The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is a theft-related aggravated felony. The panel concluded that section 164.395 theoretically could cover a consensual taking due to its incorporation of theft by deception, explaining that the statute does not require that force be used or threatened against the owner of the property. The panel observed that, for example, the statute could theoretically apply to a situation where a person obtained property from its owner, by deception, and then used force against a third party. However, the panel concluded that there is no realistic probability that Oregon would prosecute such conduct under the statute.

Dissenting, Judge Berzon disagreed with the majority’s conclusion that Lopez-Aguilar was required to establish a realistic probability that the statute would be applied in a nongeneric manner. Judge Berzon wrote that, under the circuit’s case law, Lopez-Aguilar was not required to establish such a realistic probability because section 164.395’s text is on its face broader than a generic theft offense under the Immigration and Nationality Act.

This decision has both positive and negative take aways. The positive take away is the idea that robbery through deception might not fall within the definition of a theft offense - an argument that has not yet prevailed with respect to other robbery offenses in the Ninth Circuit (such as California’s robbery statute).

“Because the statute does not require that force be used or threatened against the owner of the property, the text of the statute could theoretically cover situations involving consensual takings. For example, under subsection (a), a defendant could be convicted if he entered a residential building, obtained property from a resident through deception, and used force against a security guard on his way out of the building in order to retain the property. Under subsection (b), a defendant could be convicted if she convinced an owner, by deception, to give her property but used force against a third party to compel that third party to deliver the consensually obtained property to her. In either scenario, the property would have been taken by consent of the owner, and the force used would not negate the owner’s consent because the force was used against a third party without the owner’s knowledge.

However, these two scenarios represent merely theoretical – not realistic – possibilities. Indeed, under subsection (a), the threat or force must be used ‘immediately after the taking.’ Therefore, it is unlikely that a defendant would be convicted for using or threatening force against a third party unless the force occurred in the presence of the owner, which would negate consent.”

The negative take away is the application of the realistic probability test. Judge Berzon’s dissent is spot on - the Ninth Circuit has consistently held that the plain text of the statute is enough to establish a realistic probability. The majority’s analysis tries to get around the text of the statute by using other parts of the statute as limits on the statute’s text, but really only seems to be able to negate about of the relevant overbroad text.

The full text of Lopez Aguilar v. Barr can be found here: