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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Mauricio E. Solorzano-Cruz, 

Defendant. 

No. 4: 15-CR-1853-TUC-JAS 

ORDER 

 Pending before the Court is a Report and Recommendation from United States 

Magistrate Judge Jacqueline Rateau (Doc. 49) and Objections from the Government 

(Doc. 52) and the Defendant (Doc. 53). That Report recommends denying the Motion to 

Dismiss Indictment (Doc. 33) filed by Defendant. The parties do not object to the 

majority of the Report, and this Court adopts those unobjected-to portions. 28 U.S.C. § 

636. The Government objects to the Report’s conclusion that the prior crime of 

conviction is not a crime of violence, while Defendant objects to the Report’s conclusion 

that the prior crime of conviction is an aggravated felony offense because it falls under 

the generic definition of theft. The Court reviews those portions of the Report de novo. 

The Court finds that the Report correctly concluded the crime was not a crime of 

violence, but that the Texas theft statute criminalizes behavior outside the scope of the 

generic theft offense. Therefore, Defendant’s Motion to Dismiss Indictment is 

GRANTED. 

 

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1. Crime of violence 

The Government argues that Defendant committed a crime of violence because the 

Information under which Defendant was charged indicates that he “intentionally, 

knowingly, and recklessly cause[d] bodily injury to [victim] by striking [victim] with a 

brick.”1

 However, as the Report correctly pointed out, a person can recklessly strike 

another – i.e., by throwing a brick through a window with the intent to break the window 

without striking a person, but with reckless disregard of whether a person was inside. 

Because the Information does not specify the mens rea of the crime and includes reckless 

striking, the underlying crime is not a crime of violence. See Fernandez-Ruiz v. 

Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006). 

2. Aggravated Felony 

 The Report concluded that the underlying conviction was an aggravated felony 

constituting a proper basis of removal because it qualified as a generic theft offense 

pursuant to 8 U.S.C. § 1101(a)(43)(G). To determine whether Defendant was convicted 

of a generic crime 

we employ the categorical approach. That is, we compare the elements of 

the statute forming the basis of the defendant's conviction with the elements 

of the ‘generic’ crime. The prior conviction qualifies as [the generic 

offense] only if the statute's elements are the same as, or narrower than, 

those of the generic offense. A state offense qualifies as a generic 

offense—and therefore, in this case, as an aggravated felony—only if the 

full range of conduct covered by [the state statute] falls within the meaning 

of the generic offense. 

United States v. Alvarado-Pineda, 774 F.3d 1198, 1202 (9th Cir. 2014).2

 In the Ninth 

Circuit, the generic theft offense has four elements: (1) the taking of (2) property (3) 

 

1

 The Court notes that it is considering the Information because the Report correctly concluded that the Texas statute at issue is divisible, and, therefore, applied the modified categorical approach. See United States v. Bustos-Ochoa, 704 F.3d 1053, 1056-

57 (9th Cir. 2012). 

2

 Unless otherwise indicated, internal quotations and citations have been omitted 

throughout this Order. 

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without consent (4) with the intent to deprive the owner of rights and benefits of 

ownership. Id. The Texas theft statute under which Defendant was convicted states in 

relevant part that 

(a) A person commits an offense if he unlawfully appropriates property 

with intent to deprive the owner of property. 

(b) Appropriation of property is unlawful if: 

(1) it is without the owner's effective consent; 

(2) the property is stolen and the actor appropriates the property 

knowing it was stolen by another; or 

(3) property in the custody of any law enforcement agency was 

explicitly represented by any law enforcement agent to the actor as 

being stolen and the actor appropriates the property believing it was 

stolen by another. 

Tex. Penal Code Ann. § 31.03. Therefore, if any subsection criminalizes behavior 

outside the scope of the generic federal theft offense, Defedant’s conviction does not 

qualify as an aggravated felony. As an initial matter, subsection (b)(2) seems to fit 

squarely in the federal definition of stolen property, and Defendant does not argue 

otherwise. 

The main point of argument concerns whether appropriating property “without the 

owner’s effective consent” is coterminous with the Ninth Circuit’s definition of “without 

consent.” Texas defines effective consent as consent given by a person legally authorized 

to act for the owner, but specifically states that consent is not effective if it is: induced by 

deception or coercion; given by a person the actor knows is not legally authorized to act 

on the owner’s behalf; given by a person who is unable to make reasonable property 

dispositions because of youth, mental disease or defect, or intoxication; given solely to 

detect commission of an offense; or given by a person whose advanced age and 

diminished capacity to make rational decisions are known by the actor. Tex. Penal Code 

Ann. § 31.01(3). For example, in at least one case, a Texas defendant was convicted 

under § 31.03(3) because she operated a pyramid scheme – taking $5,000 and promising 

a return of $20,000 contingent upon continued recruitment of other individuals. King v. 

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State, 174 S.W.3d 796, 811-12 (Tex. Crim. App. 2005). The $5,000 initial “gift” was 

given with consent, but that consent was not effective because the defendant deceptively 

promised an unrealistic return. Id. 

The Ninth Circuit has held that similar statutory schemes do not fit within the 

generic federal definition of theft, and underlying convictions, therefore, do not qualify as 

aggravated felonies. The California theft statute, for example, has recently been 

confirmed as being overbroad – that is, it categorizes behavior outside the scope of the 

federal theft offense. See Lopez-Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015) 

(“California's theft statute, however, expressly criminalizes certain conduct—such as 

theft of labor, false credit reporting, and theft by false pretenses—that do not satisfy the 

generic definition.”). It appears that both the Texas theft statute and the California theft 

statute criminalize similar behavior: theft by deception in Texas, and theft by false 

pretenses in California. In both cases, a person can be convicted under the statute for 

behavior that would not be captured by the Ninth Circuit’s interpretation of theft, i.e., by 

deceptively inducing someone to give money while intending to appropriate ownership of 

that money. For that reason, the Texas statute (like the California statute) is overbroad, 

and therefore, Defendant’s prior conviction does not count as a generic theft offense. 

As the Report notes, this Order is at odds with a Fifth Circuit case that concluded 

the Texas theft offense was fully captured by the generic federal theft offense. See 

United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. 2014). However, where the 

Fifth Circuit appears to equate “consent” with “effective consent,” the Ninth Circuit 

draws a distinction between the two. As such, Defendant’s Motion to Dismiss Indictment 

(Doc. 33) is GRANTED. 

Dated this 18th day of November, 2016. 

Honorable James A. Soto 

United States District Judge 

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