Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Solorzano-Cruz

United States District Court, D. Arizona

November 18, 2016

United States of America, Plaintiff,
v.
Mauricio E. Solorzano-Cruz, Defendant.

          ORDER

          James A. Soto United States District Judge

         Pending 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.

         1. Crime of violence

         The 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.”[1] 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).

         2. Aggravated Felony

         The 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).[2] 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. ยง 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.