Operate Chop Shop; Traffic in vehicles with altered VINs (vehicle identity numbers)

Aggravated Felony (AF)

Get 364 on each count to avoid AF. Also can be AF if loss to victim/s exceeds $10k.

Consider alternate plea such as PC 487, which can take 1 year or $10k loss, or 459, which might be able to take both.

See Advice.

Crime Involving Moral Turpitude (CIMT)


Other Removal Grounds

No other removal ground.

Advice and Comments

AF based on 1 year: A few AF categories might apply if 1 yr or more is imposed, such as receipt of stolen property, trafficking in vehicles where VIN has been altered, or even counterfeiting or forgery. If 1 yr can’t be avoided, try to plead to an offense such as 459, 487, or 594. If 1 yr was imposed on a prior, imm counsel may investigate arguments that 10801 is not an AF even with 1 yr.1Trafficking in vehicles with altered vehicle identification numbers (VIN) is an aggravated felony if a sentence of a year or more is imposed. So is theft, including receipt of stolen property. See 8 USC § 1101(a)(43)(R), (G), respectively. While arguably this offense is not an AF under the VIN category, defenders should assume conservatively that it will be held an AF as receipt of stolen property if a sentence of a year is imposed.

Section 10801 should be held overbroad compared to the definition of the VIN aggravated felony. Section 10801 includes intent to “alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity, including an identification number, of the vehicle or part, in order to misrepresent its identity or prevent its identification.” CALCRIM 1752 (emphasis added). The minimum conduct could include something other than altering the VIN. Further, the statute does not appear to be divisible, and if that is true, no conviction is an AF.

A “theft offense (including receipt of stolen property)” is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(F). Section 10801 is not categorically (necessarily) a theft offense, because it can be committed by fraud. Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009). The more difficult question is whether it is an aggravated felony as receipt of stolen property, which the BIA has held can be property obtained by theft or fraud. Immigration counsel may identify arguments against this, but criminal defense counsel should assume conservatively that 10801 is an AF as receipt of stolen property if a year or more is imposed.

AF based on $10,000 loss. If loss = the value of vehicles, this could amount to $10k loss to victim/s. Arguably 10801 is not a crime of fraud or deceit because it can involve theft2A crime of fraud or deceit is an aggravated felony if the loss to the victim/s exceeded $10,000. 8 USC § 1101(a)(43)(M)(ii). Section 10801 can involve a vehicle taken by either fraud or theft. Because the statute appears not to be divisible (because there is no requirement that a jury decide whether theft or fraud was the conduct), it should be judged according to the minimum conduct, which need not include fraud. Still, make every effort to avoid the $10k loss. See Pen C §§ 484 and 470 in chart. (See Categorical Approach Advisory for more information.)—but the act of altering the vehicle might be held to be deceit. By far the best practice is plea to theft with loss of $10k but not with 1 year, or burglary. See discussions at 487 and 470, and see § N.11 Burglary, Theft and Fraud.

2021-05-19T20:31:08+00:00Updated May 19th, 2021|