Rodulfo v. Mukasey ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 20, 2009
No. 08-60071
Summary Calendar Charles R. Fulbruge III
Clerk
ANTHONY FRANK RODULFO
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98 236 859
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Anthony Frank Rodulfo, a Peruvian citizen, was found removable by the
Board of Immigration Appeals because, inter alia, he was convicted of a
Massachusetts receipt-of-a-stolen-vehicle offense—an aggravated felony.
Rodulfo petitions for review of this decision.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-60071
Rodulfo claims: the documents used to determine he was convicted of the
offense and sentenced to one year of imprisonment were not properly
authenticated; and there was no judgment of conviction clearly describing a
finding of guilt and imposing a sentence. Additionally, concerning the
determination that he was sentenced to at least one year of imprisonment,
Rodulfo claims: his 11-month suspended sentence should not have been counted;
and his one-month term of incarceration should not have been counted because
it was merely a condition of his suspended-sentence probation.
Because Rodulfo was ordered removed for an aggravated-felony conviction,
our jurisdiction is limited to questions of law. See 8 U.S.C. §§ 1252(a)(2)(C),
1252(a)(2)(D). Whether Rudolfo’s offense was an aggravated felony is a question
of law. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir. 2006). On
the other hand, our court “lack[s] jurisdiction to review issues of fact pertaining
to the discretionary decisions of the BIA”, including, inter alia, that Rodulfo:
was convicted of the offense; and was sentenced to one year of imprisonment,
with 11 months suspended. Andrade v. Gonzales, 459 F.3d 538, 542 (5th Cir.
2006), cert. denied, 549 U.S. 1132 (2007). See also 8 U.S.C. §§ 1252(a)(2)(C),
1252(a)(2)(D).
Whether Rudolfo’s offense was an aggravated felony is significant because
“[a]ny alien who is convicted of an aggravated felony at any time after admission
is deportable”. See 8 U.S.C. § 1227(a)(2)(A)(iii). Rudolfo’s offense is an
aggravated felony if it is a “theft offense” for which a sentence of at least one
year was imposed. 8 U.S.C. § 1101(a)(43)(G).
We first consider, therefore, whether Rudolfo’s offense is a “theft offense”.
Our court has defined a theft offense, including receipt of stolen property, as “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).
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When determining whether a theft offense, including receipt of stolen
property, qualifies as an aggravated felony, our court employs “a categorical
approach in which we look at the statute under which the alien was convicted
rather than at the particular underlying facts”. Omari v. Gonzales, 419 F.3d
303, 307 (5th Cir. 2005). “If the statute of conviction defines multiple offenses,
at least one of which does not describe an aggravated felony”, a “modified
categorical approach” is used to determine whether the conviction is an
aggravated felony. Larin-Ulloa, 462 F.3d at 464 (citing Shepard v. United
States, 544 U.S. 13, 20-21, 26 (2005)).
The modified categorical approach permits examination of the conviction
record to determine which of a divisible statute’s multiple offenses was the basis
for the conviction. Omari, 419 F.3d at 308. Examination of the conviction
record, for guilty-plea convictions, “may include consideration of the ‘charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented’”. Id. (quoting
Shepard, 544 U.S. at 16).
Rodulfo’s guilty plea and sentence are referenced in a document entitled
“Tender of Plea or Admission & Waiver of Right”. Rodulfo submitted a certified
copy of this document to the BIA; he does not claim his own copy of this
document is defective in any way; and Immigration and Customs Enforcement’s
copies of this document, as well as the docket sheet reflecting the revocation of
parole and the criminal complaint, were all verified by a state-court assistant
clerk. The “Tender of Plea” document has been sufficiently verified for the
purpose of proving Rodulfo’s conviction. See 8 C.F.R. § 1003.41(c).
Moreover, under Massachusetts law, the criminal complaint may serve as
a charging instrument. See, e.g., United States v. Estevez, 419 F.3d 77, 82 (1st
Cir. 2005) (upholding district court’s use of a criminal complaint pursuant to
Shepard). A defendant in Massachusetts who does not agree with the State on
the disposition of his case may enter a guilty plea, along with a request for a
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No. 08-60071
particular disposition. MASS. GEN. LAWS ANN. ch. 278 § 18. Under
Massachusetts law, therefore, the criminal complaint may be used to prove
Rodulfo’s conviction to the extent that it sets out the charges against him; and
the “Tender of Plea” document may be used to prove his conviction, as it
indicates Rodulfo pleaded guilty to the charge alleged in the complaint and was
sentenced to one year of imprisonment, with 11 months suspended. See
Shepard, 544 U.S. at 16; Omari, 419 F.3d at 308.
Rodulfo’s criminal complaint states he was charged with “Motor Veh.
Receive Stolen c266 § 28(a)”, and alleges that he “did buy, receive, possess,
conceal or obtain control of a motor vehicle or trailer . . . knowing or having
reason to know the same had been stolen”. Massachusetts’ relevant vehicle-theft
statute provides:
Whoever steals a motor vehicle or trailer, whoever maliciously
damages a motor vehicle or trailer, whoever buys, receives,
possesses, conceals, or obtains control of a motor vehicle or trailer,
knowing or having reason to know the same to have been stolen, or
whoever takes a motor vehicle without the authority of the owner
and steals from it any of its parts or accessories, shall be punished
by imprisonment in the state prison for not more than fifteen years
or by imprisonment in a jail or house of correction for not more than
two and one-half years or by a fine of not more than fifteen
thousand dollars, or by both such fine and imprisonment.
MASS. GEN. LAWS ANN. ch. 266 § 28(a). Not all violations of this statute
constitute theft offenses. Accordingly, analysis under the modified categorical
approach is appropriate. See Larin-Ulloa, 462 F.3d at 464.
Despite the absence of any statutory language requiring an intent to
deprive the owner of a stolen vehicle, Massachusetts courts have read such a
requirement into the statute. See Commonwealth v. Darnell D., 840 N.E.2d 33,
36 (Mass. 2005). Moreover, a defendant must know or believe that a vehicle has
been stolen, despite the “having reason to know” language of the statute. See
Commonwealth v. Dellamano, 469 N.E.2d 1254, 1259 (Mass. 1984). Because our
court’s definition of a theft offense, including receipt of stolen property, includes,
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No. 08-60071
inter alia, the “the criminal intent to deprive the owner”, the Massachusetts
statute at issue, requiring a knowing intent to deprive, satisfies our definition
of a theft offense. See Burke, 509 F.3d at 697; MASS. GEN. LAWS ANN. ch. 266 §
28(a).
Having determined that Rudolfo’s receipt-of-a-stolen-vehicle offense is a
“theft offense”, and accepting the BIA’s factual determinations pursuant to 8
U.S.C. § 1252(a)(2)(C), we next consider whether Rudolfo’s offense resulted in a
sentence of at least one year. See 8 U.S.C. § 1101(a)(43)(G).
Rudolfo essentially contends his 11-month suspended sentence should not
be counted. A term of imprisonment that is suspended, however, counts as a
term of imprisonment for determining whether an offense constitutes an
aggravated felony. 8 U.S.C. § 1101(a)(48)(B); United States v. Landeros-Arreola,
260 F.3d 407, 410 (5th Cir. 2001).
Therefore, Rudolfo’s receipt-of-a-stolen-vehicle offense is a theft offense
for which a sentence of at least one year was imposed. Accordingly, he has not
shown that the BIA erred by concluding: he committed an aggravated felony;
and he is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
PETITION DENIED.
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