UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOSE ANGEL LUGO-TOVAR, 

 Defendant - Appellant. 

No. 16-6259 

(D.C. No. 5:16-CR-00065-R-1) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges. 

_________________________________ 

Mr. Jose Angel Lugo-Tovar is a criminal defendant who appeals his 

sentence. But his counsel has determined that all potential appellate 

arguments would be frivolous and moved to withdraw under Anders v. 

California, 386 U.S. 738 (1967). In Anders, the Supreme Court allowed 

defense counsel to request permission to withdraw after determining that 

any appeal would be frivolous. 386 U.S. at 744. We agree with defense 

 

*

 The parties do not request oral argument, and it would not materially 

help us to decide this appeal. As a result, we decide the appeal based on 

the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 8, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

counsel that all potential grounds for appeal would be frivolous. We 

therefore dismiss the appeal and grant defense counsel’s motion to 

withdraw. 

I. Background 

Mr. Lugo-Tovar was convicted of illegal reentry. 8 U.S.C. § 1326(a). 

The district court thus considered what sentence to impose with the input 

of a probation officer. The probation officer prepared a presentence report, 

which arrived at a guideline range of 33 to 41 months. No one objected to 

the report, and the district court agreed with the probation officer’s 

calculation of the guideline range. This guideline range was based in part 

on an eight-level enhancement for a prior conviction of an aggravated 

felony. The offense underlying that conviction was receipt of stolen 

property under Oklahoma law (Okla. Stat. tit. 21 § 1713). Mr. Lugo-Tovar 

challenges the sentence on procedural grounds. 

II. Standard of Review 

He did not object in district court to any procedural irregularities in 

the determination of the sentence. We therefore review Mr. Lugo-Tovar’s 

procedural challenges under the plain-error standard. See United States v. 

Sharp, 749 F.3d 1267, 1291 (10th Cir. 2014). 

III. The Arguments Involving Johnson and Mathis 

In his pro se response to the Anders brief, Mr. Lugo-Tovar seeks to 

preserve his right to challenge characterization of his past offense as an 
3 

aggravated felony, relying on Johnson v. United States, ___ U.S. ___, 135 S. 

Ct. 2551 (2015), and Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 

(2016). Mr. Lugo-Tovar does not articulate an argument for why he 

believes these opinions could alter his sentence, and we cannot act as 

advocates for any party. See Garrett v. Selby Connor Maddux & Janer, 425 

F.3d 836, 840 (10th Cir. 2005) (holding that “the court cannot take on the 

responsibility of serving as the litigant’s attorney in constructing 

arguments and searching the record”). 

Without any direction from Mr. Lugo-Tovar, we do not see how 

Johnson or Mathis could affect the sentence. Johnson addressed a 

vagueness challenge, and Mathis addressed the distinction between the 

means and elements for a given crime. Johnson v. United States, ___ U.S.

___, 135 S. Ct. 2551, 2563 (2015); Mathis v. United States, ___ U.S. ___, 

136 S. Ct. 2243, 2247-48 (2016). These issues do not bear any obvious 

relevance to the sentencing of Mr. Lugo-Tovar. 

He may be referring to the eight-level enhancement for a prior 

conviction of an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C) (2015). 

The 2015 guideline commentary defines the term “aggravated felony based 

on 8 U.S.C. § 1101(a)(43).” See id. comment 3. There the term “aggravated 

felony” is defined to include a theft offense such as the receipt of stolen 

property. 8 U.S.C. § 1101(a)(43). In light of this definition, we consider 
4 

whether the district court plainly erred by treating Mr. Lugo-Tovar’s crime 

as a theft offense. 

We must determine whether the elements of the generic offense 

match the state crime underlying Mr. Lugo-Tovar’s past conviction. See 

United States v. Maldonado-Palma, 839 F.3d 1244, 1246-47 (10th Cir. 

2016). The past conviction involved receipt of stolen property, and the 

2015 guidelines specify an eight-level enhancement for a past felony 

conviction of a “theft offense (including receipt of stolen property).” See 

p. 3, above. This term is defined broadly and is not limited to crimes 

involving theft. United States v. Vasquez-Flores, 265 F.3d 1122, 1124 

(10th Cir. 2001). If the elements of the generic theft offense match the 

elements of receipt of stolen property, an Oklahoma conviction for receipt 

of stolen property would constitute an aggravated felony and trigger the 

eight-level enhancement. 

Under Oklahoma law, the elements of receipt of stolen property were 

that 

 the property had been stolen and 

 the defendant bought or received the property, knowing that it 

has been stolen. 

Gentry v. State, 562 P.2d 1170, 1174 (Okla. Crim. App. 1977). The 

elements of the generic counterpart—“a theft offense (including receipt of 

stolen property)”—are 
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 the taking or control of property without the owner’s consent 

and 

 the criminal intent to deprive the owner of the rights and 

benefits of ownership. 

United States v. Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012). 

We cannot see how any conduct satisfying the state offense’s elements 

would fall outside the generic offense. Because the state offense matches 

the generic form of the offense, an eight-level enhancement applies. See id. 

This enhancement would not implicate a question of vagueness (the 

subject of Johnson) or suggest the need to differentiate between a crime’s 

means and elements (the subject of Mathis). See United States v. Snyder, 

871 F.3d 1122, 1130 (10th Cir. 2017) (distinguishing between Johnson

claims and claims involving classification of a crime as an enumerated 

offense); United States v. Pam, 867 F.3d 1191, 1203 (10th Cir. 2017) 

(stating that relief under Johnson is available only if the unconstitutional 

residual clause contributed to the sentence enhancement, not if the 

enhancement resulted from the enumerated-offense clause). Thus, the 

district court did not plainly err by failing to consider Johnson or Mathis. 

IV. Request for Abeyance 

Mr. Lugo-Tovar also asks us to abate his appeal pending the Supreme 

Court’s decision in Sessions v. Dimaya, cert. granted sub nom. Lynch v. 

Dimaya, ___ U.S. ___, 137 S. Ct. 31, 2016 WL 3232911 (Sept. 29, 2016). 

We decline this request because the eventual opinion in Dimaya will 
6 

probably not affect Mr. Lugo-Tovar. In Dimaya, the Supreme Court 

granted certiorari on the constitutional validity of the residual clause in 

8 U.S.C. § 16(b). Section 16(b) was not applied to Mr. Lugo-Tovar. Thus, 

Dimaya will likely not affect Mr. Lugo-Tovar’s sentence. 

V. Disposition 

We have considered defense counsel’s Anders brief, Mr. LugoTovar’s pro se brief, and the record. Having done so, we conclude that all 

potential appeal points would be frivolous. Accordingly, we dismiss this 

appeal, deny Mr. Lugo-Tovar’s request to abate the appeal, and grant 

defense counsel’s request to withdraw. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge