UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. JOSE ANGEL LUGO-TOVAR, De fendant - 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-Tov ar is a criminal defe ndant who appeals his sentence. But his counsel has determ ined 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 ag ree with defense

* The parties do not request oral argu ment, 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 judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted 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 Court2 counsel that all potenti al grounds for appeal wo uld be friv olous. We therefore dismiss the appeal and gr ant defense counse l’s motion to withdraw. I. Background Mr. Lugo-Tovar was conv icted of illegal reentr y. 8 U.S.C. § 1326(a). The district court thus co nsidered what sentence to impose with the input of a probation officer. The probation officer prepared a presentence report, which arrived at a guidelin e range of 33 to 41 mont hs. No one objected to the report, and the distri ct court agreed with the probation officer’s calculation of the guidelin e range. This guideline range was based in part on an eight-level enhancement for a prior conviction of an aggravated felony. The offense underl ying that conviction wa s receipt of stolen property under Okla homa law (Okla. Stat. tit. 21 § 1713). Mr. Lugo-Tovar challenges the sentence on procedural grounds. II. Standard of Review He did not object in di strict court to any proc edural 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 (1 0th Cir. 2014). III. The Arguments Involving Johnson and Mathis In his pro se re sponse to the Anders brief, Mr. Lugo -Tovar seeks to preserve his right to cha llenge characterization of his past offense as an3 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 arti culate an argume nt 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 atto rney in constructing arguments and search ing 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. Unite d States, ___ U.S.

___, 135 S. Ct. 2551, 2563 (2015); Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2247-48 ( 2016). These issu es do not bear any obvious relevance to the sentencing of Mr. Lugo-Tovar. He may be referring to the eigh t-level enhancement for a prior conviction of an aggravated felony. See U.S.S.G. § 2L1.2( b)(1)(C) (2015). The 2015 guideline co mmentary defines the term “aggravated fe lony based on 8 U.S.C. § 1101(a)(43).” See id . comment 3. There th e term “aggravated felony” is defined to incl ude a theft offense such as the receipt of stolen property. 8 U.S.C. § 1101(a)( 43). In light of this definition , we consider4 whether the district court plainly erre d by treating Mr. Lugo-Tovar’s crime as a theft offense. We must determine wh ether the elements of the generic offense match the state crime underlying Mr. Lugo-Tova r’s past conviction. See United States v. Maldonado-Palma , 839 F.3d 1244, 1246-47 (10th Cir. 2016). The past conviction involved receipt of st olen property, and the 2015 guidelines specify an eight-level enhancem ent for a past felony conviction of a “theft offense (including receipt of stol en property).” See p. 3, above. This term is defined broadl y 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 st olen property, an Oklaho ma 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 prop erty, 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 (inc luding receipt of stolen property)”—are5  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 (1 0th Cir. 2012). We cannot see how any conduct satisfy ing the state offense’s elements would fall outside the generic offense. Because the state offense matches the generic form of the offense, an eight-leve l enhancement applies. See id

. This enhancement would not implicat e a question of vagueness (the subject of Johnson ) or suggest the ne ed to differentiate between a crime’s means and elements (the subject of Mathis ). See United Stat es v. Snyder , 871 F.3d 1122, 1130 ( 10th Cir. 2017) (disti nguishing between Johnson claims and claims involving classifi cation 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 contribut ed to the sentence enhancement, not if the enhancement resulted fr om the enumerated-offens e 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 appe al 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 (Sep t. 29, 2016). We decline this request beca use the eventual opinion in Dimaya will6 probably not affect Mr. Lugo-Tovar. In Dimaya , the Supreme Court granted certiorari on the constitutiona l validity of the residual clause in 8 U.S.C. § 16(b). Secti on 16(b) was not a pplied 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 requ est to abate the appeal, and grant defense counsel’s request to withdraw.

Entered for the Court

Robert E. Bacharach Circuit Judge