to the United States to live with his aunt. He attended junior high and high school in San Clemente, California. His exposure to law enforcement began in 1993, when he was charged with being a minor in possession of alcohol. Since that time, he has been convicted of various offenses, deported 16 times, and excluded twice.

Relevant to the case at hand, Corona-Sanchez was apprehended in 1994 while attempting to spirit away a 12-pack of beer and a pack of cigarettes from a grocery store.1 This was a reprise of his previous unsuccessful petty larceny of a liquor store, so he was sentenced for petty theft with a prior conviction.

In 1997, Corona-Sanchez pled guilty to the instant charge: being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). Because the district court deemed the 1994 petty theft conviction to be an aggravated felony, it increased Corona-Sanchez's base offense level from 8 to 24 pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A).2 After subtracting 3 levels

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for acceptance of responsibility and determining that Corona-Sanchez's criminal history category is VI, the court then committed Corona-Sanchez to the custody of the Bureau of Prisons for 77 months. From this sentence, he appeals. We reconsider the case en banc.


We adopt the portion of the panel opinion in this case that addresses an error in the indictment under which Corona-Sanchez was charged. See United States v. Corona-Sanchez, 234 F.3d 449, 451 (9th Cir.2000) [hereinafter Corona-Sanchez I]. For ease of reference, we reprint the relevant portion of the panel opinion in full here:

As an initial matter, we note that in February 1998, Corona-Sanchez pled guilty to a one-count indictment which charged him with a violation of both 8 U.S.C. [§] 1326(a) (being an alien found in the United States after deportation) and 8 U.S.C. § 1326(b)(2) (reentry after deportation and the commission of an aggravated felony). At that time, we considered § 1326(b)(2) to be a separate offense. See United States v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir.1992). Shortly after Corona-Sanchez's plea, the Supreme Court held that the fact of a prior aggravated felony conviction is not an element of the offense, but a sentencing factor to be applied by the court. See Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

We recently confronted this precise factual situation in United States v. Rivera-Sanchez, 222 F.3d 1057, 1061-62 (9th Cir.2000). There we held that where an indictment charges a defendant with a violation of both § 1326(a) and § 1326(b)(2) in the same count, and the judgment reflects conviction under both provisions, "the proper procedure under these circumstances is to direct the district court to enter a corrected judgment striking the reference to § 1326(b)(2) so that the judgment will unambiguously reflect that the defendant was convicted of only one punishable offense pursuant to § 1326(a)." Id.; see also United States v. Herrera-Blanco, 232 F.3d 715 (9th Cir.2000) (sua sponte remanding to the district court with directions to correct the judgment of conviction to exclude a reference to 8 U.S.C. § 1326(b)(2)). We shall do so here. We are left with Corona-Sanchez's challenge to his sentence.



The primary question on this appeal is whether Corona-Sanchez's prior conviction qualifies as an aggravated felony for federal sentencing purposes. In making this determination, we return to the familiar analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under Taylor, federal courts do not examine the facts underlying the prior offense, but "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143. If the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law, then the conviction may not be used for sentence enhancement unless the record includes "`documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.'" United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc) (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)). "`[I]f the statute and the judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense by the guidelines, then the conviction does

Page 1204

not qualify as a predicate offense.'" Id. (quoting Casarez-Bravo, 181 F.3d at 1077).


Corona-Sanchez's prior conviction is considered an aggravated felony for federal sentencing purposes if it is 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).3 As with many other subsections in the same statute, Congress did not define the term "theft offense." Thus, under Taylor, our first task is to construe and define the meaning of this phrase.

In construing other subsections of the same statute in the past, we have employed two methodologies, depending on the nature of the described offense. United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th Cir.2001). If the qualifying offense is described in terms of a traditional common law crime, then we have defined the offense in terms of its generic, core meaning. Id. at 1144; see also Ye v. INS, 214 F.3d 1128, 1131-32 (9th Cir.2000) (construing "burglary offense"). This approach is consistent with the principles of construction that the Supreme Court has long employed for federal criminal statutes. See, e.g., Neder v. United States, 527 U.S. 1, 21, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ("[W]here Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.") (internal quotation marks and modifications omitted).

If, on the other hand, the qualifying offense is described in terms that do not embrace a traditional common law crime, we have "employed the ordinary, contemporary, and common meaning" of the statutory words. Trinidad-Aquino, 259 F.3d at 1143; see also United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (construing "sexual abuse of a minor").

In this instance, our choice of methodology is clear because "[t]he contemporary crime of `theft' stems from the common law crime of larceny." Corona-Sanchez I, 234 F.3d at 454 (citing 2 Wayne R. LaFave, Criminal Law, § 8.1 (3d ed.2000)). Indeed, Blackstone describes the offense as "larceny or theft." 4 William Blackstone, Commentaries on the Law of England 229 (Univ. of Chicago ed.1979).

Initially, common law larceny was confined to a "trespassory taking," or one in which the thief "took and carried away" personal property that was in the owner's possession. Bell v. United States, 462 U.S. 356, 358, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). "The elements of common law larceny are (1) a wrongful taking and carrying away (asportation), (2) of the personal property of another, (3) with the fraudulent intent to deprive the owner of his property without his consent." United States v. Thordarson, 646 F.2d 1323, 1335 n. 22 (9th Cir.1981) (citing United States v. Barlow, 470 F.2d 1245, 1251 (D.C.Cir.1972)); see also 4 Blackstone, supra, at 229-33. As it evolved, the common law definition expanded "to include cases where the owner merely was deemed to be in possession." Bell, 462 U.S. at 359, 103 S.Ct. 2398. However, "[b]y the late 18th century, courts were less willing to expand common-law definitions." Id. Thus, criminal statutes "such as embezzlement and obtaining property by false pretenses" were enacted to "fill this gap." Id. At present, "[m]ost modern codes have abolished the separate crimes of larceny, embezzlement,

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and false pretenses in favor of the comprehensive crime of `theft.'" Corona-Sanchez I, 234 F.3d at 454 (citing 2 LaFave, supra, §§ 8.2 n. 1, 8.8).

Corona-Sanchez argues that we ought to limit the concept of "theft offense" to its common law definition in our formulation of a core, generic concept of the term. Although the common law definition informs us and is the starting point of our analysis, it is not the end point. Indeed, such an approach was rejected by the...

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