(B)  Ninth Circuit Authority.  In United States v. Corona-Sanchez, the Ninth Circuit expressly held that the California theft statute was divisible with respect to the aggravated felony definition of a theft offense,[374] because it included aiding and abetting, whereas the aggravated felony theft definition did not.[375]  In Penuliar v. Ashcroft,[376] the Ninth Circuit expanded the safe haven created by United States v. Corona-Sanchez, holding that California Penal Code § 484 was not an aggravated felony “theft” offense, based on the possibility that the defendant might have been convicted for aiding and abetting, rather than commission of the substantive theft offense, “even if that [aiding and abetting] theory is not specifically charged.” Corona-Sanchez excludes a crime from the definition of “theft” offense[377] if an aider and abettor may stand convicted as the principal even if the charge of conviction does not specifically refer to the underlying theory of aiding and abetting.

 

            In Londono-Gomez v. INS,[378] the Ninth Circuit found that aiding and abetting was not a separate offense, and the BIA cited that decision and distinguished it from misprision of a felony several times after the aggravated felony statute was created.  Although Londono dealt with an earlier version of the statute, the current federal aiding and abetting statute[379] explicitly “punishes as a principal one who aids or abets” the commission, arguing that the omission of the verbs “aiding” and “abetting” in the removal statute indicates that Congress meant to exclude them, like solicitation.  The government might argue that, since aiders and abettors are known to be “punished as principals,” Congress did not believe it was necessary expressly to include aiding and abetting in the statute.  On the other hand, Congress specified aiding and abetting in the “reason to believe” ground of inadmissibility,[380] and in a number of other grounds of deportation and inadmissibility, see Appendix F, infra, but did not specify attempt or conspiracy, thus giving rise to the argument that it meant to exclude aiding and abetting from the aggravated felony deportation ground.

 

            In Vidal,[381] the Ninth Circuit recognized that the California definition of aiding and abetting includes “encouragement,” which includes “promotion and instigation.” A person may be considered an aider and abettor if s/he acts “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense.”[382]  This language is not included in the federal definition of aiding and abetting, and one can therefore argue that the California definition of aiding and abetting is broader than the federal definition, and thus creates a divisible statute with respect to the federal definition.

 

            In Vidal, the Ninth Circuit neglected to explain how the federal definition of aiding and abetting addresses the issue of “encouraging.”  It only relies on the language of jury instructions related to aiding and abetting under 18 U.S.C. § 2(a) and the decision in United States v. Barnett, 667 F.2d 835 (9th Cir. 1982). However, the Barnett decision’s inclusion of the words “otherwise encourages” in its definition of “abettor” is only in passing. The facts of the case do not specifically relate to an aider-abettor who only “encouraged.” The defendant in Barnett gave information to the co-defendant as to where the co-defendant could obtain certain illegal substances. Arguably, this action was actual aiding and abetting, something more than just passively supporting the co-defendant in perpetrating the crime.[383]

 

            The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft,[384] in which it had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense.  In vacating the decision, the Ninth Circuit recognized that the California theft statute includes aiding and abetting offenses.  The court also recognized that the absence of codefendants in the charging paper or in the same criminal case is not dispositive.  There is no requirement under California law that codefendants be charged in the same complaint, or even in the same case number.  Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency.  It is not necessarily true that all perpetrators are arrested or charged, or even identified.  Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting without the verdict being overturned as an inconsistent verdict.[385]

 

            Furthermore, immigration courts cannot consider the record of conviction of a codefendant as part of the record of conviction of the defendant, for the purpose of determining the nature of the defendant’s conviction.[386]  See § 4.32, infra.

 

            The sentencing guidelines for illegal re-entry cases were amended on November 1, 2001 to add aiding and abetting to attempt and conspiracy as predicate convictions to trigger a sentence enhancement.[387]

 

            The Ninth Circuit’s decision in United States v. Vidal[388] is limited to sentencing issues in illegal re-entry cases in which the sentencing occurred after November 1, 2001.  The immigration-related “aiding and abetting” decisions of the Ninth Circuit[389] still control in immigration cases as well as in illegal-re-entry cases not applying the sentencing guidelines effective during the 2001-2003 window.

 

            Arguably, Corona-Sanchez should apply regardless of the sentencing date, since the distinguishing factor in Vidal was merely the addition of a comment to the sentencing guidelines, which arguably contradicted Congressional intent. The Sentencing Reform Act did not authorize Guideline commentary.[390]  In Stinson, the Supreme Court held that Guideline commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.  As a matter of statutory construction, the Ninth Circuit has often held Congress did not intend to include in the aggravated felony definition inchoate crimes that were not mentioned expressly.[391]  Congress knew how to include “aiding and abetting” offenses in the aggravated felony definition, but chose instead to include only attempts and conspiracies.[392]  As a result, the commentary’s blanket inclusion of aiding and abetting offenses is inconsistent with the aggravated felony definition. Vidal relies on Rodriguez-Rodriguez,[393] which interpreted whether burglary is a crime of violence for purposes of U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii). The 16-level crime of violence enhancement at issue in Rodriguez-Rodriguez is not dependent on the statutory definition of “aggravated felony” under INA § 101(a)(43). As such, the Guideline commentary need not conform with the definition of aggravated felony. The panel in Vidal adopted Rodriguez-Rodriguez’ language about the Guideline commentary without noting that Rodriguez did not involve the statutory definition of aggravated felony. Since Rodriguez-Rodriguez did not involve a comment that was inconsistent with the aggravated felony definition, Stinson was not applicable.

 

            In Vidal, the Ninth circuit did not apply Stinson to the commentary to see whether the aiding and abetting comment exceeded the scope of the Commission’s authority because it thought that Rodriguez-Rodriguez controlled and this issue does not appear to have been raised. If the Ninth Circuit applied Stinson, there is a reasonably good argument that the statutory construction cases like Levya, Penuliar and Coronado-Durazo control as to congressional intent, which arguably limits what the commentary can say, especially since in Leocal[394] the Supreme Court held the aggravated felony statute means the same in civil and criminal cases.[395]

[374] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[375] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[376] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005).

[377] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[378] Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983).

[379] 18 U.S.C. § 2.

[380] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

[381] United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005).

[382] People v. Beeman, 35 Cal.3d 547, 560 (1984).  See also People v. Prettyman, 14 Cal.4th 248 (1996).

[383] Thanks to Kathy Brady for this argument.

[384] Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated, 417 F.3d 1022 (9th Cir. Aug. 2, 2005).

[385] See Model Penal Code § 2.07(7)(1985) (“An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.”).

[386] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the person’s codefendant).

[387] U.S.S.G. § 2L1.2, Application Note 4, which provided: “4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.”

[388] United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence).

[389] Penuliar v. Ashcroft, 395 F.3d 1037, 1041 (9th Cir. 2005); United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002).

[390] Stinson v. United States, 113 S.Ct. 1913, 1917 (1993).

[391] See, e.g., Leyva-Licea v INS, 187 F.3d 1147 (9th Cir. 1999) (involving solicitation offenses); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (involving aiding and abetting).

[392] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[393] United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir Jan. 5, 2005).

[394] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004).

[395] Thanks to Dan Kesselbrenner.

AGGRAVATED FELONY - THEFT OFFENSE - AUTO THEFT - AIDING AND ABETTING
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851(a), constituted theft offense aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the crime of "aiding and abetting" a theft offense is included within the substantive offense).