Carlos Rendon v. Eric Holder, Jr.
2014 U.S. App. LEXIS 16254
| 9th Cir. | 2014Background
- Carlos Alberto Rendon, an LPR, was convicted in California (1996) of second-degree burglary under Cal. Penal Code § 459 for entering a locked vehicle with intent to commit “grand or petit larceny or any felony.”
- INS charged Rendon with being removable as having committed an aggravated felony; initial proceedings found him removable and denied relief including cancellation of removal.
- On remand the IJ and then the BIA concluded the § 459 conviction qualified as an attempted theft aggravated felony under 8 U.S.C. § 1101(a)(43)(U)/(G) by applying the modified categorical approach.
- The question presented: whether § 459 is divisible (so the modified categorical approach is permissible) given the statute’s disjunctive phrasing "grand or petit larceny or any felony."
- The Ninth Circuit reviewed de novo whether the conviction qualified as an aggravated felony in light of Descamps v. United States and related precedent.
- Court held § 459 is indivisible as a matter of law because California law does not require jury unanimity as to which specific offense (theft vs. non-theft felony) the defendant intended; therefore the modified categorical approach was impermissibly applied and Rendon’s conviction cannot be treated as an attempted theft aggravated felony.
Issues
| Issue | Rendon’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 459 is divisible for Descamps/modified-categorical purposes | § 459’s disjunctive language allows dividing into alternative elements (theft vs. any felony) so modified categorical approach applies | Disjunctive phrasing supports treating alternatives as separate elements permitting modified categorical use | Held: § 459 is indivisible — disjunctive "or" here lists alternative means, not alternative elements; jury unanimity as to a particular underlying felony is not required under California law |
| Whether Rendon’s § 459 conviction qualifies as an attempted theft aggravated felony under 8 U.S.C. § 1101(a)(43)(U)/(G) | Because BIA applied modified categorical approach to find intent to commit theft, conviction can qualify as attempted theft | Conviction can be treated as attempted theft based on plea/record | Held: Because § 459 is indivisible and broader than generic attempted theft, conviction cannot be classified as an attempted theft aggravated felony |
| Applicability of Descamps to immigration aggravated-felony analysis | Descamps should govern and limit modified categorical to divisible statutes | Government argued prior Ninth Circuit approaches permitted broader use | Held: Descamps controls; modified categorical approach is available only for divisible statutes in immigration context |
| Burden on petitioner to show non-aggravated-felony status when record inconclusive | Rendon argued indivisibility + overbreadth entitles him to relief without modified categorical inquiry | Government argued inconclusive record precludes relief under Ninth Circuit cases | Held: If statute is indivisible and broader than the federal offense, petitioner meets burden; modified categorical cannot rescue the government on an indivisible statute |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach permissible only for divisible statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for prior-offense comparisons)
- Richardson v. United States, 526 U.S. 813 (1999) (distinction between elements requiring jury unanimity and alternative means)
- Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (discussion of statutes listing multiple alternative elements)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (applying categorical approach in immigration context)
- United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (pre-Descamps Ninth Circuit precedent abrogated in part by Descamps)
- Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008) (holding § 459 reaches non-theft crimes; pre-Descamps use of modified categorical approach)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (addressing categorical analysis in immigration removability context)