IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 (PSR)

calculated a base offense level of eight under 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 acceptance of

United States Court of Appeals

Fifth Circuit

F I L E D

November 14, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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responsibility pursuant to USSG § 3E1.1. A total offense level 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 Prisons, with three years of supervised release.1

Subsequently, Juarez appealed, asserting that the district court committed plain

error by treating the three prior Washington convictions as “aggravated felonies”

under USSG § 2L1.2(b)(1)(C). 

STANDARD OF REVIEW

This court reviews the district court’s interpretation or application of the

Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007) (citing United States v.

Huerta, 182 F.3d 361, 364 (5th Cir. 1999). If a factual finding is plausible in

light of the record as a whole, it is not clearly 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 rights. See Puckett v.

United States, 129 S.Ct. 1423, 1429, 556 U.S. 129, 173 L.Ed. 2d 266 (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 district court judge indicated that she had intended to sentence Juarez to thirty 1

months, but misspoke and imposed a twenty-four month sentence.

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Juarez asserts that the district court erred 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

definition of theft including theft of services and theft by deception. Further,

Juarez asserts that the state court documents in the record fail to establish any

of the convictions in the record as a conviction qualifying 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 court. 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 prison. 8 U.S.C. § 1326(a). See also United

States v. Zavala-Sustaita, 214 F.3d 601, 603 (5th Cir. 2000). If a defendant

illegally reenters after a conviction for three or more misdemeanors 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). If a

defendant illegally reenters after a conviction for an aggravated felony and

subsequent removal, the maximum 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 implements § 1326. Zavala-Sustaita, 214 F.3d at 603. 

Section 2L1.2 provides that the base offense level for illegally reentering the

United States shall be increased by eight levels if the defendant has a prior

aggravated felony conviction. USSG § 2L1.2(b)(1)(C). The term aggravated

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) (internal 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 aggravated assault);

United States v. Argumedo-Perez, 326 F. App'x 293, 295-96 (5th Cir.

2009)(unpublished)(using the common sense approach to define theft). To

establish the generic, contemporary meaning of theft, this court may look, among

other 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. 2009).

The Model Penal Code § 223.6 provides that a person is guilty of theft by

receiving stolen property:

if he purposely receives, retains, or disposes of movable

property of another knowing that it has been stolen, or believing

that it has probably been stolen, unless the property is received,

retained, or disposed with purpose to restore 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 defined the phrase "theft offense

(including receipt of stolen property)" under § 1101(a)(43)(G) to mean "a taking

of property or an exercise of 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 eight-level

enhancement under § 2L1.2(b)(1)(C)). 

In the instant case, the probation officer considered the following

convictions for purposes of the § 2L1.2(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-degree 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). 

To determine whether Juarez's theft convictions constitute aggravated

felony convictions for purposes of the § 2L1.2(b)(1)(C) enhancement, this court

uses the categorical approach. See Torres-Diaz, 438 F.3d at 536. Under that

approach, this court reviews the criminal statute underwhich the defendant was

convicted, examining the statutory elements of the crime, rather than the

underlying facts. Id.; Taylor v. United States, 495 U.S. 575, 598-99 (1990). 

However, if the statute 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 approach, may also

consider the charging papers, a written plea agreement, a guilty plea transcript,

jury instructions, and factual findings made by a trial judge to which the

defendant assented to determine whether the prior crime constitutes a theft

offense. United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008)

(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 (using the modified categorical approach to

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determine whether the defendant's prior conviction was a theft offense for

purposes of § 1143(a)(43)(G)).

In 1998, the year Juarez was convicted of 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 obtain control over the

property or services of another or the value thereof, with 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 than this

court's generic theft definition because Washington's definition includes theft of

services. Juarez’s argument has merit. The Model Penal Code and this court

have specifically defined theft to mean the deprivation of property. Model Penal

Code § 223.6(1); Nolos, 611 F.3d at 285. Every subsection of the Washington

statute, on the other hand, defines theft to include deprivation of property or

deprivation 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 ordered

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 deprivation of services. Nev. Rev.

Stat. Ann. § 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 at a Nordstrom'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 use, having a

value of $250.00, or more." Nolos, 611 F.3d at 285. This court concluded that

the language in the information tracked the 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 Nolos court did not specifically hold that theft includes theft of

services.

Further, the Ninth 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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value assigned 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

conviction for grand larceny was a theft offense under § 1101(a)(43)(G) and

increased the defendant's base offense level by eight levels pursuant to §

2L1.2(b)(1)(C). This court, again in an unpublished 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 qualify as a generic theft offense because he could

have committed the offense with the owner's consent. Id. at 296-98. In the

instant case, Juarez could have committed the theft offenses with the owner's

consent.

The Government concedes that Juarez's second argument presents a closer

question for this court. The 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. 

In support ofits argument, the Government relies on an off-the-record discussion

between Juarez's trial attorney, the Federal Public Defender (FPD), and the

probation officer. Allegedly, the probation officer told the FPD that he could

obtain the necessary state court documents but the FPD told the probation

officer it was not necessary to do so. This court will not consider the

Government’s argument regarding evidence outside of the record. See United

States v. Bell, 966 F.2d 914, 918 (5th Cir. 1992).

Although under the modified categorical approach the district court was

permitted to 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 theft conviction and municipal docket sheets for all three theft

convictions, do little more than indicate that Juarez was convicted of third

degree theft on three 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, and theft by fraud. Wash. Rev. Code Ann. § 9A.56.020(1)

(1998). The Model Penal Code, on the 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 1429. To show that the error

affected his 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

level of 13. 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

months. If the district court had imposed a four-level enhancement, Juarez's

total offense level would have been nine and his advisory 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. 2005).

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CONCLUSION

For these reasons, we VACATE Juarez’s sentence and REMAND for

resentencing consistent with this opinion. 

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