FILED
                                                      United States Court of Appeals
                        UNITED STATES COURT OF APPEALS        Tenth Circuit

                               FOR THE TENTH CIRCUIT                 September 11, 2020
                           _________________________________
                                                                    Christopher M. Wolpert
                                                                        Clerk of Court
    SANTOS GAMBOA CHAVIRA,
    a/k/a Santos Gamboa,

          Petitioner,

    v.                                                      No. 19-9556
                                                        (Petition for Review)
    WILLIAM P. BARR,
    United States Attorney General,

          Respondent.
                           _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

         Santos Gamboa Chavira petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) that his Utah convictions for theft by receiving stolen

property qualify as “aggravated felonies” under the Immigration and Nationality Act

(“INA”). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1) and (a)(2)(D), we deny

the petition for review.


*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    BACKGROUND

I.     Legal Background

       An alien who commits an “aggravated felony” is removable under the INA.

8 U.S.C. § 1227(a)(2)(A)(iii). “When the Government alleges that a state conviction

qualifies as an ‘aggravated felony’ under the INA, we generally employ a

‘categorical approach’ to determine whether the state offense is comparable to an

offense listed in the INA.” Moncrieffe v. Holder, 

, 190 (2013). “Under

this approach we look . . . to whether the state statute defining the crime of

conviction categorically fits within the generic federal definition of a corresponding

aggravated felony.”

omitted). “[A] state offense is a

categorical match with a generic federal offense only if a conviction of the state

offense necessarily involved facts equating to the generic federal offense.”

quotation marks omitted). “[W]e must presume that the

conviction rested on nothing more than the least of the acts criminalized, and then

determine whether even those acts are encompassed by the generic federal offense.”

(brackets and internal quotation marks omitted).

       But the focus on minimum conduct “requires more than the application of

legal imagination to a state statute’s language. It requires a realistic probability, not

a theoretical possibility, that the State would apply its statute to conduct that falls

outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 

, 193 (2007). Thus, although the facts of a particular case generally are irrelevant

to a categorical analysis, see 

, to meet the ”realistic

                                             2
probability” standard, a petitioner “must at least point to his own case or other cases

in which the state courts in fact did apply the statute in the special (nongeneric)

manner for which he argues,” 

.

II.   Factual and Procedural Background

      Mr. Gamboa is a native and citizen of Mexico who had been a lawful

permanent resident of the United States since 1975. In 2011, he was living in his van

in the Squaw Peak area of Provo Canyon, Utah. A United States Forest Service

officer saw him sleeping in the vehicle. Observing numerous prescription bottles in

the van, the officer decided to check on Mr. Gamboa. While waking him up, the

officer saw marijuana cigarettes, leading to a probable cause search of the vehicle.

That search turned up two firearms that had been stolen in California.

      In 2014, Mr. Gamboa pleaded guilty in Utah state court to two counts of theft

by receiving stolen property in violation of Utah Code Ann. § 76-6-408 (2014).1 He

was sentenced to 365 days in jail on each count, to run concurrently. The




1
 In relevant part, the version of § 76-6-408 in effect when Mr. Gamboa pleaded
guilty provides:

             A person commits theft if he receives, retains, or disposes of the
      property of another knowing that it has been stolen, or believing that it
      probably has been stolen, or who conceals, sells, withholds or aids in
      concealing, selling, or withholding the property from the owner, knowing
      the property to be stolen, intending to deprive the owner of it.

Utah Code Ann. § 76-6-408(1) (2014). In 2019, Utah amended the statute, moving
the offense elements to subsection (2) and updating certain language, but the
amendments do not affect the issue before us.

                                            3
government initiated removal proceedings, alleging the convictions qualified

Mr. Gamboa for removal under § 1227(a)(2)(A)(iii) because the definition of

“aggravated felony” includes “a theft offense (including receipt of stolen property) or

burglary offense for which the term of imprisonment [is] at least one year,” 8 U.S.C.

§ 1101(a)(43)(G) (footnote omitted).

      The BIA has held “that the mens rea of ‘knowledge or belief’ is an essential

element of an aggravated felony receipt of stolen property offense under

[§ 1101(a)(43)(G)], and this element excludes a mens rea equivalent to a ‘reason to

believe.’” In re Deang, 27 I. & N. Dec. 57, 63 (BIA 2017). Mr. Gamboa filed a

motion to terminate, asserting that § 76-6-408’s mens rea requirement does not

categorically match that of § 1101(a)(43)(G). Although the plain language of

§ 76-6-408(1) requires that a person acts “knowing that the property is stolen, or

believing that the property is probably stolen,” he argued that the Utah courts have

allowed convictions where a defendant had only “reason to believe” the property is

stolen. He therefore asserted that § 76-6-408 is overbroad in relation to

§ 1101(a)(43)(G). See Deang, 27 I. & N. Dec. at 64 (holding that a South Dakota

offense that merely required a “reason to believe” a vehicle is stolen categorically did

not match § 1101(a)(43)(G)). The immigration judge (IJ) rejected Mr. Gamboa’s

argument, denied the motion to terminate, and ordered his removal to Mexico.

      On appeal, the BIA agreed with the IJ. Applying the categorical approach, it

noted that the statute’s language tracked the “knowledge or belief” elements of the

generic offense, and that the Utah Court of Appeals has held that the mens rea

                                           4
element does not encompass less culpable mental states, see State v. Pedersen,

, 165 (Utah Ct. App. 2005) (holding that a trial court did not err in

refusing to instruct the jury on criminal negligence and recklessness as elements of

theft by receiving). Further, examining the cases Mr. Gamboa cited, the BIA held

that he had failed to show a realistic probability that Utah allows § 76-6-408

convictions for mental states less culpable than “knowledge or belief.” The BIA

therefore dismissed Mr. Gamboa’s appeal.

                                    DISCUSSION

      The question for review is whether the mens rea requirement of § 76-6-408

categorically matches the mens rea requirement of § 1101(a)(43)(G), making the

§ 76-6-408 convictions “aggravated felonies” subjecting Mr. Gamboa to removal.

We review the BIA’s decision on this issue de novo. Bedolla-Zarate v. Sessions,

, 1139 (10th Cir. 2018).

      As stated above, § 1101(a)(43)(G) “excludes a mens rea equivalent to a

‘reason to believe.’” Deang, 27 I. & N. Dec. at 63. Mr. Gamboa concedes that on its

face, § 76-6-408 requires that a defendant have knowledge or belief that the property

is stolen. See Utah Code Ann. § 76-6-408(1) (2014); see also

Nevertheless, he contends that there is a realistic probability that Utah state

courts would allow a § 76-6-408 conviction even if the defendant had only “reason to

believe” the property is stolen. To support his argument that § 76-6-408 is overbroad

as to mens rea, he points to three Utah cases—State v. Hill, 

(Utah 1986), State v. Whitbeck, 

(Utah Ct. App. 2018), and State v.

                                           5
Gibson, 

(Utah Ct. App. 2017)—and the facts of his own conviction.

Upon close examination, however, these authorities fail to establish a realistic

probability that Utah courts allow convictions under § 76-6-408 based on a mens rea

less culpable than “knowledge or belief.”

      In Hill, the Utah Supreme Court reversed the defendants’ § 76-6-408

convictions for insufficient 

. In summarizing its

conclusion, the court stated that it found the evidence “insufficient to prove beyond a

reasonable doubt that defendants knew or had reason to believe the [property was] in

fact stolen.”

decision, however, the court had set forth the elements

of theft by receiving stolen property: “(1) the defendant received, retained, or

disposed of the property of another, (2) knowing that the property had been stolen or

believing that it probably had been stolen, (3) with the purpose to deprive the owner

thereof.”

having explicitly recognized the statutory “knowledge

or belief” standard, it appears that the concluding sentence merely reflects imprecise

drafting. We have found no Utah case citing Hill for the proposition that a mens rea

of “reason to believe” satisfies the mens rea element of § 76-6-408. As such, we

cannot conclude that this stray remark establishes a realistic probability of conviction

under § 76-6-408 based on a “reason to believe” that property was stolen.

      In Whitbeck, the Utah Court of Appeals considered the trial court’s admission

of 

. In arguing for admission, the State had urged that

certain evidence tended to show the defendant “knew or should have known” the

property was stolen.

(internal quotation marks omitted). This recitation,

                                            6
however, merely reflects counsel’s argument, not the court’s view of Utah law. The

court observed that the State was required to prove the defendant “knew or believed”

the property had been stolen

and it ultimately found the State presented

substantial evidence that the defendant “would have known or believed” the property

was stolen

Accordingly, Whitbeck fails to establish that § 76-6-408

allows a conviction on less than “knowledge or belief.”

      Mr. Gamboa’s third case is Gibson, where the defendant pleaded guilty to one

count of violating § 76-6-408 by receiving stolen copper wire and fittings, which he

then 

. The Utah Court of Appeals noted that he pleaded guilty

based on certain facts, including that he “had reason to believe the items . . . had been

stolen.”

omitted); see also

(“In pleading

guilty to theft by receiving stolen property, Gibson admitted only that he sold several

pieces of copper wiring and fittings to a scrap dealer while having reason to believe

the items had been stolen.”). We are not persuaded, however, that these statements

establish that the court upheld a conviction based on a mens rea of “reason to

believe.” First, the court explicitly recognized the statutory standard that “[t]heft by

receiving stolen property occurs when a person ‘receives, retains, or disposes of the

property of another knowing that it has been stolen, or believing that it probably has

been stolen.”

Second, the court noted that in his plea

agreement, the defendant admitted the element that he acted “while knowing or

believing the property was stolen.”

And third, the issue before the court

was not whether the plea satisfied the mens rea element; instead, the case involved

                                            7
whether the trial court’s award of restitution was appropriate. See

had no reason to describe the mens rea element with any precision or

examine the defendant’s mens rea beyond determining whether he admitted

participation in the initial theft, see

. 
In contrast, in cases explicitly

addressing the mens rea requirements of § 76-6-408, Utah courts have applied the

“knowledge or belief” standard. See State v. Samples, 
272 P.3d 788
, 790-91 (Utah

Ct. App. 2012); 
Pedersen, 110 P.3d at 165
; State v. Davis, 
965 P.2d 525
, 535-36

(Utah Ct. App. 1998); State v. Gabaldon, 
735 P.2d 410
, 412 (Utah Ct. App. 1987).

Accordingly, we conclude that Gibson did not expand § 76-6-408’s mens rea

requirement.

       Mr. Gamboa also points to the circumstances of his own conviction, noting

that the record fails to set forth any facts establishing that he either knew or believed

the two guns were stolen. But the information mirrored the language of the statute

and charged Mr. Gamboa with “knowing that the property had been stolen, or

believing that it probably had been stolen.” Admin. R. at 134-35. And the

“Statement of Defendant in Support of Guilty Plea” that Mr. Gamboa signed

specifically acknowledged that an element of a § 76-6-408 conviction is that the

defendant acted “knowing that the property had been stolen, or believing that it

probably had been stolen.”
 Id. at 138. 
Under Utah law, by pleading guilty,

Mr. Gamboa is deemed to have admitted all the elements of the crime. See State v.

Parsons, 
781 P.2d 1275
, 1278 (Utah 1989). We therefore cannot conclude that the



                                              8
court allowed Mr. Gamboa to be convicted on a mens rea less than the statutory

“knowledge or belief” standard.

      For these reasons, we are not persuaded that there is a realistic probability that

Utah would apply § 76-6-408’s mens rea requirement to cover conduct less culpable

than “knowledge or belief.” The BIA did not err in concluding that the mens rea

requirement of § 76-6-408 categorically matches the mens rea requirement of

§ 1101(a)(43)(G) and that a conviction under § 76-6-408 therefore qualifies as an

“aggravated felony” for purposes of § 1227(a)(2)(A)(iii).

                                   CONCLUSION

      The petition for review is denied. The motion to proceed without prepayment

of costs and fees is granted.


                                           Entered for the Court


                                           Allison H. Eid
                                           Circuit Judge




                                           9