United States v. Victor De La O-Gallegos, 663 F. App'x 827

Defendant Victor De La O‑Gallegos, a Mexican national, pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).
He had a 2006 Georgia conviction for two counts of financial transaction card theft (O.C.G.A. § 16‑9‑31) and was removed in 2013 after a separate improper entry conviction; he reentered and was arrested in 2015.
The PSR applied a base offense level of 8 and an eight‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) because the Georgia conviction was treated as an aggravated felony (a theft offense under 8 U.S.C. § 1101(a)(43)(G)).
Defendant objected, arguing the Georgia statute’s provision for obtaining/withholding a card without consent lacks the generic theft element requiring intent to deprive the owner of rights and benefits of ownership.
The district court found the Georgia statute divisible and, using the modified categorical approach, concluded the charging documents showed conviction under § 16‑9‑31(a)(1), which Georgia courts interpret to require intent to retain the card against the cardholder’s possessory rights—matching the generic theft definition.
The court imposed an 18‑month sentence (after a downward departure in criminal history); the Eleventh Circuit affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Defendant’s Georgia conviction for financial transaction card theft is an "aggravated felony" (theft offense) for U.S.S.G. § 2L1.2(b)(1)(C)	The Government (plaintiff) argued the conviction qualifies as an aggravated felony because the conviction was under § 16‑9‑31(a)(1), which requires intent to retain the card contrary to the cardholder’s possessory rights and thus fits the generic theft definition	De La O‑Gallegos argued the charged offense (obtaining/withholding a card without consent) lacks the generic theft element of intent to deprive the owner of rights and benefits of ownership, so it is not an aggravated felony	The court held the statute is divisible; applying the modified categorical approach, the conviction was under § 16‑9‑31(a)(1), and Georgia caselaw equates withholding/retaining a card in opposition to possessory rights with the generic theft intent—so the enhancement was proper

United States v. Ayala‑Gomez, 255 F.3d 1314 (11th Cir.) (standard of review for eligibility of prior conviction as predicate)
United States v. Contreras, 739 F.3d 592 (11th Cir.) (categorical approach explanation)
Descamps v. United States, 570 U.S. 254 (2013) (divisible statutes and the modified categorical approach)
Mathis v. United States, 579 U.S. 500 (2016) (documents permissible under the modified categorical approach)
United States v. Estrella, 758 F.3d 1239 (11th Cir.) (scope of documents under modified categorical approach)
Vassell v. U.S. Att’y Gen., 825 F.3d 1252 (11th Cir.) (BIA definition of "theft offense" in immigration context)
Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir.) (application of BIA theft definition)
United States v. Estrada, 777 F.3d 1318 (11th Cir.) (divisibility and multiple crimes analysis)
United States v. Christopher, 239 F.3d 1191 (11th Cir.) (sentence length counts for aggravated felony even if suspended)