Criminal Defense of Immigrants

(F)  Attempted Theft.  Where the record of conviction clearly shows that the offense was committed with intent to commit a theft offense (i.e., a plea to “burglary with intent to commit larceny”), then the burglary conviction may be found to constitute an attempt to commit an aggravated felony theft offense.[369]  This may also be true where the plea is to burglary with attempt to commit some other aggravated felony (i.e., burglary with intent to sell drugs).  However, since most state statutes appear to prohibit burglary with intent to commit theft “or any felony,” counsel can argue that the non-theft underlying offense does restrict to the categorical nature of the burglary so it cannot be considered aggravated felony burglary.[370]

[369] 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 an illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), 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).  See also § § 19.14, supra, 19.94, infra.

[370] See § 16.23, supra.