Criminal Defense of Immigrants

(A)  Supreme Court Decision.   In Gonzales v. Duenas-Alvarez,[145] the Supreme Court held that the term “theft offense,” in the aggravated felony definition,[146] includes the crime of “aiding and abetting” a theft offense.  The nearly unanimous court reasoned that when Congress used the term “theft offense,” it meant it in “the generic sense in which the term is now used in the criminal codes of most States.”[147]  The court found that every “American jurisdiction [has] eliminated the distinction” between aiders and abettors and those who commit the substantive offense.[148]

The court therefore concluded:

Since criminal law now uniformly treats [aiders and abettors and principals] alike, the generic sense in which the term theft is now used in the criminal codes of most states, Taylor, 495 U.S. at 598, 110 S.Ct. 2143, covers such “aiders and abettors” as well as principals.  And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term “theft” in the federal statute.[149]

In so holding, the court overruled Ninth Circuit decisions holding to the contrary.[150]  At least one other circuit had already determined that aiding and abetting was included in at least some aggravated felony categories.[151]

                The Duenas decision appears to be limited to convictions of aiding and abetting, or accessory before the fact, since the court reasoned that those convictions are indistinguishable from convictions of the substantive offenses under all state laws.  The same cannot be said of other non-substantive offenses, such as solicitation, misprision of a felony, facilitation, and attempt.  Therefore, convictions of these non-substantive offenses, that cannot be said to be equivalent to convictions of the substantive offense, would not be included within the aggravated felony definitions following the reasoning in Duenas.  It is a closer question how the non-substantive offense of conspiracy would be treated under the Duenas principles, since the sentence for conspiracy to commit an offense is often as great as, or even greater than, the sentence for the substantive offense.

[145] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820  (Jan. 17, 2007).

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

[147] Gonzales v. Duenas-Alvarez, 127 S.Ct. at 818 (emphasis deleted), citing Taylor v. United States,  495 U.S. 575, 598 (1990).

[148] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding and abetting statutes.

[149] Ibid.

[150] E.g., Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005); Huerta-Guevara v. Ashcroft, 321 F.2d 883, 887 (9th Cir. Mar. 4, 2003); United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. June 6, 2002) (en banc) (California theft statute held to be divisible partly because it included aiding and abetting, which was not listed with attempt and conspiracy as aggravated felony collateral offenses)

[151] James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction of aiding and abetting bank fraud, in violation of 18 U.S.C. § § 2, 1344, constituted an offense “involving” fraud or deceit, since the elements of aiding and abetting bank fraud “necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful.”; “Significantly, ‘the aiding and abetting statute, 18 U.S.C. § 2, does not define a separate crime,’ but rather provides another means of convicting someone of the underlying offense.” (Footnote omitted.)).