768 F.3d 437
5th Cir.2014Background
- Rodriguez-Salazar pleaded guilty to being an alien present after deportation and conceded a prior Texas felony theft conviction under Tex. Penal Code § 31.03(a).
- Texas § 31.03 defines theft as appropriation of property “without the owner’s effective consent,” and treats consent induced by deception or coercion as ineffective; § 31.02 consolidates several theft-related offenses.
- The district court enhanced Rodriguez‑Salazar’s sentence under the sentencing guidelines (§ 2L1.2(b)(1)(C)) because an aggravated felony includes a “theft offense (including receipt of stolen property).”
- The Fifth Circuit’s prior formulation of generic theft defines it as taking or exercising control over property without consent with intent to deprive the owner of ownership benefits (Burke v. Mukasey).
- Rodriguez‑Salazar argued the Texas statute criminalizes conduct (theft by deception/coercion) that falls outside the generic federal definition of theft and thus should not qualify as an aggravated felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas § 31.03(a) (theft with “owner’s effective consent” vitiated by deception/coercion) categorically fits the generic federal theft offense | Texas theft by deception/coercion is equivalent to fraud and thus falls outside generic theft | The generic theft definition includes obtaining or exercising control over property without effective consent, covering deception-induced lack of effective consent | The court held § 31.03(a) fits within the generic theft definition and qualifies as an aggravated felony; sentence enhancement affirmed |
Key Cases Cited
- Burke v. Mukasey, 509 F.3d 695 (5th Cir. 2007) (articulates Fifth Circuit’s generic-theft definition used here)
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (discussed but not controlling on theft-vs.-fraud distinction)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach guidance for comparing state offenses to generic federal definitions)
- Taylor v. United States, 495 U.S. 575 (1990) (instructs use of Model Penal Code, state codes, and treatises to determine generic offense meaning)
- Hernandez-Mancilla v. I.N.S., 246 F.3d 1002 (7th Cir. 2001) (supports inclusion of theft-by-deception within a broad, contemporary definition of theft)