The appellant, Jesus Juarez-Gonzalez, has been unlawfully present in the United States after deportation,. To that the presentence investigation report. 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 US Court of Appeals vacated defendant’s sentence and remanded for resentencing.
A person commits 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].
Aggravated felony includes theft, particularly, receipt of stolen property, and burglary [8 U.S.C.S. § 1101(a)(43)(G)]. Under U.S. Sentencing Guidelines Manual § 2L1.2 the base offense level for illegally reentering the United States shall be increased by eight levels if the delinquent has a prior aggravated felony conviction.
Whether district court erred in treating three prior convictions for third-degree theft as “aggravated felonies.”
Referring to 8 U.S.C.S. § 1101(a)(43)(G)The U.S. Court of Appeals defined the term “theft offense as “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.”
The appellate court stated that “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.”