USA. v. Sanchez

• Decision Date: 15 July 1999
• Docket Number: CORONA-SANCHEZ,No. 98-50452,98-50452
• Citation: 234 F.3d 449
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOSES, aka Enrique Sanchez-Corona, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 449

234 F.3d 449 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOSES CORONA-SANCHEZ, aka Enrique Sanchez-Corona, Defendant-Appellant.

No. 98-50452

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted July 15, 1999¹

Filed December 8, 2000

Wendy S. Gerboth, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Jacqueline J. Jackson, Assistant United States Attorney, San Diego, California, 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

Before: Melvin Brunetti, Pamela Ann Rymer, and Barry G. Silverman, Circuit Judges.

BRUNETTI, Circuit Judge:

Moses Corona-Sanchez pled guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. 1326(a) and (b)(2). He received a 77-month sentence, which reflects a sixteen-level enhancement of the base offense level, based on the district court's finding that Corona-Sanchez reentered the United States after deportation and the commission of aggravated felony pursuant to 8 U.S.C. 1326(b)(2) and United States Sentencing Guideline 2L1.2(b)(1)(A). Corona-Sanchez challenges whether his conviction under California Penal Code 488 and 666 constitutes an "aggravated felony" as that term is defined in 8 U.S.C. S 1101(a)(43)(G). We review de novo to determine whether the aggravated felony provision is applicable. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir. 2000). We conclude that it is and affirm.

I.

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 (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 S1326(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 (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.

II.

Corona-Sanchez is a citizen of Mexico who first came to the United States in 1988. His presentence report shows that he has been deported eighteen times since 1993. The report also lists at least ten occasions on which Corona-Sanchez was arrested for various crimes after his numerous reentries into United States. These include: showing false identification to a peace officer; being a minor in possession of alcohol; second degree commercial burglary; petit theft; possessing a dangerous weapon (brass knuckles); possession of cocaine; obstruction of justice/resisting a peace officer; petit theft with a prior; being under the influence of methamphetamine; consumption of alcohol in a public place and possession of a hypodermic needle.

In November 1997, Corona-Sanchez was deported and again returned. He was arrested for felony DUI, driving without a license, failing to drive on the right side of the road, and failure to provide financial responsibility. Corona-Sanchez was then taken into federal custody and was indicted on the present charge of being a deported alien found in the United States, in violation of 8 U.S.C. 1326. He pled guilty in February 1998 and was sentenced on June 29, 1998.

The United States Probation Office filed a presentence report recommending that the district court increase CoronaSanchez's offense level by 16 levels under U.S.S.G. 2L1.2(b)(1)(A) based on Corona-Sanchez's conviction of an "aggravated felony" following deportation. Corona-Sanchez objected to the report and the enhancement. The district court found that Corona-Sanchez qualified for the 16-level enhancement and sentenced him to the lower end of the guideline range, 77 months. Corona-Sanchez appeals, claiming that the district court erred by treating his prior California conviction for "petit theft with a prior" as an "aggravated felony" meriting a sentence enhancement.

III.

An alien who unlawfully reenters or remains in the United States after deportation is subject to a substantial increase in sentence if he previously was deported after having been convicted of an "aggravated felony." See U.S.S.G. 2L1.2(b)(1)(A). Section 2L1.2 relies on 8 U.S.C. 1101(a)(43) for its definition of "aggravated felony." An "aggravated felony" under 1101(a)(43)(G) includes "a theft offense (including receipt of stolen property) . . . for which the term of imprisonment [is] at least one year."² The Government concedes that the "theft offense" at issue (petit theft with a prior), which was treated as an "aggravated felony" under Section 1101(a)(43) to support a sentencing enhancement under U.S.S.G. 2L1.2, involves a California conviction arising from Corona-Sanchez's attempt to steal a twelve pack of beer and a pack of cigarettes from a grocery store. While this crime constitutes a petit theft under Cal. Penal Code 488, Corona-Sanchez was sentenced under Cal. Penal CodeS 666 for "petit theft with a prior conviction."

Section 666 is a sentencing enhancement provision, entitled "Petit theft; prior conviction of certain offenses; punishment." It provides that

[e]very person who, having been convicted of petit theft, . . . and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in state prison.

Id. Since Corona-Sanchez served 30 days in jail for a prior petit theft, he qualified for a 666 enhancement to "petit theft with a prior" based on his subsequent petit theft, involving the beer and cigarettes.

We must decide whether Corona-Sanchez's conviction under California Penal Code 488 and 666 for "petit theft with a prior" qualifies as an aggravated felony, requiring a sixteen-level increase in sentence under U.S.S.G. 2L1.2(b)(1)(A). We hold that it does.

IV.

In order to determine whether Corona-Sanchez's conviction for "petit theft with a prior" is an aggravated felony, we must decide what Congress meant by the term "theft offense" in Section 1101(a)(43)(G). Like many other terms in the same statute, Congress did not define the terms "theft," "offense," or "theft offense." Nor did Congress cross-reference "theft offense" with any other federal or state statute.

We have had occasion to interpret undefined terms in 8 U.S.C. 1101(a)(43). For example, in United States v. BaronMedina, 187 F.3d 1144, 1146 (9th Cir. 1999), we were tasked with defining the offense of "sexual abuse of a minor," which constitutes an "aggravated felony" under 1101(a)(43)(A). There, we employed the ordinary, contemporary, and common meaning of the words that Congress used to interpret the term. Id. We used the dictionary definition of "abuse" and the common, everyday meanings of "sexual" and "minor" to conclude that a conviction under California Penal Code Section 288(a) (lewd or lascivious act on a minor) constitutes a conviction for "sexual abuse of a minor" within the meaning of 8 U.S.C. 1101(a)(43). Id. at 1147.

In Ye v. Immigration and Naturalization Service , 214 F.3d 1128 (9th Cir. 2000), we considered whether the defendant's conviction for "vehicle burglary" under California Penal Code 459 qualified as a "burglary offense, " and thus, an "aggravated felony" under 8 U.S.C. 1101(a)(43)(G). Id. at 1131. Congress did not define the terms "burglary" or "burglary offense" under Section 1101(a)(43). However, we recognized that the Supreme Court had previously addressed the meaning of the term "burglary" contained in another statute in Taylor v. United States, 495 U.S. 575 (1990).

In Taylor, the Supreme Court examined whether a defendant's state conviction for "burglary" qualified him for a sentence enhancement under 8 U.S.C. 924(e) of the Career Criminals Amendment Act of 1986. A person convicted under the Act is subject to an enhancement in sentence if he also has three prior convictions for specified offenses, including burglary. See 924(e)(1). The defendant contended that his Missouri conviction for second-degree burglary did not qualify as a "burglary" under the Act.

The Eighth Circuit disagreed, holding that "burglary" in 924(e) means "burglary" however a state chooses to define it. Taylor, 495 U.S. at 579. On review, the Supreme Court recognized the nationwide sentencing inequities which could result from allowing such a course, and held that the word burglary "must have some uniform definition independent of the labels employed by the various States' criminal codes." Id. at 592. The Court then crafted a uniform, generic definition of burglary, including each of the base elements. Thus, after Taylor, a defendant's conviction for "burglary...