2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-8-2010

Vanegas-Martinez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3400

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3400

___________

JOSE RONALD VANEGAS MARTINEZ

a/k/a Jose Vanegas,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A037-010-358)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 6, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed October 8, 2010)

___________

OPINION

___________

PER CURIAM

Jose Ronald Vanegas-Martinez, a citizen of El Salvador, petitions for review of the 

Board of Immigration Appeals=s (ABIA@) dismissal of his appeal. For the following 
2

reasons, we will deny the petition for review.

I.

The petitioner entered the United States in 1980 as a lawful permanent resident. 

He was convicted in New Jersey in 2003 of third-degree attempted theft and received a 

sentence of probation. In 2006, he pled guilty to fourth-degree criminal sexual conduct 

and received a sentence of one year in prison. His probation for the 2003 theft conviction 

was also revoked, and he was re-sentenced to three years in prison (to be served 

concurrently with the criminal sexual conduct sentence). 

Thereafter, the petitioner was charged as removable under 8 U.S.C. ''

1227(a)(2)(A)(iii) and 1227(a)(2)(A)(ii). The Immigration Judge (AIJ@) found the 

petitioner removable under 8 U.S.C. ' 1227(a)(2)(A)(ii), for having committed two 

crimes of moral turpitude unrelated to each other. The petitioner applied for cancellation 

of removal pursuant to 8 U.S.C. ' 1229b(a), claiming that he was eligible for such relief 

because he had not been convicted of an aggravated felony. However, the IJ concluded 

that, because the petitioner had been sentenced to three years= imprisonment for the 2003 

theft conviction, he was an aggravated felon and thus ineligible for cancellation of 

removal. See 8 U.S.C. ' 1101(a)(43)(G) (defining an aggravated felony as, among other 

things, a theft offense with a term of imprisonment greater than one year). 

On appeal to the BIA, the petitioner argued that his theft conviction does not 

constitute an aggravated felony because he was only sentenced to probation. He asserts 
3

that he was sentenced to three years in prison for violating his probation, not for the 

underlying offense. The BIA rejected this argument, concluding that under Supreme 

Court precedent and New Jersey state law, A[t]he imposition of a sentence of 

imprisonment following revocation of probation is a modification of the original 

sentence, not a punishment for the conduct leading to revocation, and therefore must be 

considered part of the actual sentence imposed.@ (A.R. 3.) It thus determined that the 

three-year prison sentence that was imposed after the petitioner=s probation was vacated 

made the theft conviction an aggravated felony. Consequently, the petitioner was 

ineligible for cancellation of removal. 

The petitioner now seeks this Court=s review of the BIA=s decision. The 

government opposes the petition. 

II.

We have jurisdiction over the petition for review under 8 U.S.C. ' 1252(a)(1), and 

exercise de novo review over the conclusion that the petitioner is an aggravated felon. 

See, e.g., Bobb v. Att=y Gen., 458 F.3d 213, 217 (3d Cir. 2006). The petitioner renews his 

argument that the three-year prison sentence was punishment for violating the terms of his 

probation and not punishment for the original theft offense. He thus asserts that he is not 

an aggravated felon and is eligible for cancellation of removal. 

This Court considers the term of imprisonment that was actually imposedCand not 

the sentence that was statutorily possibleCto determine, for purposes of 8 U.S.C. '
4

1101(a)(43)(G), whether the Aterm of imprisonment [was] at least one year.@ See United 

States v. Graham, 169 F.3d 787, 790-91 (3d Cir. 1999). Although the petitioner was 

initially sentenced to probation for the theft conviction, a change of judgment as to that 

conviction was entered on August 3, 2006, stating that the petitioner=s Aprior sentence . . . 

is hereby vacated@ and that the petitioner was to be imprisoned for Aa term of three (3) 

years to run concurrent with@ his sentence for the criminal sexual conduct conviction. 

(A.R. 82-83.) 

The BIA correctly stated that a sentence imposed after a probation violation is 

generally considered to be a modification of the original sentence, and should, therefore, 

be treated as the term Aimposed@ for the conviction. See, e.g., United States v. CompianTorres, 320 F.3d 514, 516 (5th Cir. 2003); United States v. Hidalgo-Macias, 300 F.3d 

281, 284-85 (2d Cir. 2002); United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001). 

New Jersey follows this general rule. See N.J. Stat. Ann. ' 2C:45-3(a)(4)(b) (AWhen the 

court revokes a suspension or probation, it may impose on the defendant any sentence that 

might have been imposed originally for the offense of which he or she was convicted.@); 

State v. Kearns, 922 A.2d 813, 815 (N.J. Super Ct. 2007) (A[A] sentence imposed after 

revocation of probation should be viewed as focusing on the original offense rather than 

on the violation of probation as a separate offense.@) (internal citation omitted). Thus, 

despite the petitioner=s arguments to the contrary, the BIA committed no error when it 
5

treated the three-year prison sentence as the punishment for the theft offense.1 The 

petitioner was therefore properly considered to be an aggravated felon under 8 U.S.C. '

1101(a)(43)(G), which in turn makes him statutorily ineligible for cancellation of 

removal. See 8 U.S.C. ' 1229b(a)(3). 

Based on the foregoing, we will deny the petition for review. We deny as moot the 

government=s motion to summarily dismiss the petition.

 

1 We have reviewed the cases upon which the petitioner relies and conclude 

that they are distinguishable from the present case. See, e.g., United States v. GuzmanBera, 216 F.3d 1019 (11th Cir. 2000); State v. Baylass, 553 A.2d 326 (N.J. 1989); State v. 

Molina, 553 A.2d 332 (N.J. 1989).