CA4 on Categorical Approach, Theft, Embezzlement: Mena v. Lynch

Mena v. Lynch, Apr. 27, 2016- "Common sense suggests that knowingly receiving either stolen or embezzled property – i.e., the offense set forth in the second paragraph of § 659 - is a form of theft. See, e.g., United States v. Johnson, 612 F.2d 843, 846 (4th Cir. 1979) (noting that the purpose of § 659 “is to protect goods moving in interstate commerce from theft”). However, we are not writing on a clean slate, and we may not simply rest our decision on some concept of common sense. Instead, we are obliged to apply the categorical approach, and in doing so we are guided by circuit precedent. Applying the categorical approach, we believe that Soliman, combined with a straightforward reading of §§ 659 and 1101(a)(43)(G), dictates the result in Mena’s favor. ... In short, based on our application of the categorical approach, we hold that a conviction under the second paragraph of § 659 is not a “theft offense (including receipt of stolen property)” under § 1101(a)(43)(G). The BIA therefore erred in finding Mena to be an aggravated felon who is ineligible for cancellation of removal under § 1229b(a)(3). Accordingly, we grant the petition for review and remand for further proceedings consistent with this opinion."

[Hats off to appointed counsel, Dave Roberts!]