Alvarez-Reynaga v. Holder ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO ALVAREZ-REYNAGA, a.k.a. 
Armando Alvarez,
No. 08-70253
Petitioner,
v.  Agency No.
A036-733-439
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2009*
San Francisco, California
Filed February 19, 2010
Before: Barry G. Silverman, Richard R. Clifton, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2701
ALVAREZ-REYNAGA v. HOLDER 2703
COUNSEL
Bernadette W. Connolly, San Jose, California, for the peti-
tioner.
2704 ALVAREZ-REYNAGA v. HOLDER
Gregory G. Katsas, Assistant Attorney General, Christopher
C. Fuller, and Zoe J. Heller, United States Department of Jus-
tice, Washington, DC, for the respondent.
OPINION
CLIFTON, Circuit Judge:
An order of removal from the United States was entered
against Petitioner Armando Alvarez-Reynaga based on his
felony conviction for receipt of a stolen vehicle in violation
of section 496d(a) of the California Penal Code. His petition
for review presents the questions of whether a conviction
under that statute qualifies categorically as a conviction for an
aggravated felony, and whether it qualifies categorically as a
crime involving moral turpitude. We conclude that it qualifies
as the first, but not the second. We deny the petition for
review.
I. Background
Alvarez-Reynaga, a native and citizen of Mexico, was
admitted to the United States as a lawful permanent resident
in 1981. Alvarez-Reynaga was subsequently convicted of a
felony violation of California Penal Code section 496d(a),
purchase or receipt of a stolen vehicle. He received a sentence
of one year and four months.
When attempting to return to the United States from Mex-
ico in 2006, Alvarez-Reynaga was stopped at the border
because there was a warrant outstanding for his arrest, unre-
lated to his previous conviction. He was paroled into the
United States at that time but soon thereafter became the sub-
ject of removal proceedings, based upon his conviction. The
immigration judge (“IJ”) ordered that Alvarez-Reynaga be
removed to Mexico for having been convicted of an aggra-
ALVAREZ-REYNAGA v. HOLDER 2705
vated felony and also for having been convicted of a crime
involving moral turpitude, pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) and 8 U.S.C. § 1182(a)(2)(A)(i)(I),
respectively. The IJ based those conclusions on his determina-
tion that a conviction under California Penal Code section
496d(a) fit within the generic definition of a “theft offense.”
The IJ further held that Alvarez-Reynaga was ineligible for
relief in the form of cancellation of removal, under 8 U.S.C.
§ 1229b(a), due to his conviction for an aggravated felony.
Alvarez-Reynaga appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). The BIA affirmed and adopted
the IJ’s decision, agreeing that California Penal Code section
496d(a) constituted a categorical match with the generic defi-
nition of a “theft offense.”
Alvarez-Reynaga timely petitioned this court for review of
the BIA’s decision.
II. Discussion
A. Aggravated Felony
[1] An aggravated felony for these purposes is defined by
statute to include “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprison-
ment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). In
determining whether Alvarez-Reynaga’s conviction for
receipt of stolen property constitutes an aggravated felony, we
apply the categorical test set forth by the Supreme Court in
Taylor v. United States, 495 U.S. 575 (1990). See Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 886-88 (9th Cir. 2003).
Under this test, we make a categorical comparison of the ele-
ments of the state statute of conviction to the generic defini-
tion of a theft offense in order to determine whether the full
range of conduct proscribed by the statute of conviction is
broader than the generic definition. Taylor, 495 U.S. at
598-99.
2706 ALVAREZ-REYNAGA v. HOLDER
Alvarez-Reynaga was convicted of receiving a stolen vehi-
cle under California Penal Code section 496d(a), which pro-
vides in relevant part:
Every person who buys or receives any motor vehi-
cle . . . that has been stolen or that has been obtained
in any manner constituting theft or extortion, know-
ing the property to be stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, sell-
ing, or withholding any motor vehicle . . . from the
owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in the
state prison for 16 months or two or three years or
a fine of not more than ten thousand dollars
($10,000), or both, or by imprisonment in a county
jail not to exceed one year or a fine of not more than
one thousand dollars ($1,000), or both.
[2] Alvarez-Reynaga argues that a conviction under this
statute does not constitute an aggravated felony. In Verdugo-
Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. 2009), we con-
sidered that question in the context of a conviction for receipt
of stolen property under California Penal Code section 496(a).
We concluded that a conviction for that crime categorically
qualifies as an aggravated felony. See id. at 1061. Section
496(a) is essentially identical to section 496d(a), except that
it relates to receipt of stolen property in general, while section
496d(a) is narrower and pertains only to the receipt of stolen
vehicles, trailers, special construction equipment, or vessels.1
1
Section 496(a) of the California Penal Code provides in relevant part:
Every person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting theft
or extortion, knowing the property to be so stolen or obtained, or
who conceals, sells, withholds, or aids in concealing, selling, or
withholding any property from the owner, knowing the property
to be so stolen or obtained, shall be punished by imprisonment in
a state prison, or in a county jail for not more than one year.
ALVAREZ-REYNAGA v. HOLDER 2707
The argument principally made by Alvarez-Reynaga, that sec-
tion 496d(a) is not an aggravated felony because it may cover
someone who is involved only as an accessory after the fact,
was explicitly rejected in Verdugo-Gonzalez. See 581 F.3d at
1061-62. For the reasons stated in that decision, we conclude
that a conviction under section 496d(a) constitutes a convic-
tion for an aggravated felony.
B. Crime Involving Moral Turpitude
Alvarez-Reynaga also contends that receiving a stolen
vehicle is not categorically a crime involving moral turpitude
because it includes accessory after the fact liability. We agree
that the crime does not categorically involve moral turpitude,
but for a different reason.
To determine whether a conviction is for a crime involving
moral turpitude, we make the same categorical comparison
discussed above. Navarro-Lopez v. Gonzales, 503 F.3d 1063,
1067 (9th Cir. 2007) (en banc). A crime of moral turpitude is
one “involving conduct that is inherently base, vile, or
depraved, and contrary to the private and social duties man
owes to his fellow men or to society in general.” Id. at 1068.
Alvarez-Reynaga argues that the statute of conviction
involved here covers someone who was not actually involved
in a theft or in receipt of stolen property, but who only acted
as an accessory after the fact. He cites our decision in
Navarro-Lopez, in which we held that a conviction for being
an accessory after the fact under section 32 of the California
Penal Code did not constitute a crime involving moral turpi-
tude. 503 F.3d at 1074. But Alvarez-Reynaga was not con-
victed for being an accessory after the fact under that statute.
He was convicted for receipt of a stolen vehicle in violation
of California Penal Code section 496d(a). As we explained in
Verdugo-Gonzalez, California Penal Code section 496(a) does
not cover someone whose role was limited to that of an acces-
sory after the fact and who did not participate directly in the
2708 ALVAREZ-REYNAGA v. HOLDER
receipt of stolen property. See 581 F.3d at 1061-62. Exactly
the same reasoning applies here. Someone who was only an
accessory after the fact would not be subject to conviction
under California Penal Code section 496d(a).
[3] We nonetheless hold that a conviction under California
Penal Code section 496d(a) does not categorically constitute
a crime involving moral turpitude, following our recent deci-
sion in Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir.
2009). In Castillo-Cruz, we held that a conviction for receipt
of stolen property under California Penal Code section 496 is
“not categorically a crime of moral turpitude because it does
not require an intent to permanently deprive the owner of
property.” Id. at 1161. As we have said, section 496d(a) is
essentially identical to section 496(a), except that the former
section pertains only to the receipt of stolen vehicles, trailers,
special construction equipment, or vessels. Our holding in
Castillo-Cruz therefore compels our conclusion in this case.
Indeed, the Castillo-Cruz opinion’s joyriding example applies
a fortiori to section 496d. Joyriding is punishable under sec-
tion 496 but does not require an intent to permanently deprive
an owner of property, and so does not involve moral turpi-
tude. See Castillo-Cruz, 581 F.3d at 1161 (citing People v.
Jaramillo, 16 Cal. 3d 752, 758-59 (1976)).
[4] Even under the modified categorical approach,
Alvarez-Reynaga’s conviction is not a crime involving moral
turpitude. There is no evidence in the record establishing that
his offense involved an intent to deprive the owner of posses-
sion permanently, just as there was none in Castillo-Cruz. See
581 F.3d at 1161.
III. Conclusion
[5] We hold that a conviction for the receipt of a stolen
vehicle under section 496d(a) of the California Penal Code
categorically constitutes a conviction for an aggravated fel-
ony. We also hold that a conviction under the same statute
ALVAREZ-REYNAGA v. HOLDER 2709
does not categorically constitute a crime involving moral tur-
pitude. The former holding independently makes Alvarez-
Reynaga both removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
and ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a)(3).
PETITION DENIED.