Aggravated Felonies



 
 

§ B.59 2. Other Motor Vehicle Offenses

 
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AGGRAVATED FELONY - CRIME OF VIOLENCE - AUTO THEFT
Nguyen v. Holder, 571 F.3d 524 (6th Cir. Jul. 2, 2009) (California conviction of auto theft, in violation of what is now codified at Penal Code 487(d)(i) (any person who (1) takes possession; (2) of an automobile; (3) owned or possessed by another; (4) by means of trespass and (5) with intent to permanently deprive the owner of such property; and (6) carries the automobile away), does not constitute a "crime of violence" under 18 U.S.C. 16(b), and is therefore not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of rendering the defendant deportable, because the theft offense does not by its nature, involve a "substantial risk" that physical force against the person or property of another may be used in the course of committing the offense).

BIA

UNAUTHORIZED USE OF MOTOR VEHICLE - CRIME OF VIOLENCE
Matter of Brieva, 23 I. & N. Dec. 766 (BIA June 7, 2005) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code § 31.07(a), is a crime of violence under 18 U.S.C. § 16(b), and therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
RECEIPT OF STOLEN PROPERTY - ATTEMPT
Matter of Bahta, 22 I. & N. Dec. 1381 (BIA Oct. 4, 2000) (Nevada conviction for attempted possession of stolen property, in violation of Nevada Revised Statutes § 193.330 and 205.275, is a conviction for an attempted "theft offense (including receipt of stolen property)," and therefore an aggravated felony, within the meaning of INA § 101(a)(43)(G) and (U), 8 U.S.C. 1101(a)(43)(G) and (U)).
AUTO THEFT - THEFT OFFENSE
Matter of VZS, 22 I. & N. Dec. 1338 (BIA Aug. 1, 2000) (en banc) (California conviction for unlawful driving and taking of a vehicle in violation of California Vehicle Code § 10851 is a aggravated felony "theft offense" under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) since "theft" for aggravated felony purposes is defined as a taking of property whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if the deprivation is less than total or permanent).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).

First Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - VEHICULAR
United States v. Earle, 488 F.3d 537 (1st Cir. Jun. 6, 2007) (Massachusetts conviction of assault and battery with a dangerous weapon, a motor vehicle, in violation of Mass. Gen. Laws ch. 265, 15A(b), constituted a crime of violence, for illegal re-entry sentencing purposes, since the elements of the statute require the use of force against the person of another).

Third Circuit

VEHICULAR HOMICIDE - CRIME OF VIOLENCE
Francis v. Reno, 269 F.3d 162 (3d Cir. Oct. 16, 2001) (Pennsylvania conviction of vehicular homicide, in violation of 75 Pa.C.S.A. § 3732, did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since misdemeanor vehicular homicide was not a "felony" under the INA, and even if conviction could be converted into felony, it did not involve a substantial risk of physical force required to make it an "aggravated felony").

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Vargas-Soto, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Texas conviction for evading arrest using a motor vehicle, in violation of Tex. Penal Code Ann. 38.04(b)(1), qualified as an aggravated felony crime of violence); following United States v. Sanchez"Ledezma, 630 F.3d 447, 451 (5th Cir. 2011) (same), cert. denied, ___ U.S. ___, 131 S.Ct. 3024, 180 L.Ed.2d 851 (2011).
AGGRAVATED FELONY - THEFT - UNAUTHORIZED USE OF A VEHICLE
Serna-Guerra v. Mukasey, ___ F.3d ___, 2008 WL 2228868 (5th Cir. 2008) (Texas conviction for the unauthorized use of a vehicle, in violation of Tex. Pen. Code 31.07,constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for removal purposes, but "we urge and recommend that that precedent should be reconsidered and overruled by our en banc court."), reluctantly following Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007); United States v. Galvan- Rodriguez, 169 F.3d 217 (5th Cir. 1999). http://www.ca5.uscourts.gov/opinions%5Cunpub%5C07/07-60634.0.wpd.pdf
JOYRIDING - CRIME OF VIOLENCE
United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 31.07(a), unauthorized use of a motor vehicle, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).
DRIVE-BY SHOOTING - FACILITATION - CRIME OF VIOLENCE
Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).
UNAUTHORIZED USE OF MOTOR VEHICLE - CRIME OF VIOLENCE
United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).
AUTO THEFT - CRIME OF VIOLENCE
United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc) (Texas conviction of simple motor vehicle theft was not a crime of violence under U.S.S.G. § 4B1.2(a)(2) for federal firearm offense sentencing purposes, since the indictment did not suggest the offense involved a serious potential risk of injury to a person; note that this definition of "crime of violence" differs from the definition contained in 18 U.S.C. § 16(b)), vacating in part 275 F.3d 468 (5th Cir. Dec. 10, 2001), and overruling United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000).
AUTO THEFT - CRIME OF VIOLENCE
United States v. Charles, 275 F.3d 468 (5th Cir. Dec. 10, 2001) (conviction of vehicle theft was "crime of violence" under special guideline for offense presenting "serious potential risk of injury to another," different from illegal re-entry Guidelines, governing enhancement to sentence for ex-felon in possession of firearm conviction), vacated in part upon en banc rehearing, 301 F.3d 309 (5th Cir. July 31, 2002).
UNAUTHORIZED USE OF VEHICLE - CRIME OF VIOLENCE
United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000), cert. denied, 532 U.S. 988, 121 S.Ct. 1640 (2001) (Texas conviction of unauthorized use of a vehicle, in violation of Texas Penal Code § 31.07, was a "crime of violence" as that term is defined in U.S.S.G. § 4B1.2, which is different from the language of 18 U.S.C. § 16), overruled by United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc).
UNAUTHORIZED USE OF MOTOR VEHICLE - CRIME OF VIOLENCE
United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. Mar. 4, 1999), cert. denied, 528 U.S. 837 (1999) (conviction of unauthorized use of motor vehicle is "crime of violence," and therefore an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. 16(b), for purposes sentence enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).

Seventh Circuit

BURGLARY - AUTO - ATTEMPT
United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111 (2002) (Illinois conviction of burglary of vehicle with intent to commit theft constituted "attempt," under INA § 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to commit a "theft offense" under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for purposes of enhancing under U.S.S.G. § 2L1.2(b)(1)(A) an illegal re-entry sentence, since conduct admitted by defendant in plea was sufficient; since neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle, the offense was aggravated felony attempt).
POSSESSION OF STOLEN VEHICLE - RECEIVING STOLEN PROPERTY
Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. Apr. 11, 2001) (Illinois conviction for possession of a stolen motor vehicle, in violation of 625 ILCS § 5/4-103(a)(1) a "theft offense," under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), and therefore constituted an "aggravated felony" rendering noncitizen deportable).

Eighth Circuit

AUTOMOBILE HOMICIDE - CRIME OF VIOLENCE
United States v. Gonzalez-Lopez, 335 F.3d 793 (8th Cir. July 14, 2003) (Utah conviction of automobile homicide, in violation of Utah Code Ann. § 76-5-207(1), held to be a crime of violence for purposes of illegal reentry 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1), since the Utah offense has as an element the use of physical force against another, irrespective of the predicate offense's mens rea element; no argument made that specific offense of conviction did not require use of force).
VEHICULAR HOMICIDE - CRIME OF VIOLENCE
Omar v. INS, 298 F.3d 710 (8th Cir. Aug. 5, 2002) (Minnesota conviction of criminal vehicular homicide, in violation of M.S.A. § 609.21, subd. 1(4), was a crime of violence, and therefore was an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes).

Ninth Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " EVADING AN OFFICER
United States v. Martinez, 771 F.3d 672 (9th Cir. Nov. 14, 2014) (California conviction under Vehicle Code 2800.2 for vehicle flight from a pursuing peace officer, was a "violent felony" under the ACCA's residual clause, 18 U.S.C. 924(e)(2)(B)(ii)).
AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Snyder, 643 F.3d 694 (9th Cir. Jun. 30, 2011) (Oregon conviction for high speed flight, in violation of ORS 811.540(1), is a violent felony for purposes of the Armed Career Criminal Act), following Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011).
AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).
AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
Nieves-Medrano v. Holder, ___ F.3d ___, 2010 WL 27339 (9th Cir. Jan. 7, 2010) (California conviction of carjacking, in violation of Penal Code 215, with sentence to three years imprisonment, constituted a categorical aggravated felony "crime of violence" under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F): "Although the definition in U.S.S.G. 2L1.2 differs slightly from that used for immigration cases, 8 U.S.C. 1101(a)(43)(F) ("crime of violence" defined by 18 U.S.C. 16), there is no meaningful distinction for purposes of this petition."); following United States v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008) ("[W]e hold that a conviction under Cal.Penal Code 211 could only result from conduct that constitutes a 'crime of violence' for purposes of U.S.S .G. 2L1.2.").
AGGRAVATED FELONY - THEFT - JOYRIDING
Penuliar v. Ashcroft, 528 F.3d 603 (9th Cir. Jun. 10, 2008) (California conviction for violation of California Vehicle Code 10851, unlawful driving of a motor vehicle, is not categorically an aggravated felony "theft" offense for immigration purposes, since that statutes includes accessories after the fact), following United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007)
AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING OF A MOTOR VEHICLE
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. Dec. 27, 2007) (California conviction of unauthorized driving of a vehicle, in violation of Vehicle Code 10851(a), constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G); rejecting an argument that the statute does not define a categorical theft offense because it prohibits aiding and abetting as well as direct commission of the act, and rejecting respondent's argument that applying the modified categorical approach, there is no evidence in the record of conviction showing he committed a theft offense), following Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 818, 823 (2007) (holding the generic term "theft offense" in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), includes the crime of aiding and abetting, and vacating a Ninth Circuit decision holding that 10851(a) was not a categorical theft offense).
AGGRAVATED FELONY - THEFT OFFENSE - UNAUTHORIZED DRIVING
United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007) (9-6 en banc) (California conviction for unlawful driving or taking of vehicle, under Penal Code 10851(a), did not categorically qualify as an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for purposes of enhancement of illegal reentry sentence, since the offense includes accessory after the fact, which is not listed in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(G) as an aggravated felony inchoate offense).
VEHICULAR MANSLAUGHTER - CRIME OF VIOLENCE
Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16, and so does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v. INS, 252 F.3d 1018 (9th Cir. June 5, 2001), and cases therein cited as no longer good law in light of Leocal v Ashcroft, 125 S.Ct. 377 (Nov. 9, 2004).
THEFT OF MEANS OF TRANSPORTATION - THEFT OFFENSE
Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code § 10851(a), was not a theft offense, within the meaning of INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the statute and charge both were overbroad with respect to the definition of a theft offense by encompassing not only substantive theft offenses but aiding and abetting them as well).
VEHICULAR ASSAULT - CRIME OF VIOLENCE
United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. Nov. 12, 2003) (Colorado conviction of reckless vehicular assault, in violation of Colo.Rev.Stat. § 18-3-205(1)(a), is a "crime of violence" for the purposes of the U.S.S.G.).
CONTROLLING STOLEN MEANS OF TRANSPORTATION - THEFT OFFENSE
Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of controlling anothers means of transportation, knowing or with reason to believe it had been stolen, in violation of Arizona Revised Statute § 13-1814(A)(5), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the other property) (alternative holding).
FAILURE TO RETURN LOST MEANS OF TRANSPORTATION - RECEIVING STOLEN PROPERTY
Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of failure to return lost means of transportation, in violation of Arizona Revised Statute § 13-1814(A)(4), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the property) (alternative holding).
UNAUTHORIZED USE OF MEANS OF TRANSPORTATION - THEFT OFFENSE
Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of unauthorized use of a means of transportation, in violation of Arizona Revised Statute § 13-1814(A)(2), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the property) (alternative holding).
POSSESSION OF STOLEN VEHICLE - RECEIVING STOLEN PROPERTY
Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (Arizona conviction of possession of a stolen vehicle, in violation of A.R.S. § 13-1802, did not fall within the generic definition of "theft offense" necessary to constitute an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the Arizona statute was overbroad, with respect to the generic definition, because (a) it prohibited "theft of services," which are not considered property and therefore fall outside the generic definition of theft, (b) it prohibited aiding and abetting, and (c) it "is a divisible statute, four subparts of which do not require intent.").
UNLAWFUL USE OF VEHICLE - THEFT OFFENSE
United States v. Perez-Corona, 295 F.3d 996 (9th Cir. July 8, 2002) (Arizona conviction for unlawful use of a means of transportation, or joyriding, in violation of A.R.S. § 13-1803, did not constitute a "theft offense," since there was no element of any intent to deprive the owner of his or her property (even if the deprivation was less than permanent), and the conviction was thus not an "aggravated felony" under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of enhancing a sentence under U.S.S.G. § 2L1.2(b)(1)(A) for a conviction of illegal re-entry after deportation).

Tenth Circuit

POSSESSION OF STOLEN PROPERTY - ATTEMPT
United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sept. 13, 2001), cert. denied, 122 S.Ct. 1180 (2002) (Utah conviction for knowingly attempting to receive or transfer a stolen motor vehicle, in violation of Utah Code § 41-1a-1316 (1953), was an "aggravated felony" under INA § 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for enhancement purposes under U.S.S.G. § 2L1.2(b)(2) of an illegal re-entry sentence).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED FLEEING
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence under 18 U.S.C. 16(b), for purposes of triggering deportation under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it involves a substantial risk that intentional violent force will be used in the commission of the offense).

 

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