United States v. Cruz-Mandujano
Docket: No. 01-10067; D.C. No. CR-00-00809-JMR
Court: Court of Appeals for the Ninth Circuit; November 21, 2002; Federal Appellate Court
Sacramento Cruz-Mandujano appeals a thirty-seven month sentence for illegally reentering the United States under 8 U.S.C. § 1326. The court has jurisdiction under 28 U.S.C. § 1291 and has decided to vacate the sentence and remand for resentencing. Cruz argues that his prior conviction under California Vehicle Code § 10851, which pertains to vehicle theft and unlawful driving, should not qualify as an aggravated felony for sentence enhancement under U.S.S.G. § 2L1.2(b)(1) (1998). The court agrees with Cruz, stating that the definition of a "theft offense" requires a direct taking or control of property. Previous rulings, specifically United States v. Corona-Sanchez, established that California Penal Code § 484(a) is broader than the generic definition of theft, as it allows for convictions based on aiding and abetting. Similarly, § 10851 also permits convictions as a party or accomplice, making it categorically broader than a theft offense. Additionally, the court notes that § 10851 is not a violent crime, referencing Ye v. INS, which determined that vehicle burglary lacks the violent physical force typically associated with a crime of violence. Consequently, Cruz's prior conviction does not meet the criteria for an aggravated felony. The record lacks sufficient information to assess whether the conviction could be considered under the modified categorical approach established in Corona-Sanchez. The district court was not aware of the en banc decision at the time of sentencing and did not explore whether any judicially noticeable documents could confirm Cruz's conviction in relation to the generic offense. As a result, the court vacates the sentence and remands for resentencing, issuing a mandate immediately. This decision is not suitable for publication and cannot be cited in future cases except as permitted by Ninth Circuit Rule 36-3.