F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 13 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4045
EDGAR VASQUEZ-FLORES,
also known as Marcos Igali-Valdez,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:00-CR-355-C)
Submitted on the briefs:
Theodore R. Weckel, Springville, Utah, for Defendant-Appellant.
Paul M. Warner, United States Attorney, Diana Hagen, Assistant United States
Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.
Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY ,
Senior Circuit Judge.
BRORBY , Senior Circuit Judge.
Edgar Vasquez-Flores pleaded guilty to one count of illegal reentry into the
United States after deportation in violation of 8 U.S.C. § 1326. The district court
determined his sentence with reference to section 2L1.2(b)(1)(A) of the United
States Sentencing Guidelines (USSG) and sentenced him to forty-six months’
imprisonment. Mr. Vasquez-Flores appeals from the court’s application of the
sentencing enhancement imposed pursuant to § 1326(b)(2). Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we affirm. 1
We review questions of law related to the application or interpretation of
the Sentencing Guidelines de novo. United States v. Frias-Trujillo , 9 F.3d 875,
876 (10th Cir. 1993). The pertinent guideline mandates a sixteen-level penalty
increase if the defendant was deported after an aggravated felony conviction.
See USSG § 2L1.2(b)(1)(A). The commentary to the guideline defines
“aggravated felony” by reference to 8 U.S.C. § 1101(a)(43). See id. commentary
at n.1. There, “aggravated felony” is defined in relevant part as “a theft offense
(including receipt of stolen property) . . . for which the term of imprisonment [is]
at least one year.” § 1101(a)(43)(G). The phrase “theft offense (including
receipt of stolen property)” is not further defined.
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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Mr. Vasquez-Flores argues that “theft offense” means only “theft” and
that “theft offense” must be limited to those crimes containing all the elements
of theft under Utah state law. He thus asserts that his prior conviction for
attempted receiving or transferring a stolen motor vehicle in violation of U.C.A.
§ 41-1a-1316 is merely a lesser-included offense of theft under Utah state law
and, therefore, not a “theft offense” that qualifies as an “aggravated felony.”
The district court rejected this argument, and we affirm for two reasons.
First, as the Seventh Circuit has pointed out,
by choosing the words “theft offense” rather than just “theft,” and by
expressly including “receipt of stolen property,” Congress signaled
that it was not presenting an exhaustive list of offenses (i.e. just theft
and receipt); rather with its word choices, Congress indicated that the
phrase ought to be given a broad read. See [United States v.]
Corona-Sanchez , 234 F.3d [449] at 455 (“If the word ‘offense’ does
not restrict or clarify the word ‘theft,’ then it must broaden it.”).
Hernandez-Mancilla v. INS , 246 F.3d 1002, 1008 (7th Cir. 2001). Like the
Seventh Circuit, we conclude that “theft offense (including receipt of stolen
property)” includes more crimes than just “theft.” Further, we have already
rejected the view that whether a particular crime constitutes an aggravated felony
under the definitions referred to in USSG § 2L1.2(b)(2) depends upon how the
crime is characterized under state law. See Frias-Trujillo , 9 F.3d at 876 n.1
(rejecting argument because “it would mean that a person convicted of exactly
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the same activity would, or would not, receive a sentence enhancement,
depending on how the particular statute characterized the crime.”).
The United States argues, 2
and we agree, that in interpreting this sentencing
guideline, we should adopt a uniform generic definition of “theft offense
(including receipt of stolen property).” Cf. Taylor v. United States , 495 U.S. 575,
598 (1990) (adopting uniform definition for the purpose of determining whether
a defendant’s sentence could be enhanced under 18 U.S.C. § 924 due to a prior
burglary conviction ). How “theft offense (including receipt of stolen property)”
should be defined for purposes of sentencing enhancement has been examined by
the Fifth, Seventh, and Ninth Circuits, as well as by the Board of Immigration
Appeals (BIA).
The Fifth Circuit simply defined “theft offense” by referencing Black’s
Law Dictionary and adopting its broad definition of “theft:” “the act of
stealing.” United States v. Dabeit , 231 F.3d 979, 983 (5th Cir. 2000), cert.
denied , 121 S. Ct. 1214 (2001). The Ninth Circuit went a bit farther, examining
the development of the crime of theft and noting that it arose from an amalgam of
common-law crimes. United States v. Corona-Sanchez , 234 F.3d 449, 453-54
2
Although the United States did not raise this argument to the district court,
we “may affirm the district court on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court.” United States v. Edwards , 242 F.3d 928, 935 (10th Cir. 2001)
(quotation omitted).
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(9th Cir. 2000). Consequently, that court determined that the definition should
derive from the Model Penal Code (MPC) because the MPC reflects a modern
understanding of the crime of theft and employs an expansive definition. Id.
at 454-55. The court adopted the MPC’s definition of “theft,” which sets forth
eight types of theft offenses, including receipt of stolen property and
unauthorized use of automobiles and other vehicles. Id. at 455.
The BIA looked not only to the MPC but also to the United States Code
and various state codes in defining the phrase “theft offense (including receipt of
stolen property).” In re Bahta , Interim Dec. 3437, 2000 WL 1470462 (BIA
Oct. 4, 2000). The BIA noted that the modern view of theft treats as equivalent
those who knowingly receive and those who knowingly possess stolen property.
Id. It determined that use of the parenthetical “(including receipt of stolen
property)” was intended to clarify that the term “theft offense” did not require
proof that the offender was involved in the actual taking of the property. Id.
The BIA concluded that the whole definition thus included not only theft but also
the “category of offenses involving knowing receipt, possession, or retention of
property from its rightful owner” without consent. Id.
The Seventh Circuit examined both the MPC and Black’s Law Dictionary
as well as the definition developed in Bahta to arrive at its generic definition.
The court held that,
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distilled to its essence, . . . the modern, generic, and broad definition
of the entire phrase “theft offense (including receipt of stolen
property)” 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.
Hernandez-Mancilla , 246 F.3d at 1009. We find the Seventh Circuit’s reasoning
to be persuasive and we adopt this definition.
The Utah statute under which Mr. Vasquez-Flores was previously
convicted is entitled, “Receiving or transferring stolen motor vehicle . . .,” and it
prohibits the knowing receipt , transfer, or possession of a stolen vehicle. § 41-
1a-1316. In the plea agreement, Mr. Vasquez-Flores pleaded guilty to attempting
to knowingly receive or transfer a stolen motor vehicle in violation of this statute,
admitting he was knowingly “in possession of a stolen vehicle.” R. Doc. 22,
Ex. 1 at 2. Because Mr. Vasquez-Flores’s conviction entailed a knowing exercise
of control over another’s property without consent, it fits the definition of “theft
offenses (including receipt of stolen property)” described above. His prior
conviction thus constitutes an “aggravated felony” under § 1326(b)(2), and the
district court properly enhanced his sentence under USSG § 2L1.2(b)(1)(A).
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
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