United States v. Lugo-Tovar
713 F. App'x 774
10th Cir.2017Background
- Defendant Jose Angel Lugo-Tovar convicted of illegal reentry under 8 U.S.C. § 1326(a).
- Presentence report calculated a Guidelines range of 33–41 months, based in part on an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for a prior aggravated-felony conviction.
- The enhancement rested on an Oklahoma conviction for receipt of stolen property (Okla. Stat. tit. 21 § 1713), treated as a "theft offense (including receipt of stolen property)."
- No party objected to the presentence report in district court; defendant raised procedural challenges for the first time on appeal.
- Defense counsel filed an Anders brief seeking permission to withdraw, concluding any appeal would be frivolous; defendant filed a pro se response seeking to preserve Johnson/Mathis and to abate pending Dimaya.
- The Tenth Circuit reviewed for plain error and concluded the prior Oklahoma offense matched the generic theft offense, so the eight-level enhancement was properly applied; appeal dismissed and counsel permitted to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court plainly erred in treating prior Oklahoma receipt conviction as an "aggravated felony" (theft) triggering an 8-level §2L1.2 enhancement | Lugo-Tovar: preserve challenge under Johnson/Mathis to classification of prior conviction (argues it may not be an aggravated felony) | Court/Prosecution: Oklahoma receipt-of-stolen-property elements match the generic theft offense, so enhancement proper | No plain error; enhancement applies because state offense matches generic theft elements |
| Whether Johnson (vagueness) or Mathis (means vs. elements) require vacatur or reclassification | Lugo-Tovar: sought to preserve claims citing Johnson/Mathis | Court: Johnson addresses vagueness of a residual clause; Mathis addresses element-vs-means issues — neither implicated here | Johnson and Mathis do not affect this enhancement; district court did not plainly err by not considering them |
| Whether appeal should be abated pending the Supreme Court's decision in Dimaya | Lugo-Tovar: requested abeyance awaiting Dimaya decision | Court/Prosecution: §16(b) residual clause at issue in Dimaya was not applied here | Denied; Dimaya unlikely to affect Lugo-Tovar because §16(b) residual clause was not used |
| Whether counsel may withdraw under Anders after concluding appeal frivolous | Defense counsel: moved to withdraw under Anders | Lugo-Tovar: filed pro se filings but did not identify nonfrivolous issues | Granted; court agrees all appeal points are frivolous and dismisses appeal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (permitting counsel to seek leave to withdraw when appeal is frivolous)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (addressing vagueness of a residual clause)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for categorical analysis)
- United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016) (categorical approach to compare state offense elements to generic offense)
- United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012) (definition of generic theft offense elements)
- United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) (interpretation of "theft offense" in Guidelines context)
- Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (court will not craft arguments for pro se litigants)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court decision addressing constitutional validity of a statutory residual clause)