United States v. Rivera
2011 U.S. App. LEXIS 19493
| 9th Cir. | 2011Background
- Rivera, an alien, has at least ten prior offenses and has been removed from the U.S. ten times, most recently on December 5, 2008.
- Less than six months after removal, Rivera was arrested attempting to reenter from Mexico.
- On January 29, 2010, Rivera pled guilty to unlawful reentry under 8 U.S.C. § 1326 and was sentenced to 37 months (low end of Guidelines).
- The district court increased Rivera’s offense level by eight under § 2L1.2(b)(1)(C), treating prior deportations after a conviction for an aggravated felony as a qualifying predicate.
- The aggravating felony definition includes theft for which the term of imprisonment is at least one year, under 8 U.S.C. § 1101(a)(43)(G).
- Rivera had three prior felony petty theft convictions under Cal. Penal Code §§ 484(a) and 666, with concurrent 16-month terms and a third offense carrying two years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. petty theft is an aggravated felony under § 1101(a)(43)(G). | Rivera argued the petty theft convictions do not categorically match the federal theft predicate. | Rivera argued Corona-Sanchez controls and bars reliance on petty theft as aggravated felony. | No; the court held the predicate can be met via recidivist sentence under Rodríguez and a modified categorical approach shows a generic theft conviction. |
| Whether a recidivist sentence can be considered in determining a prior conviction’s status as a predicate offense. | Rivera contends that recidivist enhancements should not affect predicate analysis. | Rivera contends Rodriquez does not disturb Corona-Sanchez, so recidivism cannot elevate the offense. | Yes; recidivist sentence may be considered as part of the sentence prescribed by law for the latest offense. |
| Whether the state petty theft plea can be shown to involve a generic theft offense via the modified categorical approach. | Statutory language broadens state theft beyond the federal definition, so not a match. | Documentation shows Rivera pleaded guilty to generic theft, satisfying the federal definition. | Yes; the charging documents and plea establish a generic theft offense for which the sentence was at least one year. |
Key Cases Cited
- United States v. Rodriguez, 553 U.S. 377 (2008) (recidivist sentence may be considered in predicate analysis under ACCA/INA framework)
- United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (limited-match approach; recidivism and broader statute require modified approach)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to compare facts of conviction to the generic offense)
- Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009) (state petty theft broader than federal theft; supports modified categorical approach)
- United States v. Strickland, 601 F.3d 963 (9th Cir. 2010) (en banc; confirms use of modified categorical approach for broader state statutes)
- United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (definition of record of conviction for modified categorical approach (en banc))
- Shepard v. United States, 544 U.S. 13 (2005) (requires narrowing documents to support elements of the generic offense)