United State v. Rivera

Defendant’s judicially-noticeable documents clearly and unequivocally established that his petty theft conviction “was based upon his plea of guilty to conduct that constitutes a generic theft offense.” As the term of imprisonment was at least one year for the theft offense conviction, the defendant’s “offense level was correctly increased by eight levels, under U.S.S.G. § 2L1.2(b)(1)(C).”

Mario Antonio Rivera, an alien, has been removed from the United States on ten previous occasions, and was again arrested for “unlawfully attempting to reenter the United States after having previously been removed,” a violation he pled guilty to under 8 U.S.C. § 1326. He was sentenced to a 37-month term stipulated by the Sentencing Guidelines. In calculating the prescribed range for the sentencing, “the district court increased the offense level by eight levels because Rivera ‘previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.’” U.S.S.G. § 2L1.2(b)(1)(C). The district court decided that Rivera’s trigger of the eight-level increase could come from any one of his three prior felony petty theft convictions under Cal. Penal Code §§ 484(a) and 666. Rivera appealed, arguing his petty theft convictions under Cal. Penal Code § 484(a) cannot qualify as an aggravated felony. The Supreme Court in United States v. Rodriquez, 464 F.3d 1072 (9th Cir. 2006), rev’d 533 U.S. 377 (2008), held “an increased, recidivist ‘sentence is a stiffened penalty for the latest crimes, which is considered to be an aggravated offense because [it is] a repetitive one.’” Using this reasoning, Ninth Circuit found that since “Rivera was actually sentenced to terms of imprisonment of at least one year for each of his felony petty theft convictions, they clearly satisfy the threshold sentence requirement for an aggravated felony.” In this case the petty theft convictions constituted a predicate theft offense as charging instruments showed Rivera pled guilty to a generic theft offense, thus the increase of his offense level by eight levels was correct. AFFIRMED.