Lecky v. Holder , 723 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2401
COURTNEY WAYNE LECKY,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Thompson,
Circuit Judges.
Glen L. Formica, with whom Formica Williams, P.C. was on
brief, for petitioner.
Matthew B. George, Trial Attorney, Office of Immigration
Litigation, with whom Stuart F. Delery, Principal Deputy, Assistant
Attorney General and Lyle D. Jentzer, Senior Litigation Counsel,
Office of Immigration Litigation were on brief, for respondent.
July 9, 2013
HOWARD, Circuit Judge. Courtney Lecky, a citizen and
native of Jamaica, petitions this court for review of his removal
order. The Board of Immigration Appeals ("BIA") affirmed Lecky's
removability for having committed an aggravated felony offense. We
deny the petition.
I.
Lecky entered the United States in 1996 as a lawful
permanent resident. In June 2006, the state of Connecticut charged
Lecky with committing robbery and criminal assault for taking
property from an individual outside of a Dunkin' Donuts in
Stamford, Connecticut. The state later changed the charged offense
to second-degree larceny, see Conn. Gen. Stat. § 53a-123(a)(3), to
which Lecky pleaded guilty under the Alford doctrine in November
2006.1 Although Lecky was seventeen at the time, he was convicted
as an adult and sentenced to two years and a day of incarceration
and five years of special parole.
In February 2012, the Department of Homeland Security
("DHS") initiated removal proceedings against Lecky, alleging that
Lecky was removable because he had been convicted of an aggravated
felony, specifically a theft offense. In May 2012, Lecky appeared
before an immigration judge ("IJ") and denied the charge of
removability. The IJ sustained the charge.
1
This doctrine allows a defendant to plead guilty without
admitting the truth of any or all of the facts essential to the
conviction. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
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Lecky filed an application for cancellation of removal
under 8 U.S.C. § 1229b, arguing that his conviction was not an
aggravated felony that rendered him ineligible for cancellation of
removal. Meanwhile, DHS added a second charge of removability
against Lecky: conviction of a "crime of violence" aggravated
felony based on the same Connecticut second-degree larceny
conviction. At a July 2012 hearing, the IJ sustained the second
charge, pretermitted Lecky's application for cancellation, and
ordered Lecky removed to Jamaica.
Lecky appealed this decision to the BIA, again claiming
that his conviction for second-degree larceny under Connecticut
state law was not an aggravated felony as defined by federal
statutes. See 8 U.S.C. § 1101(a)(43)(G) (defining "theft
offense"); 18 U.S.C. § 16 (defining "crime of violence"). He also
argued that he should not have been eligible for removal because he
was under eighteen at the time of conviction, and furthermore that
an Alford plea cannot subject an alien to removal.
The BIA rejected each of Lecky's arguments. First,
relying on Second Circuit precedent, it concluded that Connecticut
larceny in the second degree is a theft offense aggravated felony.
See Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (holding that
third-degree larceny under Connecticut law qualifies as a theft
offense aggravated felony); Almeida v. Holder, 588 F.3d 778 (2d
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Cir. 2009) (reaching the same conclusion for second-degree larceny
under Connecticut law).
As to Lecky's conviction for a crime of violence, the BIA
looked to see whether the offense, "by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense."
18 U.S.C. § 16(b). The BIA noted that Lecky was convicted under
paragraph 53a-123(a)(3) of the state statute, which specifically
applies when property "is taken from the person of another." It
then cited Connecticut case law stating that "a risk of injury
invariably accompanies" this form of larceny, and that it poses "a
serious potential source of harm." State v. Wright, 716 A.2d 870,
878 (Conn. 1998). Based on that language, the BIA held that
Lecky's conviction under paragraph 53a-123(a)(3) qualified as a
crime of violence. It buttressed this reasoning with First Circuit
opinions that reached similar conclusions for analogous crimes.
See, e.g., United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.
1993) (holding that larceny from the person, under Massachusetts
law, qualifies as a "crime of violence" under the career offender
guideline).
The BIA also rejected Lecky's argument that he should
have been treated as a juvenile offender for immigration purposes,
citing First Circuit precedent as well as its own case law. See
Vieira García v. I.N.S., 239 F.3d 409, 413 (1st Cir. 2001)
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(rejecting the argument that federal law should determine whether
a minor can be convicted as an adult); Matter of Devison-Charles,
22 I. & N. Dec. 1362, 1372 (BIA 2001) (similar). Finally, it
concluded that an Alford plea is a guilty plea, and thus deserves
no special treatment when determining whether an alien has been
convicted of an aggravated felony. Lecky petitioned this court for
review.
II.
In his petition, Lecky challenges two of the BIA's
conclusions: 1) that larceny in the second degree under
Connecticut law qualifies as an aggravated felony; and 2) that
Lecky was properly and validly convicted as an adult for
immigration purposes. These two determinations are both purely
legal, and thus we review them de novo, albeit "with deference
accorded to [the BIA's] reasonable interpretation of statutes and
regulations falling within its bailiwick." Segran v. Mukasey, 511
F.3d 1, 5 (1st Cir. 2007). We afford no deference, however, to the
BIA's interpretation of Connecticut state law, as the BIA "is not
charged with the administration of these laws." Ming Lam Sui v.
I.N.S., 250 F.3d 105, 112 (2d Cir. 2001).
1. Aggravated Felony
The BIA affirmed two distinct grounds for Lecky's
removability, concluding that Connecticut second-degree larceny
qualifies as both a theft offense aggravated felony and a crime of
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violence aggravated felony. Since either determination was
sufficient to uphold Lecky's order of removal, we limit our
analysis to the BIA's conclusion that the statute in question meets
the definition of a theft offense without reaching the question of
whether it also qualifies as a crime of violence.
Federal law authorizes the deportation of "[a]ny alien
who is convicted of an aggravated felony at any time after
admission" into the United States. 8 U.S.C. § 1227(a)(2)(A)(iii).
The list of qualifying aggravated felonies, see id. § 1101(a)(43),
does not precisely correspond to state criminal codes. Therefore,
the BIA and courts of appeal must often ascertain whether a
particular state law fits within the enumerated aggravated
felonies. To carry out this task, we have adopted, with slight
modification, the two-step test that courts use to determine
whether a state conviction qualifies as a "violent felony" under
the Armed Career Criminal Act, 18 U.S.C. § 924(e), and similar
sentencing statutes. See Conteh v. Gonzales, 461 F.3d 45, 54-56
(1st Cir. 2006); see also Taylor v. United States, 495 U.S. 575,
602 (1990) (establishing a "categorical approach" for determining
if state convictions qualify as violent felonies).
Under this "modified categorical approach," we first look
to see whether "the statute underlying the prior conviction
necessarily involves every element of [an aggravated felony]."
Conteh, 461 F.3d at 53. If so, the mere fact of conviction
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suffices to prove the conviction of an aggravated felony offense.
However, where the underlying statute covers both conduct that fits
within the aggravated felony scheme as well as conduct falling
outside of that scheme, "the government bears the burden of
proving, by clear and convincing evidence derived solely from the
record of the prior proceeding, that (i) the alien was convicted of
a crime and (ii) that crime involved every element of one of the
[aggravated felony] offenses." Id. at 55. When a statute includes
non-aggravated felony conduct, we refer to that statute as
"divisible."
One of the enumerated aggravated felonies for which an
alien may be deported is "a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment [is] at least one year."2 8 U.S.C. § 1101(a)(43)(G).
The BIA has concluded that a "theft offense" occurs "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." Matter of V-Z-S-, 22 I. & N. Dec. 1338, 1346 (BIA
2000). We accept this definition, as it is neither "arbitrary,
capricious, [n]or manifestly contrary to the statute." Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
(1984); see Vásquez v. Holder, 635 F.3d 563, 567-68 (1st Cir. 2011)
2
There is no dispute that Connecticut second-degree larceny
carries with it a sentence of at least one year. See Conn. Gen.
Stat. § 53a-35a(7).
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(applying Chevron deference to the BIA's interpretation of its own
statutes); see also Almeida, 588 F.3d at 785 (affirming the BIA's
interpretation of "theft offense"); Burke v. Mukasey, 509 F.3d 695,
697 (5th Cir. 2007) (per curiam) (adopting a nearly identical
definition of the term "theft offense").
Lecky argues that Connecticut second-degree larceny is a
divisible statute, since it includes certain actions that do not
fit within the BIA's definition of theft offense. The relevant
paragraph under which Lecky was convicted states that "[a] person
is guilty of larceny in the second degree when he commits larceny,
as defined in section 53a-119, and . . . the property, regardless
of its nature or value, is taken from the person of another."
Conn. Gen. Stat. § 53a-123(a)(3). Under section 53a-119, "[a]
person commits larceny when, with intent to deprive another of
property or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or withholds such property from an
owner." Id. § 53a-119. Lecky does not argue that this language,
read on its own, encompasses non-theft offenses. Instead, Lecky
focuses all of his attention on a non-exhaustive list of example
offenses listed in section 53a-119. According to Lecky, several of
the example offenses in that list -- including "mutilat[ing] a book
or other archival library material," id. § 53a-119(12)(B),
"obtain[ing] . . . wireless radio communications, id. § 53a-
119(15), and "obtain[ing] property from [another] person . . . by
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knowingly installing or reinstalling any object in lieu of an air
bag," id. § 53a-119(16) -- do not constitute theft offenses as
defined by the BIA, and therefore the BIA erred in determining that
Connecticut second-degree larceny is a categorical theft offense.
There are two problems with Lecky's argument. First, we
are not convinced that this list is relevant to determining the
elements of Lecky's offense. While there is no doubt that all of
these example offenses constitute some form of larceny under
Connecticut law (the statute plainly says so), Lecky was not
charged with generic larceny, but rather with taking property from
the person of another under paragraph 53a-123(a)(3). It is
difficult to fathom how one could commit air bag fraud or wireless
radio theft from the person of another, yet Lecky is asking us to
assume that impossibility when analyzing the elements of his
charged crime. Since the list of example offenses clearly does not
apply wholesale to paragraph 53a-123(a)(3), the list is of limited
value in determining what conduct falls under that provision.
Moreover, even if these example offenses are relevant to
defining paragraph 53a-123(a)(3), they all fit squarely within the
BIA's formulation of "theft offense." The BIA has made it clear
that a theft offense requires the intent to deprive an owner of
property rights, but such deprivation need not be permanent nor
total. See Matter of V-Z-S-, 22 I. & N. Dec. at 1345-46. All of
the examples found in section 53a-119 involve both a deprivation of
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ownership rights and an intent to effectuate that deprivation. See
Abimbola, 378 F.3d at 180 ("The most reasonable construction of
section 53a-119 includes reading the intent to deprive requirement
into all of the subsections."). That is enough to satisfy the
BIA's definition of a theft offense.
Nor do we agree with Lecky that the example offenses in
section 53a-119 include "de minimis deprivation[s] of ownership
interests." Matter of V-Z-S-, 22 I. & N. Dec. at 1346 ("Not all
takings of property, however, will [qualify as theft offenses]
because some takings entail a de minimis deprivation of ownership
interests."). They all appear to touch on meaningful ownership
rights, and Lecky has provided no authority to the contrary.
We need not elaborate this point further. The Second
Circuit, which has long experience and profound expertise in
Connecticut law, in two well-reasoned opinions has held that
Connecticut's second-degree larceny and third-degree larceny
offenses both qualify as theft offenses under 8 U.S.C. §
1101(a)(43)(G). See Almeida, 588 F.3d at 788; Abimbola, 378 F.3d
at 180. Like the BIA, we consider these cases both on point and
persuasive. The Second Circuit has considered variations on
Lecky's argument, and rejected them, and he has not convinced us to
part ways with those opinions. We conclude that Connecticut
General Statute § 53a-123(a)(3) is a categorical theft offense, and
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therefore that Lecky's conviction alone suffices to establish a
conviction of a theft offense aggravated felony.
2. Lecky's Status at Conviction
Lecky's second argument -- that his conviction as an
adult was invalid because he was only seventeen at the time of his
plea -- is entirely foreclosed by our decision in Vieira García,
239 F.3d at 409. In that case, we decided that "[n]either we nor
the BIA have jurisdiction to determine how a state court should
adjudicate its defendants. Once adjudicated by the state court,
either as a juvenile or an adult, we are bound by that
determination." Id. at 413; see also 28 U.S.C. § 1738. We are
similarly bound by our prior precedent, making Lecky's argument a
non-starter. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25,
33 (1st Cir. 2010) ("[N]ewly constituted panels in a multi-panel
circuit court are bound by prior panel decisions that are closely
on point.").
III.
For the foregoing reasons, we deny Lecky's petition.
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