Opinion
No. 09-71068 Agency No. A072-543-100
02-20-2014
DIEGO SANCHEZ LUCAS, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2014
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Pasadena, California
Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District Judge.
The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.
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Diego Sanchez Lucas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of his removability under 8 U.S.C. § 1227(a)(2)(A)(iii). Sanchez had previously been convicted of carjacking in California. The sole question on appeal is whether the BIA erred in determining that Sanchez had committed an aggravated felony.
Sanchez argues that carjacking, as defined by California Penal Code § 215(a), is broader than the generic definition of a theft offense because one can be convicted of carjacking a person who was merely in possession of the car, whereas generic theft requires the taking be committed against the owner. He cites no authority recognizing a meaningful distinction for this purpose. This court has used "ownership" and "possession" interchangeably when defining theft offenses. See, e.g., United States v. Sellers, 670 F.2d 853, 854 (9th Cir. 1982) (defining common law larceny as "a taking of property from the possession of another without his consent . . ." (emphasis added)). Even assuming Sanchez were correct that record ownership is required for qualification as a theft offense, it is well settled that California Penal Code § 215(a) is categorically a "crime of violence" and therefore qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir. 2010).
Sanchez also argues he was not given a sentence of at least one year as required by 8 U.S.C. § 1101(a)(43)(F) and (G). Sanchez was sentenced to a term of 365 days, but he disputes that he was sentenced for the necessary one-year term because his time to serve was reduced by 58 days for good behavior.
The court has repeatedly stated, however, that the relevant duration is "the actual sentence imposed by the judge." United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir. 2001) (quoting Alberto-Gonzalez v. INS, 215 F.3d 906, 909 (9th Cir. 2000)). We have made it clear that "the actual sentence imposed by the judge . . . excludes good-time credits and similar nonjudicial (and thus difficult-to-ascertain) sentence adjustments." United States v. Moreno-Cisneros, 319 F.3d 456, 459 n.1 (9th Cir. 2003) (internal quotation marks omitted). This is consistent with 8 U.S.C. § 1101(a)(48)(B), defining "term of imprisonment" as "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part."
The petition is DENIED.