U.S. v. Corona-Sanchez: 9th Circuit Rules That a Sentence Enhancement for Recidivism...

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

U.S. V. CORONA-SANCHEZ: 9TH CIRCUIT RULES THAT A SENTENCE ENHANCEMENT FOR RECIDIVISM DOES NOT COUNT TOWARDS THE ONE-YEAR SENTENCE REQUIREMENT FOR AN "AGGRAVATED FELONY" THEFT CONVICTION
Immigrants' Rights Update, Web Edition, July 15, 2002

The United States Court of Appeals for the Ninth Circuit has issued an en banc decision finding that a defendant who was convicted of petty theft and sentenced to two years' incarceration as a result of an enhancement due to a prior conviction was not convicted of an "aggravated felony."

The ruling finds that the California statute under which the defendant was convicted is not a "theft" offense under section 101(a)(43)(G) of the Immigration and Nationality Act because the statute criminalizes conduct that would not constitute "theft" under the "generic" definition of the term. In addition, the defendant cannot be considered to have received a sentence of one year or longer for the offense, because the statute only authorizes imprisonment for a maximum of six months. While the defendant actually received a two-year sentence, that was due to an enhancement of the sentence because of a prior offense. The court found that the enhancement cannot be counted towards the sentence for this offense. The ruling was made in a criminal case where the issue was whether the prior offense was an aggravated felony so as to trigger an enhancement of the defendant's sentence for illegal entry to the U.S. following deportation.

The defendant in this case, a Mr. Corona-Sanchez, is a Mexican national who first entered the U.S. in 1987 or 1988, at the age of 13. He subsequently collected a series of criminal convictions for various offenses. The offense at issue in this case involved his attempt to shoplift a 12-pack of beer and a pack of cigarettes from a liquor store in 1994. He was convicted, and, because of a previous conviction for attempted petty larceny of a liquor store, he was sentenced for petty theft with a prior conviction.

In 1997 Corona-Sanchez pled guilty to being found in the U.S. after having been deported. The district court that heard his case found that his prior petty theft offense constituted an "aggravated felony" under INA section 101(a)(43)(G) and imposed a 77-month sentence under federal sentencing guidelines. The instant case arises on appeal from that decision.

In reviewing the decision, the court of appeals first addressed the issue of what methodology to use to define the term "theft offense" as used in INA section 101(a)(43)(G). In this case, because the crime of "theft" developed from the common law crime of "larceny," the court found this common law definition to be the starting point, but not the end point, in the analysis. Rather, the common law definition must be considered in conjunction with statutory history of the term, to arrive at a "generic concept" of the term. The court noted that in Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court rejected both placing sole reliance on the common law definition and relying on the specific definition used by a state, in determining whether a state crime meets a federal criminal definition. Instead, the court followed the approach of the Seventh Circuit in Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001), where the court arrived at a "modern, generic definition" of a "theft offense" based on both the common law and subsequent statutory usage. Under this definition, a theft offense 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." 246 F.3d at 1009.

The court then sought to determine whether the offense under which Corona-Sanchez was convicted comes within this definition. Because the record in this case nowhere reflects the specific California statute under which Corona-Sanchez was convicted of petty theft, the court of appeals had to undertake an extensive examination of California law in order to identify the statute. Ultimately, based on the description of the offense in the presentence report and the general structure of California theft statutes, the court concluded that Corona-Sanchez must have been convicted under California Penal Code section 484(a). Examining this provision, the court found that it is significantly broader than the federal common law definition of a "theft" offense. A defendant can be convicted under section 484(a) without having taken or exercised control over the property in question. Aiding and abetting a theft violates section 484(a) even if not specifically charged. And offenses not encompassed in the federal definition, such as theft of labor and solicitation of false credit reporting, are also encompassed within section 484(a). Although Corona-Sanchez received a sentence enhancement for "Petty Theft with Prior Jail Term for a Specific Offense," neither the underlying conviction nor the enhancement narrow the scope of the conviction to necessarily come within the generic definition of a "theft" offense. For this reason, the court concluded that the conviction cannot be considered an aggravated felony under INA section 101(a)(43)(G).

In addition, the Ninth Circuit found that the conviction is not encompassed within the definition of INA section 101(a)(43)(G) for another independent reason: it does not carry a sentence of incarceration for at least one year. While it is true that Corona-Sanchez was sentenced to two years' incarceration, that sentence was only the result of an enhancement for a prior offense. The court concluded that such an enhancement does not relate to the commission of the offense at issue and does not alter the elements of that offense. Because the offense at issue carries a maximum sentence of only six months, the court concluded that the conviction cannot be considered an aggravated felony. The court therefore remanded the case to the district court for resentencing consistent with its opinion.

U.S. v. Corona-Sanchez, No. 98-50452 (9th Cir. Jun. 6, 2002) (en banc).