United States v. Moses Corona-Sanchez, A/K/A Enrique Sanchez-Corona

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge RYMER; Dissent by Judge KOZINSKI.

This appeal presents the question of whether.a California state conviction for the petty theft of cigarettes and beer constitutes an aggravated felony under 8 U.S.C. § 1101 (a)(4S)(G) and therefore justifies increasing a sentence for unlawful reentry pursuant to 8 U.S.C. § 1826 (b)(2). Under the circumstances of this case, we conclude that it does not, and reverse and remand for resentencing.

I

Moses Corona-Sanchez was born in Guadalajara, Mexico and lived there until 1987 or 1988, when, at the age of 13, he came to the United States to live with his aunt. He attended junior high and high school in San Clemente, California. His exposure to law enforcement began in 1993, when he was charged with being a minor in possession of alcohol. Since that time, he has been convicted of various offenses, deported 16 times, and excluded twice.

Relevant to the case at hand, Corona-Sanchez was apprehended in 1994 while attempting to spirit away a 12-pack of beer and a pack of cigarettes from a grocery store. 1 This was a reprise of his previous unsuccessful petty larceny of a liquor…

with whom KOZINSKI, T.G. NELSON, and KLEINFELD, Circuit Judges, join, concurring in part 1 and dissenting in part.

To me, stealing property from a grocery store with a prior conviction for doing the same thing — to which Corona-Sanchez pled guilty and for which he was sentenced to two years in custody pursuant to California Penal Code §§ 488 and 666, is plainly a “theft offense ... for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101 (a)(43)(G). If so, the conviction was for an “aggravated felony” and enhancement of Corona-Sanchez’s federal sentence for illegally reentering the United States after being deported was required by U.S.S.G. § 2L1.2(b)(l)(A). This is true regardless of which generic definition of “theft” we adopt. While I do not believe that the full range of conduct proscribed by California’s statutory definition of “theft,” CaLPenal Code § 484(a), falls outside the modern, categorical meaning of “theft offense,” even if it does, we are not required to play ostrich to the record which reflects that the elements of a theft offense, however defined, exist in this case and that Corona-Sanchez was convicted of a felony. Therefore, I would affirm.

It…

dissenting.

I join Judge Rymer’s dissent without reservation but write to elaborate on a single point. In section III.C of its opinion, the majority holds that the maximum term of imprisonment for the crime of which Corona-Sanchez was convicted is six months. The longer sentence he received, the majority argues, is based on a sentencing enhancement, which is not an element of the crime of petty theft. The majority relies on People v. Bouzas, 53 Cal.3d 467 , 279 Cal.Rptr. 847 , 807 P.2d 1076, 1080 (1991), which holds that “the prior conviction under ... section 666[is] a sentencing factor for the court, and not ... an ‘element’ of an offense to be determined by a jury.” If Bouzas were good law, the majority’s argument would be plausible, but it is not. The procedure approved by the California Supreme Court in Bouzas doesn’t survive Apprendi; the recidivist enhancement is an element of the crime that must be determined by a jury.

Three of the justices in the Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), majority apparently were of the view that the Court’s prior opinions in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140…

291 F.3d 1201 UNITED STATES of America, Plaintiff-Appellee, v. Moses CORONA-SANCHEZ, a/k/a Enrique Sanchez-Corona, Defendant-Appellant. No. 98-50452. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 11, 2001. Filed June 6, 2002. Wendy S. Gerboth, Hulett Harper LLP, San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney, Roger W. Haines, Jr., Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding. D.C. No. CR-98-00025-WBE. Before: SCHROEDER, Chief Judge, REINHARDT, KOZINSKI, RYMER, T.G. NELSON, KLEINFELD, THOMAS, McKEOWN, W. FLETCHER, FISHER, and BERZON, Circuit Judges. Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge RYMER; Dissent by Judge KOZINSKI. THOMAS, Circuit Judge. 1 This appeal presents the question of whether a California state conviction for the petty theft of cigarettes and beer constitutes an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G) and therefore justifies increasing a sentence for unlawful…