Aggravated Felony Category Index By N. Tooby and J. Rollin

Transcription

1 Aggravated Felony Category Index By N. Tooby and J. Rollin Current through 10/31/ 2011 Table of Contents A.1 Introduction A.2 Accessory After the Fact A.3 Aiding and Abetting A.4 Alien Harboring A.5 Alien Smuggling A.6 Alien Transportation A.7 Attempt A.8 Bribery Commercial A.9 Bribery of Witness A.10 Burglary A.11 Child Pornography A.12 Conspiracy A.13 Counterfeiting A.14 Crimes of Violence A.15 Deceit A.16 Destructive Device Trafficking A.17 Document Fraud A.18 Drug Trafficking A.19 Failure To Appear in Court To Face Charges A.20 Failure To Appear in Court To Serve Sentence A.21 Firearms Offenses A.22 Firearms Trafficking A.23 Forgery A.24 Fraud A.25 Illegal Re-Entry After Deportation A.26 Kidnapping A.27 Misprision of Felony This Index was last published as Appendix A in N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 635 (2007). It is updated monthly online at 139

2 A.28 Money Laundering A.29 Murder A.30 National Security Offenses A.31 Obstruction of Justice A.32 Perjury A.33 Prostitution A.34 Rape 293 A.35 Receiving Stolen Property A.36 Revealing Undercover Agent s Identity A.37 RICO Offenses A.38 Sexual Abuse of a Minor A.39 Solicitation A.40 Statutory Rape A.41 Tax Evasion A.42 Theft 322 A.43 Vehicles With ID Numbers Removed Trafficking A.1 Introduction A.1 Category Defined. This volume uses the phrase Aggravated Felony Category, or simply Category, to describe the theory or phrase, in the aggravated felony statute, under which a given criminal conviction may or may not constitute an aggravated felony. Examples of categories are Murder, Crime of Violence, and Theft Offense. The Category Case Index takes all published decisions of all courts defining what is, and is not, an aggravated felony, and organizes them according to the category they might or might not fall within. These categories are organized in alphabetical order. Therefore, looking under C for Crime of Violence will produce all decisions construing that phrase. Some categories are empty, simply because there are not yet any published decisions that relate to that category. This index is organized first by category, then by jurisdiction, and finally in reverse chronological order. Remember that unless the United States Supreme Court, or the circuit in which the immigration case arises (i.e., where the noncitizen is placed in removal proceedings) has ruled on an issue, the BIA decisions regarding that issue are controlling. This index includes circuit and district court decisions arising in both the immigration context, and cases determining whether a conviction is an aggravated felony 140

3 for purposes of sentencing noncitizens convicted for illegal re-entry. Some additional cases, such as those defining crime of violence for sentencing purposes, are also included, even though the statute or Guidelines language involved may be somewhat different than the strict aggravated felony definition, for what they are worth. This index also includes cases that consider whether certain non-substantive offenses that are not listed under INA 101(a)(43)(U) (e.g., aiding and abetting and solicitation), can be considered aggravated felony offenses. The Capsule Summaries include the following information: citation, exact date (month, day, and year) of the decision, and a parenthetical identifying the jurisdiction and statute of conviction (if reflected in the decision), the aggravated felony category under consideration, the final holding (is or is not an aggravated felony), and the purpose for which the court conducted the inquiry (e.g., removal purposes, sentence enhancement of illegal re-entry sentence, etc.). On occasion, relevant case history, and some of the court s reasoning, is also included. Warning. Caution is urged in generalizing from a decision cited here to the particular client s case you may have under consideration. The result may differ for a number of reasons. The elements of the offense, as defined by the statute, may differ between the two cases, even though they involve the same type of crime. Each individual statute must be examined. Even if the statute is identical, it may have been amended between the two convictions, or judicial decisions of the jurisdiction of conviction may have altered the elements required for conviction of the offense in the interim. The law governing the rules to be applied in determining whether a given conviction triggers certain immigration consequences may have changed between the dates of the two convictions. The courts may have altered the rules for determining whether a conviction involves an aggravated felony. The record of conviction in one case may be different from the record in another. The judicial decision may be interpreting aggravated felony under a legal provision with a different aggravated felony from the context in which the particular client s case arises. Therefore, the cases collected here should be used as the starting point rather than as a substitute for legal research and analysis. A.2 Accessory After the Fact Ninth Circuit ACCESSORY AFTER THE FACT Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009) (California conviction for receiving stolen property, under Penal Code 496(a), categorically qualified as a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), rejecting argument that the statutory use of the term "aids" includes 141

4 accessory after the fact, which would not constitute an aggravated felony; the court reasoned that the statute does not mention accessory, only aiding, and no case was identified applying the statute to accessories after the fact). ACCESSORY AFTER THE FACT United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007) (9-6 en banc) (accessory after the fact does not constitute an aggravated felony, since attempt and conspiracy are listed under INA 101(a)(43)(U), but accessory after the fact is not). A.2 BIA ACCESSORY AFTER THE FACT DRUG TRAFFICKING Matter of Batista- Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. 3 as accessory after the fact to a drug-trafficking crime does not establish deportability as a drug-trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because accessory after the fact is not listed as an inchoate offense (like attempt and conspiracy) that Congress chose to consider an aggravated felony within the definition given in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)). ACCESSORY AFTER THE FACT OBSTRUCTION OF JUSTICE Matter of Batista- Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. 3 as accessory after the fact to a drug-trafficking crime, with a sentence imposed of one year or more, establishes deportability as an aggravated felony, because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S)). A.3 Aiding and Abetting A.3 US Supreme Court THEFT OFFENSE AUTO THEFT AIDING AND ABETTING Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815 (Jan. 17, 2007) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851(a), constituted theft offense aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the crime of "aiding and abetting" a theft offense is included within the substantive offense). Fifth Circuit 142

5 AIDING AND ABETTING FACILITATION OF DRIVE-BY SHOOTING Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes). AIDING AND ABETTING - FRAUD OFFENSES James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction of aiding and abetting bank fraud, in violation of 18 U.S.C. 2, 1344, constituted an offense "involving" fraud or deceit, since the elements of aiding and abetting bank fraud "necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful."; "Significantly, 'the aiding and abetting statute, 18 U.S.C. 2, does not define a separate crime,' but rather provides another means of convicting someone of the underlying offense." (Footnote omitted.)). Sixth Circuit AIDING AND ABETTING ALIEN SMUGGLING Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. Mar. 9, 2005) (federal conviction of driving an undocumented noncitizen to the United States border, and presenting him to the immigration authorities upon inspection, not knowing that the noncitizen is not entitled to enter the United States, at least on a temporary basis, does not constitute alien smuggling ). Eighth Circuit AIDING AND ABETTING POSSESSION FOR SALE United States v. Baca- Valenzuela, 118 F.3d 1223 (8th Cir. July 7, 1997) (federal conviction of aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, constituted aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. 2L1.2(b)(2), despite the fact the conviction was for aiding and abetting). Ninth Circuit AIDING AND ABETTING THEFT OFFENSE Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code 487(c), constitutes a theft offense, and therefore is an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for deportation purposes, because California courts have held an intent permanently to deprive the owner of property is an essential element of this offense, and 143

6 because the record of conviction i.e., the charge and the absence of any codefendants negated the possibility the defendant was convicted on an aiding and abetting theory which renders the statute divisible), opinion withdrawn and superseded by 417 F.3d 1022 (9th Cir. Aug. 2, 2005). AIDING AND ABETTING TAKING OF VEHICLE United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the U.S.S.G., for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence). AIDING AND ABETTING THEFT OFFENSE Martinez-Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code 487(c), is not an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for deportation purposes, because the court could not determine from the record of conviction whether Martinez pleaded guilty to the statute as a principle or as an aider or abettor), vacating and overruling prior decision at 393 F.3d 1018 (9th Cir. Dec. 29, 2004). AIDING AND ABETTING ALIEN SMUGGLING United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (federal conviction of aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense). AIDING AND ABETTING THEFT OF MEANS OF TRANSPORTATION Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code 10851(a), was not a theft offense, within the meaning of INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because both the statute and charge were overbroad with respect to the definition of a theft offense because they encompassed not only substantive theft offenses but aiding and abetting them as well). AIDING AND ABETTING Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. Dec. 27, 2007) (California conviction of unauthorized driving of a vehicle, in violation of Vehicle Code 10851(a), constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G); rejecting an argument that the statute does not define a categorical theft offense because it prohibits aiding and abetting as well as direct commission of the act, and rejecting respondent's argument that applying the modified categorical approach, there is no evidence in the record of conviction showing he committed a theft offense), following Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 818, 823 (2007) (holding the generic term theft offense in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), includes 144

7 the crime of aiding and abetting, and vacating a Ninth Circuit decision holding that 10851(a) was not a categorical theft offense). CRIME OF VIOLENCE AIDING AND ABETTING ASSAULT WITH A DEADLY WEAPON Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. Sept. 9, 2008) (California conviction of aiding and abetting assault with a deadly weapon, under Penal Code 245(a)(1), constitutes a crime of violence aggravated felony for removal purposes). A.4 Alien Harboring A.4 Third Circuit ALIEN HARBORING Patel v. Ashcroft, 294 F.3d 465 (3d Cir. June 20, 2002) (federal conviction of harboring an undocumented noncitizen, in violation of INA 101(a)(1)(A), 8 U.S.C. 1324(a)(1)(A), met the definition of an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), for immigration purposes, despite the fact that defendant had no part in the harbored person s illegal admission or entry). Eighth Circuit ALIEN HARBORING Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA 274(a)(1)(A)(ii) and (iii), 8 U.S.C. 1324(a)(1)(A)(ii) and (iii), constituted aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), despite parenthetical mentioning smuggling). Ninth Circuit ALIEN HARBORING Castro-Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. July 17, 2001) (federal conviction of harboring illegal aliens in violation of INA 274(a)(1)(A)(iii), 8 U.S.C. 1324(a)(1)(A)(iii) is an aggravated felony, under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), for removal purposes). Tenth Circuit ALIEN HARBORING United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (federal conviction: aggravated felony category of alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal re-entry 145

8 sentence under U.S.S.G. 2L1.2(b)(1)(A)(vii) (2002) based on prior aggravated felony conviction). A.5 Alien Smuggling A.5 Third Circuit ALIEN SMUGGLING AIDING AND ABETTING Biskupski v. Attorney Gen. of the US, F.3d, 2007 WL (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an aggravated felony even though only punishable as a misdemeanor under federal law). Fifth Circuit ALIEN SMUGGLING ILLEGAL ENTRY Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. Dec. 30, 1999) (federal illegal entry conviction of violating INA 275(a), 8 U.S.C. 1325(a) is outside the ambit of INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), which is explicitly confined to convictions under INA 274(a), 8 U.S.C. 1324(a), and so is not an aggravated felony under that theory for immigration purposes). ALIEN SMUGGLING United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (federal conviction of aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense). Ninth Circuit ALIEN SMUGGLING United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (federal conviction of aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense). ALIEN SMUGGLING United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. Aug. 27, 2009) (federal conviction for violation of 8 U.S.C. 1324(a)(1)(A) is categorically an alien smuggling offense; noncitizen bears burden of showing that family exception applies; shift of burden is not impermissible). 146

9 NOTE: This case relies upon the reasoning of Nijhawan v. Holder, 557 U.S., 129 S.Ct (2009). BIA ALIEN SMUGGLING Matter of Alvarado-Alvino, 22 I. & N. Dec. 718 (BIA May 24, 1999) (federal conviction of illegal entry, in violation of INA 275(a), 8 U.S.C. 1325, is not an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), which specifically refers to those offenses relating to alien smuggling described in INA 274(a)(1)(A) and (2), 8 U.S.C. 1324(a)(1)(A) and (2)). ALIEN SMUGGLING Matter of LS, 22 I. & N. Dec. 645 (BIA Apr. 16, 1999) (federal conviction of bringing illegal aliens into the United States, in violation of INA 274(a), 8 U.S.C. 1324(a), is an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N) for deportation purposes). A.6 Alien Transportation A.6 Fifth Circuit ALIEN TRANSPORTATION United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. Nov. 12, 2002) (federal conviction for transporting aliens within the United States, in violation of INA 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), was an alien smuggling offense within meaning of the Sentencing Guidelines for purpose of constituting an aggravated felony to enhance a sentence under U.S.S.G. 2L1.2(b)(1)(A)(vii) for illegal re-entry). ALIEN TRANSPORTATION Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. Mar. 3, 2000) (federal conviction of transporting illegal noncitizens from one point to another within the United States without crossing a national border, in violation of INA 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), triggered deportation as an aggravated felony, since the parenthetical phrase (relating to alien smuggling) found in INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N) does not restrict the statutory references that directly precede it). ALIEN TRANSPORTATION United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. Sept. 16, 1999), cert. denied, 528 U.S. 1194, 120 S.Ct (2000) (federal conviction of transporting illegal noncitizens from one point to another within the United States without crossing a national border, in violation of INA 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), constituted an aggravated felony, for purposes of illegal re-entry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A), since the parenthetical phrase 147

10 (relating to alien smuggling) found in INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N) does not restrict the statutory references that directly precede it). Eighth Circuit ALIEN TRANSPORTATION Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA 274(a)(1)(A)(ii) and (iii), 8 U.S.C. 1324(a)(1)(A)(ii) and (iii), constituted an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), despite parenthetical mentioning smuggling). Ninth Circuit ALIEN TRANSPORTATION United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. Mar. 27, 2001), amended, 255 F.3d 1154 (9th Cir. July 12, 2001) (federal conviction of transporting illegal aliens who were already in United States, in violation of INA 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), constituted an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), for purposes of enhancing sentence for illegal re-entry). Tenth Circuit ALIEN TRANSPORTATION United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (federal conviction of alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal re-entry sentence under U.S.S.G. 2L1.2(b)(1)(A)(vii) (2002) based on prior aggravated felony conviction). ALIEN TRANSPORTATION United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. Jan. 22, 2001) (federal conviction of transporting aliens, in violation of INA 274(a)(1)(A), 8 U.S.C. 1324(a)(1)(A), was an aggravated felony under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), for purposes of sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) of illegal re-entry sentence). BIA ALIEN TRANSPORTATION Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA Feb. 1, 1999) (federal conviction of transporting an illegal alien within the United States, in violation of INA 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), was an aggravated felony as defined in INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N), and therefore 148

11 triggers deportation under 8 U.S.C. 1251(a)(2)(A)(iii)), distinguishing Matter of IM, 7 I. & N. Dec. 389 (BIA Jan. 15, 1957)). A.7 Attempt A.7 First Circuit ATTEMPT THEFT Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. Feb. 21, 2001) (Rhode Island conviction of attempted theft and sentence to term of ten years imprisonment constituted an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), triggering deportation). 149

12 Second Circuit ATTEMPT Pierre v. Holder, 588 F.3d 767 (2d Cir. Dec. 8, 2009) (a charge under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), for attempt to commit fraud is not a lesser included offense under INA 101(a)(43)(M)(i); 8 U.S.C. 1101(a)(43)(M)(i); therefore where the victim suffered no actual loss, the DHS could not prove that the noncitizen was deportable under (M)(i)). FRAUD OFFENSES ATTEMPT Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) (federal conviction of attempted bank fraud, in violation of 18 U.S.C. 2, 1344, constitutes a fraud aggravated felony, under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), even though defendant was caught before any loss occurred), following Matter of Onyido, 22 I. & N. Dec. 522 (BIA 1999). ATTEMPT MURDER United States v. Morgan, 380 F.3d 698 (2d Cir. Aug. 19, 2004) (New York conviction for second-degree attempted murder, with sentence to indeterminate term of two-and-a-half to seven-and-a-half years imprisonment, properly treated as an aggravated felony for illegal re-entry sentencing purposes, even though it was not an aggravated felony under the relevant immigration statute at the time of the conviction). ATTEMPT ROBBERY United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. Jan. 29, 2002) (New York conviction for attempted robbery in the third degree, in violation of N.Y. Penal Law , met the definition of aggravated felony under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), for purposes of illegal re-entry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A), despite the argument that the New York statute defining attempt includes additional activity that is not included in attempt under federal law, since the court must consider state judicial decisions interpreting the state statute, and is not limited to the words of the statute itself). ATTEMPT POSSESSION OF COUNTERFEIT SECURITIES Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. 513(a), possession of counterfeit securities with intent to deceive, does not necessarily constitute an attempt to pass counterfeit securities and cause a loss, and is therefore not an attempt to commit an aggravated felony under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), for deportation purposes). 150

13 Lower Courts of the Second Circuit ATTEMPT TAX EVASION Evangelista v. Ashcroft, 232 F.Supp.2d 30 (E.D.N.Y. Nov. 22, 2002) (federal conviction of attempt to evade or defeat tax in violation of 26 U.S.C. 7201, charged as attempting to avoid an amount of tax liability in excess of $300,000, constituted an aggravated felony, under INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii), for deportation purposes). ATTEMPT SALE OF COCAINE United States v. Jimenez, 921 F.Supp (S.D.N.Y. Nov. 13, 1995), aff d, 131 F.3d 132 (2d Cir. Dec. 2, 1997) (Table) (New York convictions of attempted criminal sale of cocaine in the third degree constituted illicit trafficking in a controlled substance, and were therefore aggravated felonies under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), disqualifying the noncitizen from receiving voluntary departure). ATTEMPT SALE OF CONTROLLED SUBSTANCE Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. Aug. 8, 1990) (New York conviction for attempted criminal sale of controlled substances in the third degree, in violation of N.Y. Penal Law , constitutes an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), to trigger mandatory detention). Fifth Circuit ATTEMPT United States v. Ellis, 564 F.3d 370 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear, see N.C. Gen. Stat , (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a crime of violence under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term attempted more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase any step, was broader than the federal definition, but that Arizona courts interpreted the statute to mean substantial step ); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the slight act approach, but is coextensive with the federal, substantial step approach). 151

14 ATTEMPT United States v. Ellis, 564 F.3d 370 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear, see N.C. Gen. Stat , (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a crime of violence under USSG 4B1.2 for purposes of imposing an ACCA career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term attempted more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase any step, was broader than the federal definition, but that Arizona courts interpreted the statute to mean substantial step ); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the slight act approach, but is coextensive with the federal, substantial step approach). ATTEMPT United States v. Ellis, 564 F.3d 370 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2). CRIME OF VIOLENCE ATTEMPTED SEXUAL BATTERY United States v. Meraz-Enriquez, 442 F.3d 331 (5 th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann , which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force). Seventh Circuit AUTO BURGLARY Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir. Sept. 2, 2008) (Illinois conviction for auto burglary with intent to commit theft, in violation of 720 ILCS 5/19-1(a) is an aggravated felony attempted theft for immigration purposes). ATTEMPT AUTO BURGLARY United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct (2002) (Illinois conviction of burglary of vehicle with intent to commit theft constituted attempt, under INA 101(a)(43)(U), 152

15 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). Ninth Circuit ATTEMPT COMMERCIAL BURGLARY Hernandez-Cruz v. Holder, F.3d (9 th Cir. Jul.7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the modified categorical analysis, because [s]imply entering a commercial building... is not in itself a substantial step supporting attempted theft liability. ). ATTEMPT United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (California definition of attempt under Penal Code 21a is coextensive with the federal definition of attempt ; Because Saavedra-Velazquez has been unable to point to a case in which the requirement of a slight act rather than a substantial step has led to a different outcome under California law than it would at common law, and because Nevada's slight acts standard appears virtually identical to California's, we hold that an attempt under California law is coextensive with an attempt at common law. ). CONVICTION NATURE OF CONVICTION- CATEGORICAL ANALYSIS- REALISTIC PROBABILITY OF PROSECUTION United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (the decision in this case relied heavily on the realistic probability of prosecution test created by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815 (2007). The court found that although the California language differed, no California case was presented demonstrating the application of any test broader than the federal substantial step requirement. ATTEMPT United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. Aug. 21, 2009) (New York definition of attempt under N.Y. Penal Law , though sounding broader than the federal definition of attempt is, in application, more stringent than the federal test; attempt to commit robbery is therefore categorically a crime of violence for illegal reentry sentencing purposes). 153

16 THEFT OFFENSE AUTO BURGLARY CONSTITUTES ATTEMPTED THEFT Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. Sept. 24, 2008) (California conviction for entering locked vehicle with intent to commit theft, in violation of California Penal Code 459 is an aggravated felony for immigration purposes as attempted theft). ATTEMPT ARIZONA ATTEMPT IS BROADER THAN AGGRAVATED FELONY ATTEMPT Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS and (B), forbids conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U): "Arizona's definition of attempt under ARS is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizona's definition of attempt is satisfied if the defendant [i]ntentionally does or omits to do anything which... is any step in the crime. ARS (A)(2) (emphasis added); see State v. Fristoe, 135 Ariz. 25, 658 P.2d 825, (App.1982). Thus, attempted public sexual indecency to a minor under Arizona law is broader than attempted sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) and (U)", and an attempted offense, under Arizona law, does not categorically constitute an "attempt" under the aggravated felony definition of attempt in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)). ATTEMPT CALIFORNIA ATTEMPT IS ARGUABLY BROADER THAN FEDERAL AGGRAVATED FELONY ATTEMPT Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (California conviction of attempt to commit an offense "is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006)," attempt under California Penal Code 21a [requiring "a direct but ineffectual act done toward its commission,"] is broader than the federal statute, since California case law has consistently required only a " slight act"); see People v. Superior Court (Decker), 41 Cal.4th 1, 8 (2007); People v. Tillotson, 157 Cal. App. 4th 517 (2007); People v. Anderson, 1 Cal.2d 687, 690 (1934); People v. Berger, 131 Cal. App. 2d 127 (1955); People v. Memro, 38 Cal.3d at p. 658, 698 (1985); People v. Dillon, 34 Cal.3d 441, 455 (1983); People v. Morales, 5 Cal.App.4th 917, 926 (1992); People v. Fiegelman, 33 Cal. App. 2d 100 (1939). Since "slight acts" do not necessarily constitute the "substantial step" necessary to meet the federal definition of "attempt" that controls for purposes of immigration law, the statute is overbroad and the government bears the burden of proving that person is removable through the modified categorical analysis. Even if the state attempt statute is broader than the federal statute, under the modified categorical analysis a person can still 154

17 be found removable where the record shows that the person committed an overt act constituting a "substantial step" towards commission of the underlying offense. Criminal defense counsel must keep the record of conviction vague, or describe only a slight act. The government might argue that the issue is foreclosed by United States v. Sarbia, 367 F , 1082 (9th Cir. 2004), but there are strong arguments as to why Sarbia should not control, since the Ninth Circuit has made clear that its decisions interpreting USSG 4B1.1, like Sarbia, do not apply outside the context of that particular sentence guideline, because Commentary 1 is not constrained by the aggravated felony definition found at INA 101(a)(43) or by other statutes. United States v. Shumate, 329 F.3d 1026, 1030 n.5 (9th Cir. 2003); United States v. Vidal, 504 F.3d 1072, 1079 n.12 (9th 2007). As a result of this lack of constrain[t] found in USSG 4B1.2, the provision at issue in Sarbia, it is interpreted much more expansively than the definition of aggravated felony found in the Act. For example, the Ninth Circuit considers the list found at USSG 4B1.2, aiding and abetting, conspiring, and attempting, as non-exhaustive, and inclusive of other offenses such as solicitation. United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.2003). The aggravated 3 felony definition found at 8 U.S.C. 1101(a)(43)(U), on the other hand, is read as an exhaustive list, specifically excluding offenses such as solicitation. Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999). Sarbia is therefore inapplicable to the question of the definition of attempt found in the aggravated felony definition. INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U). The case which directly controls the Ninth Circuit on this point is Rebilas v. Keisler, which directly interprets the aggravated felony definition of attempt. Even if Sarbia did apply in the immigration context, it has been overruled. Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007). See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986) (recognizing implicit overruling); United States v. Reed, 80 F.3d 1419, (9th Cir. 1996) (same). This conclusion is inevitable because to reconcile the two cases would be to find a meaningful difference between taking any step to commit a crime, and making some act to commit the crime. It is worth noting that Sarbia has also been implicitly overruled on another of its key holdings. In Sarbia, the Ninth Circuit held that shooting into an inhabited dwelling was a crime of violence under the Sentencing Guidelines, citing a 1993 decision holding that a similar California conviction (Penal Code 246) had been held to be a crime of violence. Sarbia, 367 F.3d at 1088 (citing United States v. Weinert, 1 F.3d 889 (9th Cir (per curiam)). In 2007, however, the Ninth Circuit held that shooting into an inhabited dwelling under California law was not categorically a crime of violence. United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007). In so holding, the Ninth Circuit cited neither Weinert nor Sarbia. Nonetheless, Narvaez- Gomez implicitly overruled those cases. ATTEMPT SALE OF A CONTROLLED SUBSTANCE United States v. Hernandez- Valdovinos, 352 F.3d 1243 (9th Cir. Dec. 17, 2003) (Arizona attempted sale conviction, in violation of A.R.S , constituted drug trafficking offense for illegal re-entry sentence enhancement purposes, under U.S.S.G. 2L1.2). 155

18 ATTEMPT ASSAULT WITH DEADLY WEAPON United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. July 26, 2000) (Arizona conviction for attempted aggravated assault with a deadly weapon or deadly instrument, in violation of Ariz. Rev. Stat and (A)(2) and (B), constitutes an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)). Tenth Circuit ATTEMPT POSSESSION OF STOLEN PROPERTY United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sept. 13, 2001), cert. denied, 122 S.Ct (2002) (Utah conviction for knowingly attempting to receive or transfer a stolen motor vehicle, in violation of Utah Code 41-1a-1316 (1953), was an aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for enhancement purposes under U.S.S.G. 2L1.2(b)(2) of an illegal re-entry sentence). ATTEMPT RECEIPT OF STOLEN PROPERTY Matter of Bahta, 22 I. & N. Dec (BIA Oct. 4, 2000) (Nevada conviction for attempted possession of stolen property, in violation of Nevada Revised Statutes and , is a conviction for an attempted theft offense (including receipt of stolen property), and therefore an aggravated felony, within the meaning of INA 101(a)(43)(G) and (U), 8 U.S.C. 1101(a)(43)(G) and (U)). ATTEMPT POSSESSION OF A CONTROLLED SUBSTANCE United States v. Lugo, 170 F.3d 996, 51 Fed. R. Evid. Serv. 918 (10th Cir. Mar. 11, 1999) (Utah conviction of attempted possession of a controlled substance, in violation of U.C.A.1953, (1)(a)(ii), constituted an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry). Eleventh Circuit ATTEMPT SALE OF A CONTROLLED SUBSTANCE United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (state conviction of attempted sale of a controlled substance is a drug trafficking offense for sentencing purposes). BIA ATTEMPT RECEIPT OF STOLEN PROPERTY Matter of Bahta, 22 I. & N. Dec (BIA Oct. 4, 2000) (Nevada conviction for 156

19 attempted possession of stolen property, in violation of Nevada Revised Statutes and , is a conviction for an attempted "theft offense (including receipt of stolen property)," and therefore an aggravated felony, within the meaning of INA 101(a)(43)(G) and (U), 8 U.S.C. 1101(a)(43)(G) and (U)). ATTEMPT SUBMITTING FALSE CLAIM Matter of Onyido, 22 I. & N. Dec. 552 (BIA Mar. 4, 1999) (en banc) (Indiana conviction of submitting a false claim with intent to defraud, in violation of Indiana Code (10), a Class D felony for which the respondent received the maximum penalty of three years confinement, arising from an unsuccessful scheme to obtain $15,000 from an insurance company, was a conviction of an attempt to commit a fraud in which the loss to the victim exceeded $10,000, which was an aggravated felony within the meaning of INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), triggering deportation under 8 U.S.C. 1251(a)(2)(A)(iii) (1994)). ATTEMPT MURDER Matter of Punu, 22 I. & N. Dec. 224 (BIA Aug. 18, 1998) (Texas conviction of attempted murder constitutes aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A) for deportation purposes). ATTEMPTED MANSLAUGHTER CRIME OF VIOLENCE Matter of Yeung, 21 I. & N. Dec. 610 (BIA Nov. 27, 1996) (Florida conviction of attempted manslaughter with a knife constituted an aggravated felony as crime of violence with sentence imposed of one year or more under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes). A.8 Bribery Commercial COMMERCIAL BRIBERY WITNESS BRIBERY Matter of Gruenangerl, 25 I. & N. Dec. 351, 356 (BIA 2010) (federal conviction of bribery of a public official, for the purpose of influencing official action, in violation of 18 U.S.C. 201(b)(1)(A) (2006), is not an offense relating to commercial bribery and is therefore not an aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R) (2006)), even though the phrase relating to, as it is used in section 101(a)(43)(R), encompasses a broad range of conduct). A.8 A.9 Bribery of Witness A.9 [No Cases Yet: Check the on-line version of this Appendix for updates at: 157

20 A.10 Burglary A.10 Fifth Circuit BURGLARY United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. May 22, 2008) (California conviction for burglary, in violation of Penal Code 459, was not a burglary of a dwelling for illegal re-entry sentencing purposes because the California statute may be committed without an unlawful or unprivileged entry), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir.2007). BURGLARY UNLAWFUL ENTRY REQUIREMENT United States v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. Feb. 1, 2008) (California conviction for violation of Penal Code 459 is not categorically a crime of violence for illegal-reentry sentencing purposes, because the state statute does not require as an element that the entry be unlawful [i.e. without consent]), following United States v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007) (California conviction under Penal Code 459 for residential burglary does not constitute a crime of violence for purposes of U.S.S.G. 2L1.2(b)(1)(A)). CRIME OF VIOLENCE BURGLARY United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (Missouri conviction for burglary, in violation of Mo. Ann. Stat , is a crime of violence for illegal re-entry sentencing purposes where the indictment shows that the offense involved residential burglary, an offense enumerated as a crime of violence.) BURGLARY CRIME OF VIOLENCE United States v. Castillo-Morales, 507 F.3d 873 (5th Cir. Nov. 8, 2007) (illegal reentry sentence is affirmed where there was no error in a 16-level offense enhancement, since relevant Florida court documents indicated that defendant committed the "crime of violence" of "burglary of a dwelling," as enumerated in U.S.S.G. 2L1.2). BURGLARY United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. Jun. 25, 2007) (Tennessee conviction of burglary of a dwelling, in violation of Tenn. Code Ann , is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the statute of conviction punishes burglary where the intent to commit the crime was not formed until after the actor unlawfully enters or remains in a dwelling). CRIME OF VIOLENCE BURGLARY United States v. Davis, 487 F.3d 282 (5th Cir. May 17, 2007) (Texas robbery conviction, 158

21 in violation of Penal Code 29.02(a), is a crime of violence for purposes of the Armed Career Criminal Act). BURGLARY FLORIDA BURGLARY NOT AN AGGRAVATED FELONY United States v. Gomez-Guerra, 485 F.3d 301 (5th Cir. April 23, 2007) (Florida conviction for burglary, in violation of Florida Statute (3) (1995), which forbids not only entry into a structure but also entry into its curtilage, where the charge was in accord, including the words "or the curtilage," did not constitute a crime of violence, pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ( burglary of a dwelling under USSG 2L1.2 cmt. n.1(b)(iii)), for purposes of imposing a 16-level enhancement to a sentence for illegal reentry after deportation, since the ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself), citing United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005) (Texas conviction of burglary of a habitation, in violation of Texas Penal Code 30.02, is equivalent to the enumerated [crime of violence] offense of burglary of a dwelling ); cf. James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1599 (2007) ( We agree that the inclusion of curtilage takes Florida's underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure. ) (emphasis in original), citing Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). BURGLARY AUTO Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code 30.04(a), with suspended sentence of four years imprisonment, was not a burglary offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) sufficient to render noncitizen deportable). Lower Courts of the Fifth Circuit BURGLARY Rios-Delgado v. United States, 117 F.Supp.2d 581 (W.D.Tex. Oct. 11, 2000) (California: trial counsel was ineffective in failing to object, at sentencing, that defendant s prior conviction for commercial burglary was not an aggravated felony, for sentence enhancement purposes, under the soon-to-be-announced rule of United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by a noncitizen under 18 U.S.C. 922(g)(5) does not constitute an aggravated felony for purposes of increasing the defendant s offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. 2L1.2(b)(2), since it is not one of the five paragraphs of INA 101(a)(43), 8 U.S.C. 1101(a)(43) that are expressly incorporated into that guideline, although, in dictum, the court said the conviction does constitute an aggravated felony for immigration purposes)). 159

22 Seventh Circuit BURGLARY AUTO ATTEMPT United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct (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 under U.S.S.G. 2L1.2(b)(1)(A) an illegal re-entry sentence, 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). BURGLARY AUTO Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. Mar. 10, 2000) (Illinois conviction of burglary of automobile, in violation of 720 ILCS 5/19-1(a), was not an aggravated felony burglary offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) that would trigger deportation). Ninth Circuit AGGRAVATED FELONY BURGLARY BURGLARY OF A DWELLING United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (Utah conviction of second-degree burglary of a dwelling, under Utah Code Ann (2), did not categorically constitute a burglary of a dwelling crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) & n.1(b)(iii), because Utah law defined dwelling more broadly than it is defined in the federal Guidelines definition of burglary of a dwelling ); following United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation; courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling. ; A non-building adapted for accommodation e.g., a vehicle or boat may still qualify as a dwelling under the Guidelines, but it does not do so categorically. ). BURGLARY BURGLARY United States v. Aguila-Montes de Oca, 655 F.3d 915 (9 th Cir. Aug. 11, 2011) (en banc) (California conviction of burglary, under Penal Code 459, does not qualify as a generic burglary conviction for illegal re-entry sentencing purposes, even if the defendant pleaded guilty to entering a building unlawfully or a jury found the defendant guilty as 160

23 charged in an indictment reciting that allegation, since the California definition of unlawful entry includes a licensed or privileged entry into a building with intent to commit a crime, where the generic definition of burglary requires that the entry itself be unlicensed or unprivileged). BURGLARY BURGLARY United States v. Snyder, 643 F.3d 694 (9 th Cir. Jun. 30, 2011) (Oregon conviction for violation of ORS , second degree burglary, is a burglary offense for purposes of the Armed Career Criminal Act; although Oregon definition of building may not coincide with the generic definition, the charging document made clear that the defendant entered a generically defined building). BURGLARY BURGLARY United States v. Aguila-Montes, 553 F.3d 1229 (9th Cir. Jan. 20, 2009), on rehearing withdrawing and superseding previous opinion, 523 F.3d 1071 (California conviction for first-degree residential burglary, in violation of Penal Code 459, could not categorically constitute a crime of violence (burglary of a dwelling) under USSG 2L1.2(b)(1)(A), cmt. n. 1(B)(iii), so as to warrant 16-level enhancement of sentence for illegal reentry, because the California offense encompasses a broader range of proscribed conduct than does the generic offense of the Guidelines since it does not require that the entry be unlawful or unprivileged as the federal definition does), following United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th Cir. 2005). BURGLARY United States v. Grisel, 488 F.3d 844 (9th Cir. Jun. 5, 2007) (en banc) (Oregon conviction of second-degree burglary, in violation of Or.Rev.Stat (1), is not a categorical burglary for purposes of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), to apply a sentence enhancement requiring a minimum of 180 months in prison, because it encompasses burglary of non-buildings, and therefore falls outside the federal definition of generic burglary), overruling United States v. Cunningham, 911 F.2d 361 (9th Cir. 1990) (Oregon conviction of second-degree burglary is a categorical burglary under Taylor v. United States, 495 U.S. 575 (1990), for purposes of applying the Armed Career Criminal Act). BURGLARY UNLAWFUL ENTRY United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir. Jan. 5, 2005) (California: because defendant s guilty plea to California residential burglary included the word unlawfully, the conviction satisfied the unlawful entry requirement absent in California s statutory definition of burglary under Penal Code 459, and constituted an aggravated felony for purposes of triggering enhancement of illegal re-entry sentence for crime of violence under Sentencing Guidelines). BURGLARY United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2002) (California conviction of second-degree burglary, in violation of California Penal Code 161