NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10010

Plaintiff-Appellee, D.C. No. 2:17-cr-00874-DJH-1 v.

JOSE GOMEZ-AGUILAR, AKA Jose MEMORANDUM* Orlando Gomez-Aguilar,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted April 16, 2019** San Francisco, California

Before: D.W. NELSON, FERNANDEZ, and BEA, Circuit Judges.

Jose Gomez-Aguilar is a native and citizen of El Salvador. He entered the

United States without inspection in 1998. In 2001, Gomez was convicted of

robbery in violation of D.C. Code § 22-2801 (formerly § 22-2901.59). Gomez was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). deported after immigration officers determined that his robbery conviction was an

aggravated felony under 8 U.S.C. § 1101(a)(43), thus rendering him removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). He reentered the country twice and was

charged with illegal reentry in violation of 8 U.S.C. § 1326. Gomez filed a motion

to dismiss pursuant to 8 U.S.C. § 1326(d), claiming that his removal order was

invalid because D.C. Code § 22-2801 was not an aggravated felony. The district

court denied his motion to dismiss and sentenced Gomez to 30 months’

imprisonment and three years of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the

denial of a motion to dismiss under 8 U.S.C. § 1326(d). United States v. Cisneros-

Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015).

The government argues only that D.C. Code § 22-2801 is an aggravated

felony theft offense under 8 U.S.C. § 1101(a)(43)(G). To determine whether D.C.

Code § 22-2801 qualifies as a theft offense, we apply the “categorical approach,”

wherein we “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the generic crime.” United States v.

Martinez-Hernandez, 912 F.3d 1207, 1213 (9th Cir. 2019) (citation omitted). The

government also concedes that the D.C. Code § 22-2801 is indivisible. As such, we

need not conduct a modified categorical analysis. See United States v. Walton, 881

F.3d 768, 774–75 (9th Cir. 2018).

2 The elements of a generic theft offense are “(1) the taking of (2) property (3)

without consent (4) with the intent to deprive the owner of rights and benefits of

ownership.” Martinez-Hernandez, 912 F.3d at 1213 (citation omitted). In

comparison, the elements of D.C. Code § 22-2801 are “(1) a felonious taking, (2)

accompanied by an asportation [or carrying away], of (3) personal property of

value, (4) from the person of another or in his presence, (5) against his will, (6) by

violence or by putting him in fear, (7) animo furandi [the intention to steal].”

Lattimore v. United States, 684 A.2d 357, 359 (D.C. 1996) (citation omitted);

Criminal Jury Instructions for the District of Columbia, § 4.300.

Gomez alleges that § 22-2801 is overbroad in four respects, arguing that

D.C. robbery: 1) does not require that the item taken be “property”; 2) does not

require that the item be taken with the intent to deprive the owner of rights and

benefits of ownership; 3) does not require that the item be taken without consent;

and 4) extends to accessories after the fact. We reject each of his arguments in turn.

First, § 22-2801 requires that the item taken be property. Lattimore, 684

A.2d at 359; Criminal Jury Instructions for the District of Columbia, § 4.300. D.C.

robbery does not include theft of services or means of transportation, both of which

are covered under a different chapter of the Code. See D.C. Code § 22, Chapter 32.

D.C. robbery, like generic theft, does not require proof of ownership. Compare

Criminal Jury Instructions for the District of Columbia, § 4.300, with Martinez-

3 Hernandez, 912 F.3d at 1213. Rather, “[w]hat is critical in the generic definition

[of a theft offense] is the criminal intent to deprive the owner.” Nevarez-Martinez

v. I.N.S., 326 F.3d 1053, 1055 (9th Cir. 2003); see also United States v. Flores, 901

F.3d 1150, 1161 (9th Cir. 2018) (holding that receipt of stolen property, which

does not require proof of ownership, is a generic theft offense).

Second, D.C. robbery falls within the definition of generic theft because it

requires intent to steal. Criminal Jury Instructions for the District of Columbia, §

4.300; see United States v. Alvarado-Pineda, 774 F.3d 1198, 1202–03 (9th Cir.

2014) (stating that, because specific intent to steal is an element of the Washington

robbery statute, it falls within the definition of generic theft). The jury instructions

also specify that, as with generic theft, “[i]t is necessary that [the defendant]

intended to deprive [the victim] of his/her property and to take it for his/her own

use.” Criminal Jury Instructions for the District of Columbia, § 4.300.

In D.C., it is possible to rob a dead person, as Gomez asserts—but only if the

requisite intent was formed prior to the victim’s death. If the defendant formed the

intent to rob prior to the victim’s death, a jury could find that the defendant had the

requisite intent to “deprive the owner of the rights and benefits of ownership.” See

Ulmer v. United States, 649 A.2d 295, 299 (D.C. 1994) (“appellant intended to

steal before he killed the victim and therefore clearly [the jury] would have found

appellant guilty of intending also to rob the victim before his death”); Smothers v.

4 United States, 403 A.2d 306, 313 n.6 (D.C. 1979) (“a dead person can be a robbery

victim, at least where the taking and the death occur in close proximity”).

Third, D.C. robbery also requires that the property be taken “against the

will” of the victim, thus evincing lack of consent. “The taking must be against the

will of the complainant, because no robbery occurs if the complainant knows about

and consents to the taking . . . .” Criminal Jury Instructions for the District of

Columbia, § 4.300; Lattimore, 684 A.2d at 359. Even if the robbery victim is

aware of the robbery, knowledge does not equate to consent. See id. (citing Noaks

v. United States, 486 A.2d 1177 (D.C. 1985) for the proposition that a “robbery

victim need not be ignorant of robbery by stealth”).

Finally, D.C. robbery does not extend to accessories after the fact either in

language or in practice. Accessories after the fact are charged under a different

section of the D.C. Code—§ 22-1806 (formerly § 22-106). See, e.g., Little v.

United States, 709 A.2d 708, 709 (D.C. 1998). D.C. robbery is therefore also not

overbroad in this respect. See Martinez-Hernandez, 912 F.3d at 1214 (finding that

California Penal Code § 211 does not extend to accessories after the fact based on

the language of the statute and because accessories after the fact are charged under

a different section of the Code).

AFFIRMED.

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