Filed: Apr. 27, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1009 FRANCISCO ALBERTO MENA, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: January 27, 2016 Decided: April 27, 2016 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Petition for Review granted by published opinion. Judge Shedd wrote the opinion in which Judge Agee joined. Judge Wilkinson wrote a dissenting opinion. ARGUED: David
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1009 FRANCISCO ALBERTO MENA, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: January 27, 2016 Decided: April 27, 2016 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Petition for Review granted by published opinion. Judge Shedd wrote the opinion in which Judge Agee joined. Judge Wilkinson wrote a dissenting opinion. ARGUED: David ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1009
FRANCISCO ALBERTO MENA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 27, 2016 Decided: April 27, 2016
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Petition for Review granted by published opinion. Judge Shedd
wrote the opinion in which Judge Agee joined. Judge Wilkinson
wrote a dissenting opinion.
ARGUED: David Kendall Roberts, O'MELVENY & MYERS LLP,
Washington, D.C., for Petitioner. Benjamin Mark Moss, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Joyce R. Branda, Acting Assistant Attorney General,
Civil Division, Douglas E. Ginsburg, Assistant Director, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
SHEDD, Circuit Judge:
Francisco Mena petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision finding him to be
ineligible for cancellation of removal under the Immigration and
Nationality Act (“INA”) because he is an aggravated felon. For
the following reasons, we grant the petition.
I
Mena is a native and citizen of the Dominican Republic who
was admitted to the United States as a lawful permanent
resident. An immigration judge (“IJ”) ordered Mena’s removal
based on his two convictions of crimes involving moral turpitude
not arising out of the same criminal scheme. See 8 U.S.C. §
1227(a)(2)(A)(ii). Mena did not appeal the removal order to the
BIA, and he does not contest it in his petition for review.
During his immigration proceedings, Mena applied for
cancellation of removal, a form of discretionary relief that is
available to certain aliens who have not been convicted of an
“aggravated felony.” See 8 U.S.C. § 1229b(a)(3). For purposes of
the INA, an aggravated felony is, among other things, a “theft
offense (including receipt of stolen property) . . . for which
the term of imprisonment [is] at least one year.” 8 U.S.C. §
1101(a)(43)(G).
2
Mena has a prior conviction for violating 18 U.S.C. § 659,
which creates four offenses, each set forth in a separate
paragraph. Pertinent here, the first paragraph of § 659
proscribes the illegal taking by embezzlement or theft of
certain property that has moved in interstate or foreign
commerce. The second paragraph proscribes the purchase, receipt,
or possession of such property “knowing the same to have been
embezzled or stolen.” Mena was convicted under the second
paragraph and was sentenced to a 60-month imprisonment term.
The IJ concluded that Mena is an aggravated felon based on
his finding that the § 659 conviction falls within the scope of
§ 1101(a)(43)(G). Accordingly, the IJ pretermitted Mena’s
cancellation of removal application. Thereafter, in a single-
member panel decision, the BIA dismissed Mena’s appeal of the
IJ’s order. 1 As we discuss below, the BIA primarily based its
decision on its view that § 1101(a)(43)(G) contains two separate
types of offenses that qualify as an INA “aggravated felony”: a
“theft offense,” which is the base offense listed in the
statutory section, and “receipt of stolen property,” which is
contained in the parenthetical appended to the term “theft
offense.”
1Consistentwith the BIA’s analysis, the parties agree that
§ 659 is divisible and that Mena was convicted under the second
paragraph.
3
II
Because the BIA issued its own opinion without adopting the
IJ’s reasoning, we review only the BIA decision. Hernandez-
Avalos v. Lynch, 784 F.3d 944, 948 (4th Cir. 2015). We review de
novo the BIA’s determination that an offense is an INA
aggravated felony, Omargharib v. Holder,
775 F.3d 192, 196 (4th
Cir. 2014), affording “appropriate deference” to the BIA’s
statutory interpretation of the INA, Espinal-Andrades v. Holder,
777 F.3d 163, 166 (4th Cir. 2015).
A.
When the Government alleges that a prior conviction
qualifies as an INA aggravated felony, we must employ the
“categorical approach” to determine whether the offense is
comparable to an offense listed in the INA. Omargharib, 775 F.3d
at 196. “Under that approach, we consider only the elements of
the statute of conviction rather than the defendant’s conduct
underlying the offense.”
Id. The prior conviction constitutes an
aggravated felony if it has the same elements as the generic INA
crime.
Id. However, if the statute of conviction “sweeps more
broadly” and criminalizes more conduct than the generic federal
crime, the prior conviction cannot count as an aggravated
felony.
Id. This is so even if the defendant actually committed
the offense in its generic form.
Id.
4
Because we examine what the prior conviction necessarily
involved, not the facts underlying the case, we must presume
that the prior conviction rested upon nothing more than the
least of the acts criminalized and then determine whether even
those acts are encompassed by the generic federal offense.
Moncrieffe v. Holder,
133 S. Ct. 1678, 1684 (2013). Our focus on
the minimum conduct criminalized by the statute of conviction is
not an invitation to apply “legal imagination” to the prior
offense; rather, there must be “a realistic probability” that
the government would apply its statute to conduct that falls
outside the generic definition of a crime.
Id. at 1684-85.
B.
Applying the categorical approach, we addressed the meaning
of the § 1101(a)(43)(G) term “theft offense” in Soliman v.
Gonzales, 419 F.3d 276 (4th Cir. 2005). In that case, the BIA
held that the alien’s Virginia credit card fraud conviction
constituted an INA theft offense and, therefore an aggravated
felony, based on its determination that a conviction for fraud
may also constitute “theft” for purposes of the INA. We
disagreed. We first noted that the “plain text of § 1101(a)(43)
shows that Congress specifically distinguished fraud from theft,
and that it meant for the two offenses to be treated
5
differently.” Id. at 282. 2 We then observed that “[w]hen a theft
offense has occurred, property has been obtained from its owner
‘without consent;’” but “in a fraud scheme, the owner has
voluntarily ‘surrendered’ his property, because of an
‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a
false representation to his injury.”
Id. We thus explained that
the “key and controlling distinction between these two crimes is
. . . the ‘consent’ element — theft occurs without consent,
while fraud occurs with consent that has been unlawfully
obtained.”
Id. Accordingly, we held that “a taking of property
‘without consent’ is an essential element” of a § 1101(a)(43)(G)
theft offense.
Id. at 283. 3 Consequently, we found that the
alien’s credit card fraud offense was not an INA “theft offense”
– i.e., an “aggravated felony.”
We reiterated this holding in Omargharib. There, we
considered whether the BIA properly concluded that the alien’s
2In
addition to the § 1101(a)(43)(G) “theft offense,” an
offense that “involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000” is also an aggravated felony.
See 8 U.S.C. § 1101(a)(43)(M)(i).
3Consistent
with Soliman, the BIA now defines “theft
offense” for purposes of § 1101(a)(43)(G) as “the taking of, or
exercise of control over, property without consent whenever
there is criminal intent to deprive the owner of the rights and
benefits of ownership, even if such deprivation is less than
total or permanent.” In re Garcia-Madruga, 24 I. & N. Dec. 436,
440-41 (BIA 2008) (emphasis added).
6
Virginia larceny conviction was an INA theft offense. Finding
that the BIA erred, we explained that “Virginia law treats fraud
and theft as the same for larceny purposes, but the INA treats
them differently. As such, Virginia larceny ‘sweeps more
broadly’ than the INA’s theft offense.” 775 F.3d at 197
(citation omitted). We therefore held that a Virginia larceny
conviction “does not constitute an aggravated felony for
purposes of the INA under the categorical approach.”
Id.
C.
Mena’s challenge to the BIA’s decision is primarily based
on our holding in Soliman. Mena argues that a person can be
convicted under the second paragraph of § 659 for receipt of
embezzled property, and the crime of embezzlement necessarily
involves a taking of property with the owner’s consent.
Therefore, according to Mena, because “a taking of property
‘without consent’ is an essential element” of a § 1101(a)(43)(G)
theft offense,
Soliman, 419 F.3d at 283, a conviction under the
second paragraph of § 659 is not a § 1101(a)(43)(G) “theft
offense” under the categorical approach.
The BIA rightly did not dispute this interpretation of the
second paragraph of § 659 or the crime of embezzlement, see J.A.
5, because the second paragraph of § 659 plainly criminalizes
the receipt of certain embezzled property. Moreover, in what we
have described as the “the classic definition,” United States v.
7
Smith, 373 F.3d 561, 565 (4th Cir. 2004), the Supreme Court long
ago explained that embezzlement “is the fraudulent appropriation
of property by a person to whom such property has been intrusted
[sic], or into whose hands it has lawfully come,” Moore v.
United States,
160 U.S. 268, 269 (1895); see also United States
v. Stockton,
788 F.2d 210, 216 (4th Cir. 1986) (explaining that
the crime of embezzlement requires that “the embezzled property
must have been in the lawful possession of the defendant at the
time of its appropriation”). This classic definition applies to
the term as it is used in § 659. See, e.g., United States v.
Waronek,
582 F.2d 1158, 1161 (7th Cir. 1978) (explaining in the
context of a § 659 embezzlement conviction that although larceny
“involves an unlawful trespass to the possessory interest of the
owner in the property,” where “the taker has been entrusted with
possession of the property, the taking is more aptly described
as embezzlement”); see generally Boone v. United States,
235
F.2d 939, 941 (4th Cir. 1956) (explaining that the § 659 “crime
of receiving include[s] a receipt of property founded on an
antecedent capture of it through fraud and deception”).
Despite its acceptance of Mena’s characterization of § 659
and the crime of embezzlement, the BIA applied the categorical
approach and concluded that Mena’s conviction under the second
paragraph of § 659 categorically falls within § 1101(a)(43)(G).
The key to the BIA’s decision is its view that § 1101(a)(43)(G)
8
creates two “‘distinct and separate offenses’” – “theft offense”
(the base offense) and “receipt of stolen property” (the
appended parenthetical offense) – which have “different generic
definitions composed of different elements.” J.A. 6 (quoting In
re Cardiel-Guerrero, 25 I. & N. Dec. 12, 14 (BIA 2014)). As the
BIA explained, this case involves “receipt of stolen property,”
a term it has interpreted “to include the category of offenses
involving knowing receipt, possession, or retention of property
from its rightful owner,” J.A. 5 (citing In re Bahta, 22 I. & N.
Dec. 1381, 1391 (BIA 2000)). Given the purported distinction
between the two § 1101(a)(43)(G) offenses, the BIA reasoned that
it “need not establish the elements of a ‘theft’ offense to
demonstrate that a conviction for ‘receipt of stolen property’
qualifies as an aggravated felony” under § 1101(a)(43)(G). J.A.
6. For this reason, the BIA found our holding in Soliman – that
a “theft offense” requires a nonconsensual taking of property
from its owner - to be inapplicable.
The BIA supported its decision by pointing to its prior
opinion in Cardiel-Guerrero, where it observed that receipt of
extorted property falls within the generic definition of
“receipt of stolen property” under § 1101(a)(43)(G). The BIA
noted that in Cardiel-Guerrero, it “reasoned that although the
owner may have ‘consented in some aberrant sense’ during the
initial taking, ‘it can hardly be argued that the victim of
9
extortion has also consented to having his property ‘fenced,’
concealed, or otherwise withheld from him against his will by
third parties.’” J.A. 6 (quoting Cardiel-Guerrero, 25 I. & N.
Dec. at 23-24). Analogizing extortion with embezzlement, the BIA
explained that “although the initial taking under the second
paragraph of 18 U.S.C. § 659 may have involved embezzlement or
fraud, [Mena] cannot argue that an owner also consented to a
third party buying or possessing his or her embezzled property.”
J.A. 6.
Additionally, the BIA stated that “a survey of State theft
statutes supports [its] view that receipt of embezzled property
is included in the generic definition of a ‘theft offense
(including receipt of stolen property)’” under § 1101(a)(43)(G).
J.A. 6. The BIA noted that when § 1101(a)(43)(G) was added to
the INA, most states had adopted the Model Penal Code’s approach
of consolidating the various common law offenses of larceny,
embezzlement and false pretenses, receiving stolen property, and
extortion into a unitary “theft” offense. J.A. 6. The BIA also
found support for its holding in the fact that § 659 requires
proof that the defendant received the property knowing that it
was embezzled or stolen, and with the intent to deprive the
owner of the rights or benefits of the property. J.A. 6.
D.
10
Common sense suggests that knowingly receiving either
stolen or embezzled property – i.e., the offense set forth in
the second paragraph of § 659 - is a form of theft. See, e.g.,
United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979)
(noting that the purpose of § 659 “is to protect goods moving in
interstate commerce from theft”). However, we are not writing on
a clean slate, and we may not simply rest our decision on some
concept of common sense. Instead, we are obliged to apply the
categorical approach, and in doing so we are guided by circuit
precedent. Applying the categorical approach, we believe that
Soliman, combined with a straightforward reading of §§ 659 and
1101(a)(43)(G), dictates the result in Mena’s favor.
As noted, Soliman establishes that “a taking of property
‘without consent’ is an essential element” of a § 1101(a)(43)(G)
“theft offense.” 419 F.3d at 283. Moreover, the text of §
1101(a)(43)(G) provides that the term “theft offense” includes
the crime of “receipt of stolen property.” 4 The straightforward
4The pertinent text of § 1101(a)(43)(G) actually reads:
“theft offense (including receipt of stolen property).” The key
word in this provision is “including,” which most naturally
means that the term that follows is a part of the term that
precedes “including.” See, e.g., P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 77 n.7 (1979) (holding that the use of the word
“including” in the definitional provision of the federal statute
being reviewed there indicates an element that is “part of the
larger group” and rejecting the argument that “including” means
“and” or “as well as”); see also Universal Maritime Serv. Corp.
(Continued)
11
conclusion that follows is that a receipt crime – being an INA
“theft offense” – requires a taking of property without consent.
By definition, embezzlement, like the closely related crime
of fraud, 5 involves property that came into the initial
wrongdoer’s hands with the owner’s consent. This is an immutable
fact regardless of whether the property is subsequently
transferred to, and received by, a third party. Accordingly, a
conviction for receipt of embezzled property under § 659 does
not require proof that the owner did not consent to the taking
of the property. Lacking the “without consent” element, receipt
of embezzled property under § 659 does not fall within the §
1101(a)(43)(G) theft offense definition. Consequently, the crime
set forth in the second paragraph of § 659 “sweeps more broadly”
than the generic § 1101(a)(43)(G) theft offense, and it is not
an INA aggravated felony under the categorical approach.
In reaching this decision, we accept the government’s
unremarkable observation – premised on the BNA’s prior Bahta
decision - that the parenthetical clause of § 1101(a)(43)(G)
v. Wright, 155 F.3d 311, 319 n.10 (4th Cir. 1998) (similar
holding).
5The
Supreme Court has explained that “the word ‘embezzled’
itself implies fraudulent conduct on the part of the person
receiving the money,” and “it is impossible for a person to
embezzle the money of another without committing a fraud upon
him.” Grin v. Shine, 187 U.S. 181, 189 (1902).
12
clarifies that the term “theft” is not limited to require proof
that the offender was involved in the actual taking of the
property. However, that observation simply does not support the
BIA’s conclusion that the “without consent” element of a “theft
offense” is inapplicable to a “receipt offense.” Section
1101(a)(43)(G) plainly applies to both “taking” and “receiving”
offenses. Nonetheless, as we have explained, a “receipt offense”
is one type of “theft offense” for purposes of the INA, and
Soliman establishes that a necessary element of a “theft
offense” is a taking from the owner without consent.
We also find the BIA’s analogy between embezzlement and
extortion misplaced. In Cardiel-Guerrero, the BIA noted that
although “consent” of the property owner is an element of
extortion, “the concept of ‘consent’ used in the law of
extortion is highly unconventional and does not connote a
voluntary or elective conferral of property.” 25 I. & N. Dec. at
20. Indeed, as the Second Circuit has observed, the “consent”
element in an extortion case presents the victim with a
“Hobson’s choice” and “is the razor’s edge that distinguishes
extortion from robbery.” United States v. Zhou, 428 F.3d 361,
371 (2nd Cir. 2005). This type of “consent” stands in marked
contrast to the lawful consent underlying an embezzlement crime.
See generally Tredwell v. United States,
266 F. 350, 352 (4th
Cir. 1920) (explaining that “[w]here one comes lawfully into the
13
possession of property, and afterwards and while it is in his
possession forms and carries out the purpose of appropriating it
to his own use, the crime thus committed is the crime of
embezzlement; but if, at the time of getting possession
lawfully, the one to whom property is intrusted [sic] has the
intention of appropriating it to his own use, the crime thus
committed is the crime of larceny”).
Additionally, we find the BIA’s reliance on its survey of
State statutes and the Model Penal Code to be unavailing.
Although the BIA pointed to the States’ “trend” to consolidate
various common law offenses into a unitary “theft” offense, that
trend involves, among other things, certain fraud offenses. Of
course, we implicitly rejected that trend in Soliman and
Omargharib by holding that fraud offenses are not
§ 1101(a)(43)(G) “theft offenses.”
Finally, we note the anomalous result that the BIA decision
would create. 6 Under the BIA’s reasoning, an alien who is
6Dependingon the circumstances of a given case, we accord
various levels of deference to the BIA’s interpretation of the
INA. Here, the parties disagree regarding the applicable level
of deference we should apply. Our decision is based on the plain
language of § 1101(a)(43)(G), as interpreted by Soliman, so we
owe no deference to the BIA’s statutory interpretation. See
Espinal-Andrades, 777 F.3d at 166-67. However, even if the
statute is ambiguous, “[w]e need not wade into the debate over
the proper degree of deference, for it makes no difference in
this case.” Oxygene v. Lynch,
813 F.3d 541, 548 n.3 (4th Cir.
2016).
14
convicted under § 659 for embezzling up to $10,000 of property
would not be an aggravated felon under § 1101(a)(43), yet
another alien who is convicted under § 659 (and sentenced to a
year of imprisonment) for knowingly receiving a fraction of the
embezzled property would be. This result “makes scant sense” and
cannot stand. Mellouli v. Lynch, 135 S. Ct. 1980, 1989 (2015)
(rejecting BIA interpretation of the INA that treated “minor
paraphernalia possession offenses . . . more harshly than drug
possession and distribution offenses”); see also Castillo v.
Holder,
776 F.3d 262, 270 n.6 (4th Cir. 2015) (in rejecting the
BIA’s decision that the Virginia crime of unauthorized use of a
vehicle is categorically a “theft offense” under §
1101(a)(43)(G), we noted that “under the BIA’s decision . . . an
anomalous and unreasonable result would occur if a conviction of
the ‘lesser’ crime of unauthorized use formed the basis for
removability under [§ 1101(a)(43)(G)], while the greater crime
of larceny would not”).
III
In short, based on our application of the categorical
approach, we hold that a conviction under the second paragraph
of § 659 is not a “theft offense (including receipt of stolen
property)” under § 1101(a)(43)(G). The BIA therefore erred in
finding Mena to be an aggravated felon who is ineligible for
cancellation of removal under § 1229b(a)(3). Accordingly, we
15
grant the petition for review and remand for further proceedings
consistent with this opinion. 7
PETITION FOR REVIEW GRANTED
7Our determination that Mena’s § 659 conviction is not
categorically an INA aggravated felony does not alter the basic
nature of his offense. Mena may not have committed an INA “theft
offense” as a technical matter, but he did commit an offense
involving his knowing receipt of illegally obtained property.
The government apparently feels strongly that Mena should not
receive cancellation of removal relief, asserting that if (as we
are ordering) the case is remanded, the BIA should be free to
consider whether Mena is ineligible for cancellation of removal
on another basis. Brief for Respondent, at 44. Mena disputes
this assertion, but we decline to enter the fray. We note,
however, that regardless of whether Mena is ultimately deemed to
be eligible for cancellation of removal, the Attorney General’s
decision whether to grant cancellation relief is discretionary
and generally not subject to judicial review. See 8 U.S.C. §
1252(a)(2)(B)(i).
We do not know if the issue of discretionary relief will
eventually be considered in this case, and we express no opinion
about that. However, as a general observation, it seems that a
great deal of the effort and resources expended in appeals of
cases of this type could potentially be preserved if the IJ or
BIA proceeded beyond the eligibility determination and ruled
alternatively on the discretionary cancellation decision. See,
e.g., Ennis v. Att’y Gen. of the U.S., 617 Fed. Appx. 161, 163-
64 (3rd Cir. 2015) (“We . . . note that we would not reach the
aggravated felony issue even if Ennis had exhausted it because
the IJ denied cancellation of removal on the independently
dispositive ground that cancellation was not warranted in the
exercise of discretion. . . . [W]e generally lack jurisdiction
to review the discretionary denial of cancellation in any
event.”).
16
WILKINSON, Circuit Judge, dissenting:
Embezzlement is a theft. Ask the person seated next to you.
He or she will tell you that it is.
The majority says not. Come again? The majority says
embezzlement is not a form of theft.
It is from that proposition that I respectfully dissent.
* * *
The Immigration and Nationality Act declares that any
“theft offense (including receipt of stolen property) . . . for
which the term of imprisonment is at least one year” is an
aggravated felony. 8 U.S.C. § 1101(a)(43)(G). This broad,
generic language embraces a variety of offenses, and the plain
meaning of “theft” makes clear that Mena’s conviction under 18
U.S.C. § 659 is a theft offense.
The majority believes that embezzlement is not a theft
because the owner of the funds voluntarily entrusts them to the
embezzler. That totally ignores the fact that the whole purpose
of the entrustment is for an honest stewardship of the funds.
The betrayal of that purpose through embezzlement is purely and
simply theft.
Theft is defined as “[b]roadly, any act or instance of
stealing, including larceny, burglary, embezzlement, and false
pretenses.” Theft, Black’s Law Dictionary (10th ed. 2014)
(emphasis added). In common parlance, theft means “the action or
17
crime of stealing.” Concise Oxford English Dictionary 1494 (11th
ed. 2004). At the core of these definitions is a singular
concept: theft happens when property is taken without any
semblance of consent.
The parenthetical “(including receipt of stolen property)”
reinforces § 1101(a)(43)(G)’s broad meaning. “Stolen property”
means “goods acquired by,” among other means, “theft.” Stolen
Property, Black’s Law Dictionary (10th ed. 2014). Stolen
property thus includes property taken through any of the common-
law means that make up theft. This is consistent with the
definition of the verb “steal”: “[t]o take (something) by
larceny, embezzlement, or false pretenses.” Steal, Black’s Law
Dictionary (10th ed. 2014) (emphasis added). “Including,”
furthermore, means “‘contain[ing]’ or ‘compris[ing] [] part of a
whole.’” Chickasaw Nation v. United States, 534 U.S. 84, 89
(2001) (citing Webster’s Ninth New Collegiate Dictionary 609
(1985)). Its use in conjunction with parentheses “emphasizes the
fact that that which is within is meant simply to be
illustrative . . . a circumstance underscored by the lack of any
suggestion that Congress intended the illustrative list to be
complete.”
Id. at 89. Far from narrowing the meaning of “theft
offense,” the parenthetical thus suggests that offenses similar
to “receipt of stolen property” (i.e., receipt of embezzled
property) are covered by the statute.
18
This plain meaning of theft is underscored by the fact that
the INA uses the term “theft offense” in a generic sense. Its
meaning therefore “roughly correspond[s] to the definitions” of
theft found “in a majority of the States’ criminal codes.” See
Taylor v. United States, 495 U.S. 575, 589 (1990). Those codes,
meanwhile, had by the time of § 1101(a)(43)(G)’s 1994 enactment
largely adopted the Model Penal Code’s policy of consolidating
various common law offenses, including larceny, extortion,
blackmail, and embezzlement, into unitary theft offenses. J.A.
6, citing In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 21 (BIA
2009); see also Model Penal Code § 223.1(1) (“Conduct
denominated theft in this Article constitutes a single
offense.”). A generic definition of theft accordingly includes
embezzlement.
The majority explicitly abjures common sense, i.e. plain
meaning, in its approach to this problem. Maj. Op. at 11. But
the categorical approach is supposed to “serve[] practical
purposes.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013).
Common sense (or plain meaning, or practicality), as we all
seemingly acknowledge, would lead us to reject petitioner’s
position. Petitioner Mena was convicted under the second
paragraph of 18 U.S.C. § 659, which criminalizes receipt of
stolen or embezzled property. He argues that he nonetheless has
not committed a theft offense. But it is wrong to think that
19
§ 659’s coverage of receipt of embezzled property somehow takes
it beyond the realm of theft.
Like theft, embezzlement is also stealing. And
“distinctions between” different types of stealing “serve no
useful purpose in the criminal law but are useless handicaps
from the standpoint of the administration of criminal justice.”
Rollin M. Perkins & Ronald Boyce, Criminal Law, 389-90 (3d ed.
1982). Like a victim of traditional larceny, a victim of
embezzlement does not “consent” to the loss of his property. Nor
does a victim of embezzlement, like a victim of larceny,
“consent” to the involvement of a third party when his property
is transferred. Both victims consider their property stolen.
Petitioner rejects this view, relying on our earlier
decision in Soliman v. Gonzales. In that case, we held that an
INA “theft offense” must involve a taking without consent. 419
F.3d 276, 283 (4th Cir. 2005). But even if it were not already
silly to suggest that one “consents” to the embezzlement of
one’s property, see Pet’r’s Br. at 18, Soliman had no occasion
to consider the problem before us now. The predicate offense in
Soliman was credit card
fraud. 419 F.3d at 278. The court thus
did not consider how to evaluate receipt offenses under the INA.
And the plain meaning of “(including receipt of stolen
property),” 11 U.S.C. § 1101(a)(43)(G), requires that Mena’s
conviction be treated as a theft offense.
20
The majority views this as an unfair result. It contends
that embezzlement (as opposed to receipt of embezzled property)
is not itself an aggravated felony unless the amount embezzled
exceeds $10,000. Maj. Op. at 14-15. Making receipt of embezzled
property an aggravated felony would thus risk, in the majority’s
view, treating the lesser criminal more harshly than the greater
one. But this reasoning assumes that the original embezzler is
not also guilty of a theft offense – an incorrect assumption.
And even if the majority’s understanding were correct, several
considerations limit its relevance. First, fairness in the
treatment of the family of embezzlers is more properly addressed
during their individual sentencings. Second, § 1101(a)(43)(G)
contains a safeguard. The term of imprisonment for any predicate
theft offense must be “at least one year.” Mena, for example,
was sentenced to sixty months of incarceration. Minor receipt of
embezzled property offenses thus still avoid aggravated-felony
status. Finally, if the point of the categorical approach,
properly adopted by the majority, is to compare the elements of
predicate against generic INA offenses, then the majority’s
concerns are not only misplaced but irrelevant. The capacious
terms of § 1101(a)(43)(G) embrace Mena’s 18 U.S.C. § 659
conviction, and we are obliged to respect that legislative
choice.
21
This case is much less complicated than the majority makes
it. To repeat: embezzlement is a theft. Just ask the person two
rows down.
22
