United States v. Ricardo Mejia-Barba ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3216
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Ricardo Mejía-Barba, *
*
Appellant. *
___________
Submitted: February 14, 2003
Filed: May 5, 2003
___________
Before LOKEN,1 RILEY, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Ricardo Mejía-Barba appeals his sentence for illegally re-entering the United
States after being deported.2 Specifically, Mejía-Barba argues that the district court3
1
The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
2
Mejía-Barba was convicted of violating 8 U.S.C. §§ 1326(a) and (b)(2).
3
The Honorable Laurie Smith Camp, United States District Court Judge for the
District of Nebraska.
erred in finding that his prior conviction in Iowa for "identity theft" qualified as an
aggravated felony, which justified an eight-level (rather than a four-level) increase
to his sentence. We affirm.
I.
Facts
On April 5, 2002, the Immigration and Naturalization Service (INS) placed
Mejía-Barba in custody when he attempted to renew his Employment Authorization
Card at an Automated Service Center. A record check indicated that Mejía-Barba had
been deported from the United States in 1999 because of a conviction for identity
theft in Iowa.
In the Iowa case, Mejía-Barba was arrested after falsely representing to an Iowa
Department of Transportation investigator that he was a man known as Marcos
Rivera. Mejía-Barba showed the investigator Rivera's birth certificate and a newly-
issued Social Security card in Rivera's name. Mejía-Barba had previously used
Rivera's identification to obtain employment in Sioux City, Iowa. The State of Iowa
charged Mejía-Barba with identity theft in violation of Iowa Code § 715A.8. Mejía-
Barba was convicted and sentenced to a suspended term of imprisonment, and the
INS deported Mejía-Barba to Mexico. However, Mejía-Barba illegally returned to the
United States while on probation and was discovered when he attempted to renew his
employment card. On April 17, 2002, the United States filed a one-count indictment
charging Mejía-Barba with unlawfully being in the United States after being deported
following his conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a)
and (b)(2). Mejía-Barba pleaded guilty to the charge on June 11, 2002.
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The Presentence Investigation Report (PSR) provided for a total offense level
of thirteen and a criminal history category of II.4 The PSR treated Mejía-Barba's Iowa
identity theft conviction as an aggravated felony. Under United States Sentencing
Guideline § 2L1.2(b)(1)(C), an aggravated felony increases the offense level by eight.
On July 31, 2002, Mejía-Barba objected to the increase. He argued that U.S.S.G. §
2L1.2(b)(1)(D) should apply and only required a four-level increase. After the trial
court adopted the PSR, Mejía-Barba moved for downward departure pursuant to
U.S.S.G. §§ 5K2.16 and 5K2.0 and requested a hearing.
At the hearing on August 26, 2002, Mejía-Barba contended that his conviction
for identity theft was not an aggravated felony. The district court denied his motion
and held that Iowa's crime of identity theft fit within the parameters of the definition
of a "theft offense" defined in 8 U.S.C. § 1101 (a)(43)(G) (the statute to which the
Commentary to U.S.S.G. § 2L1.2(b)(1)(C) refers the sentencing court). However, the
district court did grant Mejía-Barba's motion for downward departure by one level for
voluntary disclosure, placing his total offense level at twelve. The district court
sentenced Mejía-Barba at the low end of the guideline range to a term of twelve
months’ imprisonment. Mejía-Barba now requests that his sentence be vacated and
the case remanded for resentencing with instructions that he receive only a four-level
increase to his base offense level.
II.
Standard of Review
This court reviews de novo the district court's interpretation of the Sentencing
Guidelines. United States v. Martinez, 258 F.3d 760 (8th Cir. 2001). We review the
4
Mejía-Barba began at a base offense level of eight, but the probation office
added an additional eight levels after it took into account his prior aggravated felony
for identity theft. The probation office then reduced Mejía-Barba's offense level by
three levels for acceptance of responsibility, bringing his total offense level to
thirteen. The sentencing range was fifteen to twenty-one months' imprisonment.
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district court's interpretation of a sentence-enhancement statute de novo. United
States v. Stuckey, 220 F.3d 976, 984 (8th Cir. 2000); United States v. Williams, 136
F.3d 547, 550 (8th Cir.1998).
III.
Analysis
This case presents the issue of whether the Iowa crime of identity theft qualifies
as an aggravated felony under 8 U.S.C. § 1101(a)(43) for purposes of an eight-level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Sentencing Guidelines §
2L1.2 sets a base offense level of eight for a conviction for unlawfully entering or
remaining in the United States. However, under U.S.S.G. § 2L1.1(b)(1)(C), if the
defendant has been previously convicted of an aggravated felony, then the sentence
can be enhanced by eight levels. In comparison, only a four-level enhancement may
apply for a previous conviction of any other felony under U.S.S.G. § 2L1.1(b)(1)(D).
To determine whether the prior felony constitutes an aggravated felony, the
Application Notes to U.S.S.G. § 2L1.1(b)(1)(D) refers us to 8 U.S.C. § 1101(a)(43).
Most germane to our inquiry, § 1101(a)(43)(G) includes as a definition of aggravated
felony, "a theft offense (including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year." The district court determined
that Mejía-Barba's Iowa conviction for identity theft qualified as an aggravated felony
under this definition, thus making the crime subject to the eight-level enhancement
in U.S.S.G. § 2L1.2(b)(1)(C). Based upon our de novo review, the district court made
the correct determination.
Focusing upon Iowa's identity theft statute, we must determine whether it
defines a "theft" that falls within the definition of an aggravated felony in 8 U.S.C.
§ 1101(a)(43). We have never defined the term "theft offense" in § 1101(a)(43). The
parties note that the Seventh, Ninth, and Tenth Circuits have defined the term using
a "modern, generic and broad" definition that "theft" is "a taking of property or an
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exercise of control over property without consent with the criminal intent to deprive
the owner of the rights and benefits of ownership, even if such deprivation is less than
total or permanent." Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.
2001); see also United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.
2002); United States v. Martinez-Garcia, 268 F.3d 460, 465 (7th Cir. 2001); United
States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). Both parties argue
that we should adopt this definition and use the rationale of these circuits in applying
the definition to this case.
We, however, need not adopt this definition in this case because Iowa's identity
theft statute sufficiently describes the type of theft offense defined in §
1101(a)(43)(G). We hold that Iowa's statutory scheme describing theft offenses in
general, and identity theft specifically, reflects that identity theft is an aggravated
felony "theft" crime under the federal statute.5 First, Iowa's general definition of theft
5
Iowa's identity theft statute at § 715A.8 provides:
1. For purposes of this section, "identification information" means the
name, address, date of birth, telephone number, driver's license number,
nonoperator's identification number, social security number, place of
employment, employee identification number, parent's legal surname
prior to marriage, demand deposit account number, savings or checking
account number, or credit card number of a person.
2. A person commits the offense of identity theft if the person with the
intent to obtain a benefit fraudulently obtains identification information
of another person and uses or attempts to use that information to obtain
credit, property, or services without the authorization of that other
person.
3. If the value of the credit, property, or services exceeds one thousand
dollars, the person commits a class "D" felony. If the value of the credit,
property, or services does not exceed one thousand dollars, the person
commits an aggravated misdemeanor.
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under Iowa Statute § 714.1 makes it a crime not only to take the property of another,
but also to use that property without the owner's permission. For example, in §
714.1(2), theft involves misappropriation of property "by using . . . it in a manner
which is inconsistent with or a denial . . . of the owner's rights in such property . . .
or appropriates such property to the person's own use . . . ." Section 714.1(3) defines
theft as obtaining "the beneficial use of property of another, by deception." Finally,
§ 714.1(10) states that theft is "[a]ny act that is declared to be theft by any provision
of the Code."
Second, Iowa's identity theft statute includes many of these same
considerations, including provisions that criminalize the taking and use of another's
identification information to obtain a benefit. Considering these two statutes together,
it is apparent that the Iowa legislature intended that identity theft, by its name and by
its description, be a more specific type of theft crime. Applying these definitions to
Mejía-Barba's acts, his action of taking Rivera's identity potentially subjected Rivera
to numerous financial, legal, and reputation-damaging problems, much akin to Mejía-
Barba taking other types of property. Mejía-Barba then misappropriated that property
for his own beneficial use, earning income subject to taxes under Rivera's name and
representing through his deeds and actions that he was Rivera, all without Rivera's
permission. Mejía-Barba contends that his actions could have constituted a fraud, but
not a theft. However, under the Iowa statutory scheme, his actions, though fraudulent,
are also a theft. We affirm the district court's determination that Mejía-Barba's prior
conviction for identity theft qualifies as an aggravated felony under 8 U.S.C. §
1101(a)(43), thus supporting the eight-level increase to Mejía-Barba's sentence
pursuant to U.S.S.G. § 2L1.2(b)(1)(C).
4. A violation of this section is an unlawful practice under section
714.16.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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