United States v. Medina–Torres

• Decision Date: 21 December 2012
• Docket Number: No. 11–40656.,11–40656.
• Citation: 703 F.3d 770
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cesar Noe MEDINA–TORRES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

703 F.3d 770

UNITED STATES of America, Plaintiff–Appellee,

v.Cesar Noe MEDINA–TORRES, Defendant–Appellant.

No. 11–40656.

United States Court of Appeals, Fifth Circuit.

Dec. 21, 2012.

Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, Hugo Ricardo Martinez, Asst. U.S. Atty. (argued), Corpus Christi, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

ON PETITION FOR REHEARING

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:

The petition for panel rehearing is GRANTED. The majority opinion and dissent, issued November 1, 2012, 2012 WL 5360876, are WITHDRAWN, and the following unanimous opinion is substituted. Appellant's motion to issue the mandate forthwith is GRANTED.

* * * * * *

Cesar Noe Medina–Torres pleaded guilty to one count of being found knowingly and unlawfully present in the United States after deportation in violation of 8 U.S.C. § 1326(a) & (b). The United States District Court for the Southern District of Texas sentenced Medina–Torres to 30 months' imprisonment. Medina–Torres appeals his sentence, arguing that the district court erred when it found his prior Florida conviction for theft to be a generic “theft offense” and therefore an “aggravated felony” under § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines and enhanced his sentence accordingly. We hold that the Florida statute under which Medina–Torres was convicted, Florida Statute 812.014(1), encompasses conduct broader than that required for a generic theft offense, and that there is insufficient information to conclude that he had the requisite level of intent for the conviction to qualify as a generic “theft offense.” Consequently, the prior conviction could not be used to enhance Medina–Torres' sentence based on a prior aggravated felony conviction. We VACATE the sentence and REMAND, however, to allow the government to present a possible alternate basis for the enhancement based on a different prior conviction.

I.

In January 2011, border patrol agents apprehended Cesar Noe Medina–Torres at a border checkpoint during an immigration inspection. Medina–Torres admitted to being a citizen of Mexico illegally present in the United States. Agents discovered that in 2007, Medina–Torres had been convicted for grand theft of a motor vehicle in Florida. Medina–Torres was removed from the United States in October of 2007 in accordance with an immigration judge's orders.

On March 23, 2011, Medina–Torres pleaded guilty pursuant to a plea agreement to one count of being found knowingly and unlawfully present in the United States after deportation in violation of 8 U.S.C. § 1326(a) & (b). Applying the United States Sentencing Guidelines (“the Guidelines” or “USSG”) of November 2010, the presentence report (“PSR”) assessed a base offense level of eight. See USSG § 2L1.2(a). Medina–Torres' offense level was then increased by an additional eight levels because he had previously been deported following an aggravated felony conviction. See id.§ 2L1.2(b)(1)(C). The district court relied on Medina–Torres' 2007 Florida conviction of grand theft under Florida Statutes section 812.014(1), for which he was sentenced to incarceration for one year and one day. After a three-level reduction for acceptance of responsibility, he received a total offense level of 13. See id.§ 3E1.1(a) and (b). Together with Medina–Torres' criminal history category of IV, this produced a Guidelines imprisonment range of 24 to 30 months. See USSG § 5A. The document under which Medina–Torres was convicted did not specify which subsection of the Florida theft statute he was charged with violating. During the sentencing hearing, the defendant told the district court that he was not aware of any mistakes in the PSR and did not object at that time to the eight-level enhancement for the alleged prior aggravated felony conviction. On May 27, 2011, the district court sentenced Medina–Torres to 30 months' imprisonment, three years of supervised release, and a $100 special assessment.

Medina–Torres timely appealed the sentence. He argues that the district court erred when it applied the eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) of the Guidelines based on his 2007 Florida conviction for grand theft of a motor vehicle. On appeal for the first time, the government asserts an alternative ground for the sentence enhancement. In 2004, Medina–Torres was arrested after a traffic stop; it was revealed that the vehicle he was driving contained illegal drugs and counterfeit currency in violation of Florida Statutes section 831.08. Medina–Torres pleaded guilty to the charge. A court sentenced him to six months' imprisonment followed by five years' probation. Medina–Torres violated the terms of his probation and as a result was sentenced to an additional 51 weeks' imprisonment. However, the government did not list this conviction as a grounds for enhancing his sentence in Medina–Torres' PSR, and the district court did not rely on it.

II.

We review the district court's interpretation and application of the federal Sentencing Guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005) (per curiam). Because Medina–Torres did not object below to the aggravatedfelony sentence enhancement, we review the district court's decision for plain error. See id. at 358.

III.

“This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights.” Villegas, 404 F.3d at 358–59 (citing, inter alia, United States v. Olano, 507 U.S. 725, 732–37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). When the foregoing elements are satisfied, we may exercise our discretion to remedy the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks, alterations, and citations omitted); Villegas, 404 F.3d at 358–59.

A.

Medina–Torres argues that his eight-level aggravated felony sentencing enhancement was erroneous because Florida's theft statute categorically encompasses conduct broader than the generic theft offense, and because in his case, the state court records do not narrow his conviction to show that he was convicted under the portion of the statute that is a qualifying theft offense. We agree.

To determine whether a felony conviction qualifies as an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(G), we employ a categorical approach. Martinez v. Mukasey, 519 F.3d 532, 540 (5th Cir.2008). Under the categorical approach, “we look at the statute under which [the defendant] was convicted rather than at the particular underlying facts to determine whether the offense falls within a particular definition of ‘aggravated felony[.]’ ” Id. (internal quotation marks omitted) (quoting Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir.2005)). Where “the statute of conviction contains a series of disjunctive elements,” at least one of which may not qualify as an aggravated felony, we employ a modified categorical approach to determine whether the particular crime for which the defendant was convicted constitutes an aggravated felony. United States v. Gonzalez–Terrazas, 529 F.3d 293, 297 (5th Cir.2008) (internal quotation marks and citations omitted). In conducting the modified categorical approach analysis, we are “limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

The term “aggravated felony” includes “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). ¹ The provision does not define “theft offense.” Under this Court's precedent, the “generic, contemporary meaning” of “theft offense” under § 1101(a)(43)(G) 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.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.2007) (per curiam) (internal citations omitted); see also, e.g., United States v. Dominguez–Ochoa, 386 F.3d 639, 642–43 (5th Cir.2004) (where the Sentencing Guidelines do not define an enumerated offense for enhancement purposes, courts must provide one “according to its ‘generic, contemporary meaning’ ”) (quoting Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Put otherwise, this generic definition requires “an intent to deprive the owner of the benefit proceeding from possession of the stolen goods.” Burke, 509 F.3d at 697.

Medina–Torres' prior conviction was for theft under Florida Statutes section 812.014(1), which states in relevant part:

A person commits theft if he or she knowingly obtains or uses ... the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Fla. Stat. § 812.014(1). The information under which Medina–Torres was charged did not specify which subsection applied in this case.

A plain-text reading of section 812.014(1) does not reveal whether subsections (a) and (b) are to be read conjunctively or disjunctively—that is, whether the crime includes both elements or just one or the other. If they are to be read disjunctively, then the statute encompasses conduct...