### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40972

UNITED STATES OF AMERICA Plaintiff-Appellee
v. JESUS JUAREZ-GONZALEZ Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas

2:10-CR-420-1

Before REAVLEY, GARZA, and GRAVES, Circuit Judges. PER CURIAM: * Jesus Juarez-Gonzalez (Juarez) pleaded guilty to one count of having been found unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). The presentence investigation report (P S R) calculated a base offense level of eight u n d e r USSG § 2L1.2(a). The PSR recommended an eight-level enhancement under USSG § 2L1.2(b)(1)(C) on the basis of Juarez’s three prior convictions for third-degree theft in Washington in 1998. The PSR recommended a three-level decrease for accept a nce of U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 14, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-40972 Document: 00511665202 Page: 1 Date Filed: 11/14/2011No. 10-40972

responsibility pursuant to USSG § 3E1.1. A total offense leve l of thirteen and

a criminal history category of IV put Juarez’s sentence in a range of twenty-four to thirty months. Juarez did not object to the PSR. On September 16, 2010, the district court sentenced Juarez to twenty-four months in the custody of the Federal Bureau of Priso n s , with three years of supervised release. 1 Subsequently, Juarez appealed, asserting that the dis trict c ourt c o m mitt e d p l ain

error by treating the three prior Washington convictions a s “ a ggr avat e d f elo nies” under USSG § 2L1.2(b)(1)(C). STANDARD OF REVIEW This court reviews the district court’s interpretation or application of the Sentencing Guidelines d e novo and its factual findings for clear error. United States v. Trujillo , 502 F

. 3 d 3 53, 356 (5th Cir. 2007) (citing United States v. Huerta , 182 F.3d 361, 364 (5th Cir. 1999). If a fac t u a l finding is plausible in light of the record as a whole, it is no t c l e a rl y erroneous. Huerta , 182 F.3d at 364. “Where, as here, the defendant fails to object to his sentence during sentencing, we review the District Court's sentencing decision for plain error .” United States v. Ronquillo , 508 F.3d 744, 748 (5th Cir. 2007). To establish plain
error, the defendant must show an error that has not been affirmatively waived, that is clear or obvious, and that affects his substantial ri ghts. See Puckett v. United States , 129 S.Ct. 1423, 1429, 556 U.S. 129, 173 L.Ed. 2 d 2 6 6 (2009).

DISCUSSION I
. Whether the district court committed reversible plain error when it treated Juarez’s prior Washington convictions for third-degree theft as “aggravated felonies” under USSG § 2L1.2(b)(1)(C).

The dis tri ct cour t judge indi cat ed that she had inte nded to se nten ce Juare z to thir ty 1
mo nths , but mi ss pok e a nd im pos ed a t we nty- fou r mo nth se nten ce. 2 Case: 10-40972 Document: 00511665202 Page: 2 Date Filed: 11/14/2011No. 10-40972

Juarez asserts that the district c o u rt e rred in concluding his prior Washington convictions for third-degree theft qualified as “aggravated felonies” under USSG § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(G). Juarez asserts that Washington’s definition of theft encompasses conduct broader than the generic d e finition of theft including theft of services and theft by deception. Fu rth e r , Juarez asserts that the state court documents in the record fail to establish any of the convictions in the record as a conviction qualif ying as an aggravated felony. Juarez also asserts that this plain error affected his substantial rights. The Government asserts that the inclusion of theft of services in the Washington theft statute does not result in a broader definition than the generic definition adopted by this c o u rt. The Government further asserts that Juarez fails to meet his burden to demonstrate that the lack of court documents affects the public reputation, fairness, and integrity of the judicial proceedings. Under § 1326(a), the statutory maximum sentence for illegal reentry with

no enhancements is two years in p ri s on. 8 U.S.C. § 1326(a). See also United States v. Zavala-Sustaita , 214 F.3d 601, 603 (5th Cir. 2000). If a defen dant illegally reenters after a conviction for three or more m i s d e m e a nors involving drugs, crimes against the person, or both, or a felony and subsequent removal, the maximum sentence increases to 10 years. 8 U.S.C. § 1326(b)(1). I f a defendant illegally reenters after a conviction for an aggravated f e lony and subsequent removal, the m a xi m um sentence increases to 20 years. 8 U.S.C. § 1326(b)(2). The degree of sentence enhancement depends on the provisions of § 2L1.2, the Guideline that i m plements § 1326. Zavala-Sustaita , 214 F.3d at 603. Section 2L1.2 provides that the base offense leve l f o r i llegally reentering the United S t a t e s s h a l l be increased by eight levels if the defendant has a prior

a ggravated felony conviction. USSG § 2L1.2(b)(1)(C). The term aggrava t e d felony is defined in 8 U.S.C. § 1101(a)(43), without regard to the date of

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conviction for the aggravated felony. USSG § 2L1.2, comment. (n.3(A)). That statute, in turn, defines aggravated felony to include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." § 1101(a)(43)(G) (i n t e r n al footnote omitted). Because the Guidelines do not further define a "theft offense," this court

uses "a common sense approach” to define the enumerated crime by its “generic, contemporary meaning. " United States v. Torres-Diaz , 438 F.3d 529, 536 (5th Cir. 2006) (using the common sense approach to define aggravate d a ssault); United States v. Argumedo-Perez , 326 F. App'x 293, 295- 9 6 ( 5 th Cir. 2009)(unpublished)(using the common sense approach to define theft). To establish the gen eric , c o nt e m p or ary m e aning of theft, this court may look, among oth er things, to the Model Penal Code, federal statutes, modern state codes, dictionaries, and treatises. See Torres-Diaz , 438 F.3d at 536; United States v. Velez-Alderete , 569 F.3d 541, 544 (5th Cir. 200 9). The Model Penal Code § 223.6 provides that a person is guilty of theft by receiving stolen property:

if h e p urposely receives, retains, or disposes of movable property of another knowing that it has been s t o l e n, or believing that it has probably been stole n , unless the property is received, retained, or disposed with purpose to r estore it to the owner. "Receiving" means acquiring possession, control or title, or lending on the security of the property. Model Penal Code § 223.6(1). More recently, this court generically d e fined the phrase "theft offense (including receipt of stolen property)" under § 1101(a)(43)(G) to mean "a taking of property or an exercis e o f 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." Nolos v. Holder , 611 F.3d 279,

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285 (5th Cir. 2010) (an immigration case); see United States v. Blancas-Rosas , 414 F. App’x 634, 636 (5th Cir. 2011) (unpublished) (using the Nolos definition in a direct criminal appeal involving the application of the e i ght-level enhancement under § 2L1.2(b)(1)(C)). In the instant case, the p r ob a tion officer considered the following convictions for purposes of the § 2 L1.2(b)(1)(C) enhancement: (1) third-degree theft in Washington in June 1998, for which Juarez was sentenced to one year in jail suspended; (2) third-degree theft in Washington in July 1998, for which Juarez was sentenced to one year in jail suspended; and (3) third-degr ee theft in Washington in October 1998, for which Juarez was sentenced to one year in jail. See Wash. Rev. Code Ann. § 9A.56.020(1) (1998) (theft), § 9A.56.050 (1998) (theft in the third degree). T o determine whether Juarez's theft convictions constitute aggrav a t e d felony convictions for purposes of the § 2L1.2(b)(1)(C) enhancement, this court

uses the categorical approach. See T o rres-Diaz , 438 F.3d at 536. Under that approach, this court reviews the criminal statut e un der which the defendant was convicted, examining the statutory elements of th e c ri m e, rather than the

un d erlying facts. Id .; Taylor v. United States , 495 U.S. 575, 598-99 (1990). However, if the s t atute at issue is divisible and criminalizes conduct that constitutes a theft offense within the generic definition of theft and conduct that does not, the district court, using the modified categorical approac h , m ay also consider the charging papers, a written plea agreement, a guilty plea transcript, jury instructions, and factual findings m a d e by a trial judge to which the defendant a s sented to determine whether the prior crime constitutes a theft offense. United States v. Gonzalez-Terrazas , 529 F.3d 293, 297-98 (5th Cir . 2 0 0 8) (using the modified categorical approach to determine whether the defendant's prior conviction was a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii)); see also Nolos , 611 F.3d at 285 (u s ing the modified categorical approach to
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d e termine whether the defendant's prior conviction was a theft offen s e f o r purposes of § 1143(a)(43)(G)). In 1998, the year Juarez was convicted o f all three theft offenses, Washington law defined theft as follows:

(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services; or (b) By color or aid of deception to ob t a i n c o n tr ol over the property or services of another or the value thereof, w ith intent to deprive him of such property or services; or (c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him of such property or services.
Wash. Rev. Code Ann. § 9A.56.020(1) (1998). "A person is guilty of theft in the third degree if he commits theft of property or services which does not exceed two hundred fifty dollars in value." Wash. Rev. Code Ann. § 9A.56.050(1) (1998). Theft in the third degree is a gross misdemeanor in Washington. Wash. Rev. Code. Ann. § 9A.56.050(2) (1998). Juarez argues that Washington's theft definition is broader th a n th i s court's generic theft definition because Washington's definition includes theft of services. Juarez’s argument has merit. The Model Penal Code a n d this court have specifically defined theft to mean the deprivation of property. Model Penal C o d e § 223.6(1); Nolos , 611 F.3d at 285. Every subsection of the Washi n gt o n statute, on the other hand, defines theft to include d e privation of property or de p rivation of services. The Government argues that this court has included deprivation of services in its theft definition, citing Nolos in support of its argument. However, Nolos is distinguishable from the instant case. In Nolos , the defendant, a lawful permanent resident, was o r d e r e d removed after he pleaded guilty to theft in violation of § 205.0832 of the 2003

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Nevada Revised Statutes. Nolos , 611 F.3d at 281. On appeal, Nolos argued that § 205.0832 included offenses which did not constitute theft offenses for purposes of § 1101(a)(43)(G), including the offense of which he was convicted. Id

. at 284-85. Section 205.0832, like the statute in the instant case, defined theft to include the deprivation of property and the depriv a t i o n of services. Nev. Rev. St a t

. An n . § 205.0832 (2003). This court reviewed the Nevada single-count information, which stated that Nolos processed phony merchandise refunds to his own credit card while he was employed as a salesperson a t a N o r dstrom's store and charged Nolos with "theft by using services or property of another person entrusted to him or placed in his possession for a limited us e , having a value of $250.00, or more. " Nolos , 611 F.3d at 285. This court concluded that the language in the information tracked th e language in § 205.0832(1)(b) and held that the language in that subsection met its generic definition of theft. Id

. at 285-86. The Noloscourt did not specifically hold that theft includes theft of services. Further, the Ni n th Circuit has rejected the notion that the generic definition of theft includes theft of services. See Huerta-Guevara v. Ashcroft , 321 F.3d 883, 887 (9th Cir. 2003) (citing United States v. Corona-Sanchez , 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc), superseded on other grounds), § 2L1.2, comment (n.4) (2002); but see Abimbola v. Ashcroft , 378 F.3d 173, 178-79 (2d Cir. 2004) (holding that the generic definition of theft includes theft of services). Juarez also argues that Washington's theft definition is broader than this court's generic theft definition because Washington's definition includes theft by deception, which need not occur without the owner's consent, and which encompasses the offense of fraud. Juarez notes that although § 1101(a)(43)(M)
encompasses the offenses of fraud and deceit, the loss to the victim must exceed $10,000 for the offense to qualify as an aggravated felony but that, in 1998, the

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v a l u e a s s i gned to theft in the third degree offenses was $250 dollars or less. Wash. Rev. Code Ann. § 9A.56.050(1) (1998). Juarez's second argument also has merit. In Argumedo-Perez , 326 F. App'x at 294-95, the district court concluded that the defendant's prior Virginia

c o nvi c t i o n for grand larceny was a theft offense under § 1101(a)(43)(G) and i n c r e a s e d the defendant's base offense level by eight levels pursuant to § 2L1.2(b)(1)(C). This court, again in an unpub l ished opinion, analyzed the Virginia common-law definition of larceny, the relevant statutes, the admissible documents, and Virginia case-law and determined that the defendant's grand larceny conviction did not qu a l i fy as a generic theft offense because he could h ave committed the offense with the owner's consent. Id

. at 296-98. I n th e instant case, Juarez could have committed the theft offenses with the o w n e r ' s consent. The Govern m e nt c o nc e de s th at Ju are z ' s s e c o n d argument presents a closer question for this court

. T he Government maintains, however, that even if Juarez has established clear or obvious error, Juarez has failed to establish that the error affected the fairness, integrity or reputation of the judicial proceedings. I n s up p ort of it s ar gu m e nt, the Government relies on an off-the-record discussion between Juar e z ' s trial attorney, the Federal Public Defender (FPD), and the probation officer. Allegedly, the probation officer told the FPD that he could obtain the neces s a ry state court documents but the FPD told the probation officer it was not necessary to do so. This court will not cons i d e r th e Government’s argument regarding evidence outside of the record. See United States v. Bell , 966 F.2d 914, 918 (5th Cir. 199 2). Although under the modified categorical approach the district court was permitted t o review the state court documents to narrow the statute of conviction, the state court documents in the instant case are of little help. The documents submitted by the probation officer, which include a judgment for the

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October 1998 thef

t c o nvi c t ion and municipal docket sheets for all three theft

c o nvictions, do little more than indicate that Juarez was convicted of thir d degree theft on thr e e separate occasions. The documents neither indicate the statutes of conviction nor the facts leading to Juarez's convictions. We agree that the district court committed clear or obvious error when it increased Juarez's offense level by eight levels pursuant to § 2L1.2(b)(1)(C). The Washington statute at issue clearly prohibits theft of property, theft of services, theft by deception, a n d theft by fraud. Wash. Rev. Code Ann. § 9A.56.020(1) (1998). The Model Penal Co d e , o n th e other hand, prohibits only theft of property. Model Penal Code § 223.6(1). This court's generic definition prohibits theft of property and requires that the theft occur without the owner's consent. Nolos , 611 F.3d at 285. Therefore, we must now determine whether this error affected Juarez's substantial rights. See Puckett , 129 S.Ct. at 1 4 29. To show that the error affect e d h i s substantial rights, Juarez must show "there is a reasonable probability that, but for the district court's misapplication of the Guidelines, [he] would have received a lesser sentence." United States v. Dickson , 632 F.3d 186, 191 (5th Cir. 2011). Increasing Juarez's offense level by eight levels resulted in a total offense le v e l o f 1 3

. Based on his total offense level of 13 and his criminal history category of IV, Juarez's advisory guidelines range of imprisonment was 24 to 30 month s . If the district court had imposed a four-level enhancement, Juarez's total offense level would have been nine an d h i s a dvisory guidelines range of imprisonment would have been 12 to 18 months. Because Juarez’s sentencing range and the correct sentencing range did not overlap, the district court’s error necessarily increased Juarez’s sentence and affected his substantial rights

. See United States v. Villegas , 404 F.3d 355, 364 (5th Cir. 200 5).

9 Case: 10-40972 Document: 00511665202 Page: 9 Date Filed: 11/14/2011No. 10-40972 CONCLUSION For these reasons, we VACATE Juarez’s sentence and REMAND for resentencing consistent with this opinion.

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