United States District Court, D. Arizona
A. Soto United States District Judge
before the Court is a Report and Recommendation from United
States Magistrate Judge Jacqueline Rateau (Doc. 49) and
Objections from the Government (Doc. 52) and the Defendant
(Doc. 53). That Report recommends denying the Motion to
Dismiss Indictment (Doc. 33) filed by Defendant. The parties
do not object to the majority of the Report, and this Court
adopts those unobjected-to portions. 28 U.S.C. § 636.
The Government objects to the Report's conclusion that
the prior crime of conviction is not a crime of violence,
while Defendant objects to the Report's conclusion that
the prior crime of conviction is an aggravated felony offense
because it falls under the generic definition of theft. The
Court reviews those portions of the Report de novo.
The Court finds that the Report correctly concluded the crime
was not a crime of violence, but that the Texas theft statute
criminalizes behavior outside the scope of the generic theft
offense. Therefore, Defendant's Motion to Dismiss
Indictment is GRANTED.
Crime of violence
Government argues that Defendant committed a crime of
violence because the Information under which Defendant was
charged indicates that he “intentionally, knowingly,
and recklessly cause[d] bodily injury to [victim] by striking
[victim] with a brick.” However, as the Report correctly
pointed out, a person can recklessly strike another -
i.e., by throwing a brick through a window with the
intent to break the window without striking a person, but
with reckless disregard of whether a person was inside.
Because the Information does not specify the mens rea of the
crime and includes reckless striking, the underlying crime is
not a crime of violence. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006).
Report concluded that the underlying conviction was an
aggravated felony constituting a proper basis of removal
because it qualified as a generic theft offense pursuant to 8
U.S.C. § 1101(a)(43)(G). To determine whether Defendant
was convicted of a generic crime we employ the categorical
approach. That is,
we compare the elements of the statute forming the basis of
the defendant's conviction with the elements of the
‘generic' crime. The prior conviction qualifies as
[the generic offense] only if the statute's elements are
the same as, or narrower than, those of the generic offense.
A state offense qualifies as a generic offense-and therefore,
in this case, as an aggravated felony-only if the full range
of conduct covered by [the state statute] falls within the
meaning of the generic offense.
United States v. Alvarado-Pineda, 774 F.3d 1198,
1202 (9th Cir. 2014). In the Ninth Circuit, the generic theft
offense has four elements: (1) the taking of (2) property (3)
without consent (4) with the intent to deprive the owner of
rights and benefits of ownership. Id. The Texas
theft statute under which Defendant was convicted states in
relevant part that
(a) A person commits an offense if he unlawfully appropriates
property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates the
property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was
explicitly represented by any law enforcement agent to the
actor as being stolen and the actor appropriates the property
believing it was stolen by another.
Tex. Penal Code Ann. § 31.03. Therefore, if any
subsection criminalizes behavior outside the scope of the
generic federal theft offense, Defedant's conviction does
not qualify as an aggravated felony. As an initial matter,
subsection (b)(2) seems to fit squarely in the federal