United States v. Lugo-Tovar

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6259
(D.C. No. 5:16-CR-00065-R-1)
JOSE ANGEL LUGO-TOVAR, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
Mr. Jose Angel Lugo-Tovar is a criminal defendant who appeals his
sentence. But his counsel has determined that all potential appellate
arguments would be frivolous and moved to withdraw under Anders v.
California, 386 U.S. 738 (1967). In Anders, the Supreme Court allowed
defense counsel to request permission to withdraw after determining that
any appeal would be frivolous. 386 U.S. at 744. We agree with defense
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
counsel that all potential grounds for appeal would be frivolous. We
therefore dismiss the appeal and grant defense counsel’s motion to
withdraw.
I. Background
Mr. Lugo-Tovar was convicted of illegal reentry. 8 U.S.C. § 1326(a).
The district court thus considered what sentence to impose with the input
of a probation officer. The probation officer prepared a presentence report,
which arrived at a guideline range of 33 to 41 months. No one objected to
the report, and the district court agreed with the probation officer’s
calculation of the guideline range. This guideline range was based in part
on an eight-level enhancement for a prior conviction of an aggravated
felony. The offense underlying that conviction was receipt of stolen
property under Oklahoma law (Okla. Stat. tit. 21 § 1713). Mr. Lugo-Tovar
challenges the sentence on procedural grounds.
II. Standard of Review
He did not object in district court to any procedural irregularities in
the determination of the sentence. We therefore review Mr. Lugo-Tovar’s
procedural challenges under the plain-error standard. See United States v.
Sharp, 749 F.3d 1267, 1291 (10th Cir. 2014).
III. The Arguments Involving Johnson and Mathis
In his pro se response to the Anders brief, Mr. Lugo-Tovar seeks to
preserve his right to challenge characterization of his past offense as an
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aggravated felony, relying on Johnson v. United States, ___ U.S. ___, 135 S.
Ct. 2551 (2015), and Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243
(2016). Mr. Lugo-Tovar does not articulate an argument for why he
believes these opinions could alter his sentence, and we cannot act as
advocates for any party. See Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005) (holding that “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record”).
Without any direction from Mr. Lugo-Tovar, we do not see how
Johnson or Mathis could affect the sentence. Johnson addressed a
vagueness challenge, and Mathis addressed the distinction between the
means and elements for a given crime. Johnson v. United States, ___ U.S.
___, 135 S. Ct. 2551, 2563 (2015); Mathis v. United States, ___ U.S. ___,
136 S. Ct. 2243, 2247-48 (2016). These issues do not bear any obvious
relevance to the sentencing of Mr. Lugo-Tovar.
He may be referring to the eight-level enhancement for a prior
conviction of an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C) (2015).
The 2015 guideline commentary defines the term “aggravated felony based
on 8 U.S.C. § 1101(a)(43).” See id. comment 3. There the term “aggravated
felony” is defined to include a theft offense such as the receipt of stolen
property. 8 U.S.C. § 1101(a)(43). In light of this definition, we consider
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whether the district court plainly erred by treating Mr. Lugo-Tovar’s crime
as a theft offense.
We must determine whether the elements of the generic offense
match the state crime underlying Mr. Lugo-Tovar’s past conviction. See
United States v. Maldonado-Palma, 839 F.3d 1244, 1246-47 (10th Cir.
2016). The past conviction involved receipt of stolen property, and the
2015 guidelines specify an eight-level enhancement for a past felony
conviction of a “theft offense (including receipt of stolen property).” See
p. 3, above. This term is defined broadly and is not limited to crimes
involving theft. United States v. Vasquez-Flores, 265 F.3d 1122, 1124
(10th Cir. 2001). If the elements of the generic theft offense match the
elements of receipt of stolen property, an Oklahoma conviction for receipt
of stolen property would constitute an aggravated felony and trigger the
eight-level enhancement.
Under Oklahoma law, the elements of receipt of stolen property were
that
 the property had been stolen and
 the defendant bought or received the property, knowing that it
has been stolen.
Gentry v. State, 562 P.2d 1170, 1174 (Okla. Crim. App. 1977). The
elements of the generic counterpart—“a theft offense (including receipt of
stolen property)”—are
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 the taking or control of property without the owner’s consent
and
 the criminal intent to deprive the owner of the rights and
benefits of ownership.
United States v. Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012).
We cannot see how any conduct satisfying the state offense’s elements
would fall outside the generic offense. Because the state offense matches
the generic form of the offense, an eight-level enhancement applies. See id.
This enhancement would not implicate a question of vagueness (the
subject of Johnson) or suggest the need to differentiate between a crime’s
means and elements (the subject of Mathis). See United States v. Snyder,
871 F.3d 1122, 1130 (10th Cir. 2017) (distinguishing between Johnson
claims and claims involving classification of a crime as an enumerated
offense); United States v. Pam, 867 F.3d 1191, 1203 (10th Cir. 2017)
(stating that relief under Johnson is available only if the unconstitutional
residual clause contributed to the sentence enhancement, not if the
enhancement resulted from the enumerated-offense clause). Thus, the
district court did not plainly err by failing to consider Johnson or Mathis.
IV. Request for Abeyance
Mr. Lugo-Tovar also asks us to abate his appeal pending the Supreme
Court’s decision in Sessions v. Dimaya, cert. granted sub nom. Lynch v.
Dimaya, ___ U.S. ___, 137 S. Ct. 31, 2016 WL 3232911 (Sept. 29, 2016).
We decline this request because the eventual opinion in Dimaya will
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probably not affect Mr. Lugo-Tovar. In Dimaya, the Supreme Court
granted certiorari on the constitutional validity of the residual clause in
8 U.S.C. § 16(b). Section 16(b) was not applied to Mr. Lugo-Tovar. Thus,
Dimaya will likely not affect Mr. Lugo-Tovar’s sentence.
V. Disposition
We have considered defense counsel’s Anders brief, Mr. Lugo-
Tovar’s pro se brief, and the record. Having done so, we conclude that all
potential appeal points would be frivolous. Accordingly, we dismiss this
appeal, deny Mr. Lugo-Tovar’s request to abate the appeal, and grant
defense counsel’s request to withdraw.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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