Immigration law provides for removal from the United States of an alien convicted of "a theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G) (emphasis added; footnote omitted); § 1227(a)(2)(A). The question here is whether the term "theft offense" in this federal statute includes the crime of "aiding and abetting" a theft offense. We hold that it does. And we vacate a Ninth Circuit determination to the contrary.
The Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., (2000 ed. and Supp.IV), lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, § 1227(a). In determining whether a conviction (say, a conviction for violating a state criminal law that forbids the taking of property without permission) falls within the scope of a listed offense (e.g., "theft offense"), the lower courts uniformly have applied the approach this Court set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). E.g., Soliman v. Gonzales, 419 F.3d 276, 284 (C.A.4 2005); Abimbola v. Ashcroft, 378 F.3d 173, 176-177 (C.A.2 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886-888 (C.A.9 2003); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-1009 (C.A.7 2001).
Taylor concerned offenses listed in the federal Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000 ed. and Supp. IV). That Act mandates a lengthy prison sentence for offenders with previous convictions for, e.g., a "violent felony"; and the Act sets forth certain specific crimes, e.g., "burglary," included in this category. The Court, in Taylor, considered whether a conviction for violating a state statute criminalizing certain burglary-like behavior fell within the listed federal term "burglary." 495 U.S., at 589, 598, 110 S.Ct. 2143.
The Court held that Congress meant its listed term "burglary" to refer to a specific crime, i.e., "`burglary'" in "the generic sense in which the term is now used in the criminal codes of most States." Id., at 598, 110 S.Ct. 2143 (emphasis added). The Court also held that a state conviction qualifies as a burglary conviction, "regardless of the "exact [state] definition or label" as long as it has the "basic elements" of "generic" burglary, namely, "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id., at 599, 110 S.Ct. 2143. The Court added that, when a sentencing court seeks to determine whether a particular prior conviction was for a generic burglary offense, it should normally look not to the facts of the particular prior case, but rather to the state statute defining the crime of conviction. Id., at 599-600, 110 S.Ct. 2143.
The Court further noted that a "few States' burglary statutes" "define burglary more broadly" to include both a (generically defined) listed crime and also one or more nonlisted crimes. Id., at 599, 110 S.Ct. 2143. For example, Massachusetts defines "burglary" as including not only breaking into "`a building'" but also breaking into a "vehicle" (which falls out-side the generic definition of "burglary," for a car is not a "`building or structure'"). See Shepard v. United States, 544 U.S. 13, 16, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Taylor, 495 U.S., at 599, 110 S.Ct. 2143 (discussing
The case before us concerns the application of the framework just set forth to Luis Duenas-Alvarez, the respondent here, a permanent resident alien of the United States. In 2002, Duenas-Alvarez was convicted of violating Cal. Veh.Code Ann. § 10851(a) (West 2000). That section states:
After Duenas-Alvarez was convicted, the Federal Government, claiming that the conviction was for a generic theft offense, began removal proceedings. A Federal Immigration Judge, agreeing with the Government that the California offense is "a theft offense ... for which the term of imprisonment [is] at least one year," found Duenas-Alvarez removable. 8 U.S.C. § 1101(a)(43)(G) (footnote omitted); § 1227(a)(2)(A). The Board of Immigration Appeals (BIA) affirmed. Duenas-Alvarez sought review of the BIA's decision in the Court of Appeals for the Ninth Circuit.
While respondent's petition for court review was pending, the Ninth Circuit, in Penuliar v. Ashcroft, 395 F.3d 1037 (2005), held that the relevant California Vehicle Code provision, § 10851(a), sweeps more broadly than generic theft. See id., at 1044-1045. In particular, the court said that generic theft has as an element the taking or control of others' property. But, the court added, the California statutory phrase "`[who] is a party or an accessory... or an accomplice'" would permit conviction "for aiding and abetting a theft." Id., at 1044 (emphasis deleted). And the court believed that one might "aid" or "abet" a theft without taking or controlling property. Id., at 1044-1045 (citing Martinez-Perez v. Ashcroft, 393 F.3d 1018 (C.A.9 2004), withdrawn and amended, 417 F.3d 1022 (2005)). Hence, in the Court of Appeals' view, the provision must cover some generically defined "theft" crimes and also some other crimes (aiding and abetting crimes) that, because they are not generically defined "theft" crimes, fall out-side the scope of the term "theft" in the immigration statute. 395 F.3d, at 1044-1045.
The Ninth Circuit subsequently heard Duenas-Alvarez's petition for review and summarily remanded the case to the agency
The Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the "taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Penuliar v. Gonzales, 435 F.3d 961, 969 (2006) (internal quotation marks omitted). See Abimbola, 378 F.3d, at 176 (analyzing the BIA's definition and citing cases from three other Circuits, including the Ninth Circuit, approving that definition). The question before us is whether one who aids or abets a theft falls, like a principal, within the scope of this generic definition. We conclude that he does.
The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. See Standefer v. United States, 447 U.S. 10, 15, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories. Id., at 16-19, 100 S.Ct. 1999; Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 S.Ct. 919 (1949).
Indeed, every jurisdiction — all States and the Federal Government — has "expressly abrogated the distinction" among principals and aiders and abettors who fall into the second and third categories. 2 W. LaFave, Substantive Criminal Law § 13.1(e), p. 333 (2d ed.2003) (LaFave). The Solicitor General has presented us with a comprehensive account of the law of all States and federal jurisdictions as well. And we have verified that these jurisdictions treat similarly principals and aiders and abettors who fall into the second or third common-law category. See Appendix A, infra. Since criminal law now uniformly treats those who fall into the first three categories alike, "the generic sense in which" the term "theft" "is now used in the criminal codes of most States," Taylor, 495 U.S., at 598, 110 S.Ct. 2143, covers such "aiders and abettors" as well as principals. And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term "theft" in the federal statute.
Duenas-Alvarez does not defend the Ninth Circuit's position. He agrees with the Government that generically speaking the law treats aiders and abettors during and before the crime the same way it treats principals; and that the immigration statute must then treat them similarly as well. Instead, Duenas-Alvarez argues that the California Vehicle Code provision in other ways reaches beyond generic theft to cover certain nongeneric crimes.
Duenas-Alvarez points out that California defines "aiding and abetting" such that an aider and abettor is criminally responsible
Duenas-Alvarez attempts to make just such a showing. In particular, he says that California's doctrine, unlike that of most other States, makes a defendant criminally liable for conduct that the defendant did not intend, not even as a known or almost certain byproduct of the defendant's intentional acts. See 1 LaFave § 5.2(a), at 341 (person intends that which he knows "is practically certain to follow from his conduct"). At oral argument, Duenas-Alvarez's counsel suggested that California's doctrine, for example, might hold an individual who wrongly bought liquor for an underage drinker criminally responsible for that young drinker's later (unforeseen) reckless driving. See Tr. of Oral Arg. 44. And Duenas-Alvarez refers to several California cases in order to prove his point. See Brief for Respondent 19.
We have reviewed those cases, however, and we cannot agree that they show that California's law is somehow special. In the first case, People v. Nguyen, 21 Cal.App.4th 518, 26 Cal.Rptr.2d 323 (1993), the Third Appellate District in California upheld the jury conviction of individuals who had aided several robberies at houses of prostitution, for aiding and abetting a sexual assault used by one of the individuals to convince a proprietor, by frightening her, to give up property. Id., at 528, 533-534, 26 Cal.Rptr.2d, at 329, 333. The court, in upholding the verdict, wrote that "knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime." Id., at 530, 26 Cal.Rptr.2d, at 330 (emphasis added). The court added that "[w]hile the defendants participated in the criminal endeavor the foreseeability of sexual assault went from possible or likely to certain, yet defendants continued to lend their aid and assistance to the endeavor." Id., at 534, 26 Cal.Rptr.2d, at 333 (emphasis added). The court said that the jury could find that the defendants'
And the court concluded:
People v. Simpson, 66 Cal.App.2d 319, 152 P.2d 339 (1944), affirmed a kidnaping and robbery conviction on an aiding and abetting theory. Id., at 322, 152 P.2d 339. Although the defendant argued to the appeals court that she and her compatriots had not planned to kidnap the robbery victim, the record showed that she had brought the gun used to intimidate the victim while he was tied up and placed in a car, in which she and her corobbers rode with the victim to another location while they robbed him. Id., at 322-323, 152 P.2d 339. As in Nguyen, the court, noting that kidnaping was the means by which the robbery was committed, found that the defendant had the requisite "motive," or intent to commit the kidnaping. 66 Cal. App.2d, at 326, 152 P.2d 339.
People v. Montes, 74 Cal.App.4th 1050, 88 Cal.Rptr.2d 482 (1999), affirmed an attempted murder conviction where a confederate of the defendant shot the victim after the defendant committed armed assault, simple assault, and breach of the peace. Id., at 1055, 88 Cal.Rptr.2d, at 485. The court found that the conduct for which the appellant was charged with assault and breach of the peace was a "confrontation... punctuated by threats and weaponry" "in the context of an ongoing rivalry between ... two gangs [that] acted violently toward each other." Ibid. The court reasoned that the escalating violence, resulting in someone being shot, was a foreseeable consequence of the defendant's intended act of participating in the gang confrontation. Ibid.
Although the court in Montes applied a more expansive concept of "motive" or "intent" than did the courts in Nguyen and Simpson, we cannot say that those concepts as used in any of these cases extend significantly beyond the concept as set forth in the cases of other States. See Appendix C, infra.
Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Because Duenas-Alvarez makes no such showing here, we cannot find that California's statute, through the California courts' application of a "natural and probable consequences" doctrine, creates a subspecies of the Vehicle Code section crime that falls outside the generic definition of "theft."
Duenas-Alvarez makes two additional claims. First, he argues that § 10851 holds liable accessories after the fact; and to prove that an individual was an accessory after the fact does not require the Government to show that the individual committed a theft. Second, Duenas-Alvarez argues that § 10851 applies, not only to auto theft, but also to joyriding, which he argues involves so limited a deprivation of the use of a car that it falls outside the generic "theft" definition. See Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432 (1925) (Cardozo, J.) (citing cases for proposition that a very temporary use is not theft).
For these reasons we vacate the Ninth Circuit's judgment and remand the case for further proceedings consistent with this opinion.
It is so ordered.
APPENDIXES TO OPINION OF THE COURT
Ala.Code §§ 13A-2-20, 13A-2-23 (2006); Alaska Stat. §§ 11.16.100, 11.16.110 (2004); Ariz.Rev.Stat. Ann. §§ 13-301, 13-302, 13-303(A) (West 2001); Ark.Code Ann. §§ 5-2-402, 5-2-403(a) (2006); Colo.Rev.Stat. Ann. §§ 18-1-601, 18-1-603 (2006); Conn. Gen.Stat. § 53a-8(a) (2005); Del.Code Ann., Tit. 11, § 271 (1995); D.C.Code § 22-1805 (2001); Fla. Stat. § 777.011 (2006); Ga.Code Ann. § 16-2-20 (2003); Haw.Rev.Stat. §§ 702-221, 702-222 (1993); Idaho Code § 19-1430 (Lexis 2004); Ill. Comp. Stat., ch. 720, §§ 5/5-1, 5/5-2 (West 2004); Ind.Code § 35-41-2-4 (West 2004); Iowa Code § 703.1 (2005); Kan. Stat. Ann. § 21-3205(1) (1995); Ky.Rev.Stat. Ann. § 502.020(1) (West 2006); La. Stat. Ann. § 14:24 (West 1997); Me.Rev.Stat. Ann., Tit. 17-A, § 57(1) (2006); Md.Crim. Proc. Code Ann. § 4-204(b) (Lexis Supp.2006); Mass. Gen. Laws, ch. 274, § 2 (West 2004); Mich. Comp. Laws Ann. § 767.39 (West 2000); Minn.Stat. § 609.05, subd. 1 (2004); Miss.Code Ann. § 97-1-3 (2006); Mo.Rev. Stat. §§ 562.036, 562.041(1) (2000); Mont. Code Ann. §§ 45-2-301, 45-2-302 (2005); Neb.Rev.Stat. § 28-206 (1995); Nev.Rev. Stat. § 195.020 (2003); N.H.Rev.Stat. Ann. § 626:8 (Supp.2006); N.J. Stat. Ann. § 2C:2-6 (West 2005); N.M. Stat. Ann. § 30-1-13 (2004); N.Y. Penal Law Ann. § 20.00 (West 2004); N.C. Gen.Stat. Ann. § 14-5.2 (Lexis 2005); N.D. Cent.Code Ann. § 12.1-03-01(1) (Lexis 1997); Ohio Rev.Code Ann. §§ 2923.03(A), (F) (Lexis 2006); Okla. Stat., Tit. 21, § 172 (West 2001); Ore.Rev.Stat. §§ 161.150, 161.155 (2003); 18 Pa. Cons.Stat. § 306 (2002); R.I. Gen. Laws § 11-1-3 (2002); S.C.Code Ann. § 16-1-40 (2003); S.D. Codified Laws §§ 22-3-3, 22-3-3.1 (1998); Tenn. Code Ann. §§ 39-11-401(a), 39-11-402 (2006); Tex. Penal Code Ann. §§ 7.01, 7.02(a) (West 2003); Utah Code Ann. § 76-2-202 (Lexis 2003); Vt. Stat. Ann., Tit. 13, §§ 3-4 (1998); Va.Code Ann. § 18.2-18 (Lexis 2004); Wash. Rev.Code § 9A.08.020 (2006); W. Va.Code Ann. § 61-11-6 (Lexis 2005); Wis. Stat. § 939.05 (2003-2004); Wyo. Stat. Ann. § 6-1-201 (2005).
Alaska Stat. § 11.16.110; Riley v. State, 60 P.3d 204, 214, 219-221 (Alaska App.2002);
See, e.g., 2 LaFave § 13.3(b), at 361-362, nn. 27-29 (2d ed.2003 and Supp.2007) (identifying cases applying the doctrine in California, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Tennessee, and Wisconsin, as well as in other States where the continued viability of the doctrine is unclear); State v. Medeiros, 599 A.2d 723, 726 (R.I.1991) (aider and abettor intends natural and probable consequences of his acts). See also Beasley v. State, 360 So.2d 1275, 1278 (Fla.App.1978); Ga.Code Ann. § 16-2-20; Jackson v. State, 278 Ga. 235, 235-237, 599 S.E.2d 129, 131-132 (2004); Jordan v. State, 272 Ga. 395, 395-397, 530 S.E.2d 192, 193-194 (2000); Crawford v. State, 210 Ga.App. 36, 36-37, 435 S.E.2d 64, 65 (1993); State v. Ehrmantrout, 100 Idaho 202, 595 P.2d 1097 (1979) (per curiam); State v. Meyers, 95-750, pp. 5-7 (La.App.11/26/96), 683 So.2d 1378, 1382; State v. Holmes, 388 So.2d 722, 725-727 (La.1980); People v. Robinson, 475 Mich. 1, 8-9, 715 N.W.2d 44, 49 (2006); Welch v. State, 566 So.2d 680, 684-685 (Miss.1990); State v. Roberts, 709 S.W.2d 857, 863, and n. 6 (Mo.1986); State v. Ferguson, 20 S.W.3d 485, 497 (Mo.2000); State v. Logan, 645 S.W.2d 60, 64-65 (Mo. App.1982); State v. Leonor, 263 Neb. 86, 95-97, 638 N.W.2d 798, 807 (2002); N.J. Stat. Ann. § 2C:2-6; State v. Torres, 183 N.J. 554, 566-567, 874 A.2d 1084, 1092 (2005); State v. Weeks, 107 N.J. 396, 401-406, 526 A.2d 1077, 1080-1082 (1987); Ohio Rev.Code Ann. § 2923.03; State v. Johnson, 93 Ohio St.3d 240, 242-246, 754 N.E.2d 796, 799-801 (2001); State v. Herring, 94 Ohio St.3d 246, 248-251, 762 N.E.2d 940, 947-948 (2002); Ore.Rev.Stat. § 161.155; State v. Pine, 336 Or. 194, 203-205, 206-208, and n. 6, 82 P.3d 130, 135, 137, and n. 6 (2003); State v. Anlauf, 164 Or.App. 672, 674-677, and n. 1, 995 P.2d 547, 548-549, and n. 1 (2000); Hudgins v. Moore, 337 S.C. 333, 339, n. 5, 524 S.E.2d 105, 108, n. 5 (1999); S.D. Codified Laws § 22-3-3; State v. Tofani, 2006 SD 63, ¶¶ 31-48, 719 N.W.2d 391, 400-405; State v. Richmond, 90 S.W.3d 648, 654-656 (Tenn.2002); Tex. Penal Code Ann. § 7.02; Ex parte Thompson, 179 S.W.3d 549, 552 (Tex.Crim.App.2005); Gordon v. State, 640 S.W.2d 743, 758 (Tex.App.1982); Utah Code Ann. § 76-2-202; State v. Alvarez, 872 P.2d 450, 461 (Utah 1994); State v. Crick, 675 P.2d 527, 534 (Utah 1983); State
Justice STEVENS, concurring in part and dissenting in part.
While I join Parts I, II, and III-B of the Court's opinion, as well as its judgment, I do not join Part III-A. I am not prepared to disagree with anything said in Part III-A, but I believe we would be well advised to withhold comment on issues of California law until after they have been addressed by the Court of Appeals in the first instance. Limiting our decision to the question we granted certiorari to answer, though not a rigid rule, is generally prudent. Doing so seems particularly wise whenever reaching beyond the question presented requires analysis of disputed issues of state law. Because circuit judges are generally more familiar with the law of the States within their respective jurisdictions than we are, we have often followed the sound practice of deferring to the courts of appeals on such matters even when we did not necessarily share their views. See, e.g., Haring v. Prosise, 462 U.S. 306, 314, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Bishop v. Wood, 426 U.S. 341, 345-346, and n. 10, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (collecting cases); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 16, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). I would adhere to that settled practice in this case.