California Penal Code 484(a) is a divisible statute covering both fraud and theft offenses, which are nearly mutually exclusive. If a fraud victims loss did not exceed $10,000, but a sentence of a year or more was imposed, the government might charge a fraud offense as an aggravated felony under the theft category. The government should be required to prove that the record clearly establishes the elements of theft, the definition of which includes a taking of property without consent. For a useful discussion of the difference between the elements of fraud and theft, see Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). There the Court observed that: When a theft offense has occurred, property has been obtained from its owner "without consent"; in a fraud scheme, the owner has voluntarily "surrendered" his property, because of an "intentional perversion of truth," or otherwise "acted upon" a false representation to his injury. The key and controlling distinction between these two crimes is therefore the "consent" element -- theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained. Id. at 282.      Under this definition Cal. P.C. 484(a) would be held divisible, since it includes both fraud and theft offenses.      The Third Circuit held that where an offense constitutes both theft and fraud, it must meet both requirements in order to be an aggravated felony: a years sentence must be imposed and loss to the victim must be greater than $10,000. Nugent v Ashcroft, 367 F.3d 162 (3rd Cir. 2004).