U.S. v. Vidal

• Decision Date: 24 October 2005
• Docket Number: No. 04-50185.,04-50185.
• Citation: 426 F.3d 1011
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose VIDAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1011

426 F.3d 1011

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 February 9, 2005.

Submission Vacated and Deferred February 22, 2005.

Resubmitted and Filed October 24, 2005.

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Siri Shetty, San Diego, CA, for the defendant-appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

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: BROWNING, MAGILL,^* and RYMER, Circuit Judges.

RYMER, Circuit Judge.

Juan Jose Vidal appeals from his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. Vidal challenges the eight-level enhancement to his sentence resulting from the district court's conclusion that his conviction for the unlawful taking of a vehicle, in violation of California Vehicle Code § 10851(a), constitutes an aggravated felony under United States Sentencing Guideline § 2L1.2(b)(1)(C). He also argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precludes resort to the modified categorical approach to determine whether the defendant was previously convicted of conduct that would constitute an aggravated felony under federal law. Finally, in a Fed. R.App. P. 28(j) letter, Vidal asks for his sentence to be vacated and remanded for reconsideration in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We conclude that Vidal was convicted of an aggravated felony. Moreover, Blakely does not undermine Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), or our own authority embracing the modified categorical approach. Therefore, the district court did not err in applying it. Nevertheless, we remand for further proceedings in light of Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, and United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc).

I

Vidal, a Mexican citizen, entered the United States from Mexico on February 15, 2003. Border Patrol agents discovered and arrested him the next day. The government filed an indictment in the Southern District of California charging Vidal with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. Vidal pled guilty to the charge. The district court then determined, under both the categorical and modified categorical approaches, that Vidal's 1994 conviction for the unlawful driving or taking of a vehicle, in violation of California Vehicle Code § 10851(a), constituted a conviction for a "theft offense." Because a theft offense is an aggravated felony, the district court increased Vidal's offense level by eight levels, pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(C). Vidal was sentenced to 33 months imprisonment.

Vidal timely appealed.

II

Whether Vidal's prior conviction qualifies as an aggravated felony for purposes of § 2L1.2 is reviewed de novo. United States v. Arellano-Torres, 303 F.3d 1173, 1176(9th Cir.2002) (citation omitted).

III

A

Vidal argues that California Vehicle Code § 10851(a) does not categorically qualify as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). In the 2002 version of the Guidelines, which the district court correctly used here, § 2L1.2(b)(1)(C) provides for an 8-level enhancement of the offense level if the defendant was previously deported after a conviction for an aggravated felony. A "theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year" is an aggravated felony for purposes of U.S.S.G. § 2L1.2. U.S.S.G. § 2L1.2, cmt. n. 2; 8 U.S.C. § 1101(a)(43)(G).

To determine whether Vidal's prior conviction qualifies as an aggravated felony, we first "look only to the fact of conviction and the statutory definition of the prior offense." United States v. Corona-Sanchez, 291 F.3d 1201, 1203(9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Under the categorical approach, the court asks whether "the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law." Id.

Vidal contends that § 10851 is overly broad in two respects. First, he maintains that it encompasses the intent to make a temporary or de minimis deprivation of a vehicle whereas the generic federal definition of "theft offense" adopted in Corona-Sanchez employs the Model Penal Code approach that requires the intent "to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value." 3 Wayne R. LaFave, Substantive Criminal Law § 19.5, at 88 (2003). We disagree that it is possible to read Corona-Sanchez in this way. There, we adopted the Seventh Circuit's generic definition of the phrase "theft offense (including receipt of stolen property)," which is

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.

291 F.3d at 1205(quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001)). We noted that "Congress used the words `theft offense' rather than just `theft,' thus indicating that the phrase ought be read to incorporate different but closely related constructions in modern state statutes." Id. And we explicitly declined to embrace the Model Penal Code definition, whether or not it reflects the view of a majority of modern theft statutes. Id.

There is no inconsistency between § 10851(a) and Corona-Sanchez's generic definition. Section 10851(a) criminalizes "tak[ing] a vehicle ... without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle,"¹ while Corona-Sanchez contemplates deprivations even if "less than total or permanent." Thus, the intent to make a less than permanent, i.e., temporary, deprivation of a vehicle falls within the intent requirement of a theft offense.

Vidal's reliance on Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir.2003), is misplaced. He argues that the Arizona statute at issue in Nevarez-Martinez was similar to § 10851(a) and that we held there that it did not categorically constitute an aggravated felony. However, the problem being addressed was different. While two sections of the divisible Arizona statute required intent to permanently deprive, the other three sections included no intent requirement whatsoever. Id. at 1055 ("The Arizona statute requires knowledge, but the statute does not require intent for violation of (2), (4) or (5)."). We held that violation of the statute did not constitute a theft offense within the generic definition because the statute did not require "criminal intent to deprive the owner," but we did not hold that a statute that criminalizes the intent to temporarily deprive — as California's does — is not a theft offense.

Vidal also maintains that § 10851(a) is over-inclusive in that it allows convictions based on aiding and abetting liability. The statute includes "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking" of a vehicle. Relying on Corona-Sanchez, Vidal points out that we held that California's general theft statute, California Penal Code § 484(a), does not categorically qualify as a theft offense because in California, "[a] defendant can be convicted of the substantive offense of violation of § 484 for aiding and abetting a theft, even if that theory is not specifically charged." 291 F.3d at 1207-08. Additionally, he notes that we recently held in Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005), that § 10851(a) is not a theft offense that qualifies as an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G).

Corona-Sanchez does not control on the import of California's aiding and abetting liability because it was decided under Guidelines that have since been amended. In Corona-Sanchez, the district court applied the 1997 version of § 2L1.2 whose commentary made no mention of aiding and abetting liability. 291 F.3d at 1202 n. 2. However, § 2L1.2 was amended in November 2001(well before Vidal reentered the United States and was convicted and sentenced) to include aiding and abetting aggravated felonies as aggravated felonies. The applicable Application Note states: "Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1.2, cmt. n. 4 (2002). This commentary governs Vidal's sentence. See United States v. Rodriguez-Rodriguez, 393 F.3d 849, 858 (9th Cir.2005) (noting that the application notes specifically include convictions for aiding and abetting). Penuliar is distinguishable for the same reason, because it construed § 1101(a)(43)(G) alone, without the commentary to U.S.S.G. § 2L1.2 that includes aiding and abetting for purposes of enhancing the offense level for prior convictions.

Even so, Vidal argues that California aiding and abetting liability is broader than federal aiding and abetting liability. Again relying on Corona-Sanchez, he posits that "[u]nder California law, aiding and abetting liability is quite broad, extending even to promotion and instigation." 291 F.3d at 1208 (citing People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, 1325-26 (1984)). In comparison, he submits, the federal version requires proof

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the...