Vanegas-Martinez v. Attorney General of the United States , 399 F. App'x 728 ( 2010 )

Menu:

                                                      NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3400
___________
JOSE RONALD VANEGAS MARTINEZ
a/k/a Jose Vanegas,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A037-010-358)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 6, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed October 8, 2010)
___________
OPINION
___________
PER CURIAM
Jose Ronald Vanegas-Martinez, a citizen of El Salvador, petitions for review of the
Board of Immigration Appeals=s (ABIA@) dismissal of his appeal. For the following
reasons, we will deny the petition for review.
I.
The petitioner entered the United States in 1980 as a lawful permanent resident.
He was convicted in New Jersey in 2003 of third-degree attempted theft and received a
sentence of probation. In 2006, he pled guilty to fourth-degree criminal sexual conduct
and received a sentence of one year in prison. His probation for the 2003 theft conviction
was also revoked, and he was re-sentenced to three years in prison (to be served
concurrently with the criminal sexual conduct sentence).
Thereafter, the petitioner was charged as removable under 8 U.S.C. ''
1227(a)(2)(A)(iii) and 1227(a)(2)(A)(ii). The Immigration Judge (AIJ@) found the
petitioner removable under 8 U.S.C. ' 1227(a)(2)(A)(ii), for having committed two
crimes of moral turpitude unrelated to each other. The petitioner applied for cancellation
of removal pursuant to 8 U.S.C. ' 1229b(a), claiming that he was eligible for such relief
because he had not been convicted of an aggravated felony. However, the IJ concluded
that, because the petitioner had been sentenced to three years= imprisonment for the 2003
theft conviction, he was an aggravated felon and thus ineligible for cancellation of
removal. See 8 U.S.C. ' 1101(a)(43)(G) (defining an aggravated felony as, among other
things, a theft offense with a term of imprisonment greater than one year).
On appeal to the BIA, the petitioner argued that his theft conviction does not
constitute an aggravated felony because he was only sentenced to probation. He asserts
2
that he was sentenced to three years in prison for violating his probation, not for the
underlying offense. The BIA rejected this argument, concluding that under Supreme
Court precedent and New Jersey state law, A[t]he imposition of a sentence of
imprisonment following revocation of probation is a modification of the original
sentence, not a punishment for the conduct leading to revocation, and therefore must be
considered part of the actual sentence imposed.@ (A.R. 3.) It thus determined that the
three-year prison sentence that was imposed after the petitioner=s probation was vacated
made the theft conviction an aggravated felony. Consequently, the petitioner was
ineligible for cancellation of removal.
The petitioner now seeks this Court=s review of the BIA=s decision. The
government opposes the petition.
II.
We have jurisdiction over the petition for review under 8 U.S.C. ' 1252(a)(1), and
exercise de novo review over the conclusion that the petitioner is an aggravated felon.
See, e.g., Bobb v. Att=y Gen.,

458 F.3d 213

, 217 (3d Cir. 2006). The petitioner renews his
argument that the three-year prison sentence was punishment for violating the terms of his
probation and not punishment for the original theft offense. He thus asserts that he is not
an aggravated felon and is eligible for cancellation of removal.
This Court considers the term of imprisonment that was actually imposedCand not
the sentence that was statutorily possibleCto determine, for purposes of 8 U.S.C. '
3
1101(a)(43)(G), whether the Aterm of imprisonment [was] at least one year.@ See United
States v. Graham,

169 F.3d 787

, 790-91 (3d Cir. 1999). Although the petitioner was
initially sentenced to probation for the theft conviction, a change of judgment as to that
conviction was entered on August 3, 2006, stating that the petitioner=s Aprior sentence . . .
is hereby vacated@ and that the petitioner was to be imprisoned for Aa term of three (3)
years to run concurrent with@ his sentence for the criminal sexual conduct conviction.
(A.R. 82-83.)
The BIA correctly stated that a sentence imposed after a probation violation is
generally considered to be a modification of the original sentence, and should, therefore,
be treated as the term Aimposed@ for the conviction. See, e.g., United States v. Compian-
Torres,

320 F.3d 514

, 516 (5th Cir. 2003); United States v. Hidalgo-Macias,

300 F.3d 281

, 284-85 (2d Cir. 2002); United States v. Jimenez,

258 F.3d 1120

 (9th Cir. 2001).
New Jersey follows this general rule. See N.J. Stat. Ann. ' 2C:45-3(a)(4)(b) (AWhen the
court revokes a suspension or probation, it may impose on the defendant any sentence that
might have been imposed originally for the offense of which he or she was convicted.@);
State v. Kearns,

922 A.2d 813

, 815 (N.J. Super Ct. 2007) (A[A] sentence imposed after
revocation of probation should be viewed as focusing on the original offense rather than
on the violation of probation as a separate offense.@) (internal citation omitted). Thus,
despite the petitioner=s arguments to the contrary, the BIA committed no error when it
4
treated the three-year prison sentence as the punishment for the theft offense.1 The
petitioner was therefore properly considered to be an aggravated felon under 8 U.S.C. '
1101(a)(43)(G), which in turn makes him statutorily ineligible for cancellation of
removal. See 8 U.S.C. ' 1229b(a)(3).
Based on the foregoing, we will deny the petition for review. We deny as moot the
government=s motion to summarily dismiss the petition.
1
We have reviewed the cases upon which the petitioner relies and conclude
that they are distinguishable from the present case. See, e.g., United States v. Guzman-
Bera,

216 F.3d 1019