Appeals from the United States District Court for the Southern District of Texas.
For United States of America, Plaintiff - Appellee: James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX.
For Eduardo Rodriguez-Salazar, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.
Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges. SOUTHWICK, Circuit Judge, concurring.
REAVLEY, Circuit Judge
The sentence of Appellant Rodriguez-Salazar was enhanced because of his prior conviction for the Texas crime of theft, determined by the district judge to be an aggravated felony. Appellant appeals only that sentence enhancement. We hold that the Texas law for theft without effective consent is in the same category as theft without consent, and affirm.
Appellant Rodriguez pleaded guilty of being an alien present in the United States after deportation and conceded that he had been previously convicted of felony theft under Texas Penal Code § 31.03(a). That Texas theft statute states the offense as the appropriation of property " without the owner's effective consent." Tex. Penal Code § 31.03(b)(1).
And the consent to temporary possession is not effective if it was induced by deception or coercion. The previous section, § 31.02, explains that Section 31.03 supersedes many separate offenses, such as theft, theft by false pretext, acquisition of property by threat, etc.
The district court enhanced the offense points eight points for appellant's sentence because of the conviction for aggravated felony directed by guideline § 2L1.2(b)(1)(C), aggravated felony being defined by the commentary and 8 U.S.C. § 1101(a)(43)(G) as " a theft offense (including receipt of stolen property)."
This court has adopted this further definition: " 'theft offense (including receipt of stolen property)' is a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (citations omitted).
Appellant insists that the Texas statute in defining theft to include the taking of property from the owner with consent induced through deception or coercion substantially changes the crime from generic theft that is the taking of property without the owner's consent.
Our task is to determine whether the Texas offense is comparable to and categorically fits within the generic federal definition of the corresponding crime of theft. We must ask if the state would apply its statute to conduct that falls outside the generic definition of ...