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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2237
SAMIR FERNANDES BAPTISTA,
Petitioner,
v.
PAMELA JO BONDI, Attorney General,
Respondent.
------------------------------
LEGAL AID JUSTICE CENTER; CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; MARYLAND OFFICE OF THE PUBLIC DEFENDER; MASSACHUSETTS COMMITTEE FOR PUBLIC COUNSEL SERVICES,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 31, 2025 Decided: May 1, 2025
Before DIAZ, Chief Judge, and HARRIS and BERNER, Circuit Judges.
Petition denied by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Harris and Judge Berner joined. USCA4 Appeal: 23-2237 Doc: 70 Filed: 05/01/2025 Pg: 2 of 20
ARGUED: Rachael Maguire, Eleni Rebecca Bakst, HARVARD IMMIGRATION & REFUGEE CLINICAL PROGRAM, Cambridge, Massachusetts, for Petitioner. Margot Lynne Carter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mikaela Rabb, Crimmigration Clinic, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Petitioner. Brian Boynton, Assistant Attorney General, Lindsay B. Glauner, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Elizabeth Schmelzel, Rohmah A. Javed, LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Amicus Legal Aid Justice Center. Katherine L. Evans, Jenny Kim, Gracy Embrey, Immigrant Rights Clinic, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Amici The American Immigration Lawyers Association, Capital Area Immigrants’ Rights Coalition, Maryland Office of the Public Defender, and Massachusetts Committee for Public Counsel Services.
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DIAZ, Chief Judge:
Samir Fernandes Baptista is a lawful permanent resident who was convicted in
Massachusetts of unarmed assault with intent to rob or steal. During Baptista’s later
removal proceedings, the immigration judge and Board of Immigration Appeals concluded
that the state crime of which Baptista was convicted is categorically an aggravated felony
attempted theft offense under the Immigration and Nationality Act. So the immigration
judge ordered Baptista removed for having committed “an aggravated felony . . . after
admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Board upheld that order.
We consider whether the Board’s legal conclusion is correct. Concluding that it is,
we deny Baptista’s petition for review.
I.
Baptista is a citizen of Cape Verde. He was admitted to the United States as a lawful
permanent resident in 2005. More than a decade later, he was convicted in Massachusetts
state court of unarmed assault with intent to rob or steal. He was sentenced to nine to ten
years’ imprisonment.
The Department of Homeland Security issued Baptista a notice to appear based on
his conviction. The notice asserted that Baptista’s state conviction was “an aggravated
felony as defined in sections 101(a)(43)(G) and 101(a)(43)(U) of the [Immigration and
Nationality] Act, a law relating to an attempted theft offense . . . for which the term of
imprisonment is at least one year.” J.A. 479.
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Baptista moved several times to terminate the removal proceedings. The
immigration judge denied the motions, concluding that the state offense qualified as an
aggravated felony attempted theft offense, which in turn rendered Baptista removable
under 8 U.S.C. § 1227(a)(2)(A)(iii). Baptista appealed the immigration judge’s ruling to
the Board of Immigration Appeals, which “affirm[ed] the decision of the Immigration
Judge,” and “dismissed” the appeal. J.A. 3–7.
Baptista timely petitioned for our review. We review the Board’s legal conclusion
de novo. Sanchez v. Sessions, 885 F.3d 782, 786 n.2 (4th Cir. 2018).
II.
A.
As he did before the Board, Baptista argues that his Massachusetts unarmed assault
conviction doesn’t qualify as an attempted theft offense under the Immigration and
Nationality Act. He contends that a defendant may be convicted in Massachusetts of
unarmed assault by stealing property with the victim’s fraudulently obtained consent.
If Baptista is correct, then the offense would be broader than a generic federal theft
offense, which requires the taking to be against the victim’s will. He also presses that his
conviction can’t qualify as an attempt because it doesn’t require a defendant to commit an
overt act toward a taking.
As we explain, we reject Baptista’s arguments.
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B.
We start with a brief primer on the relevant law.
The Immigration and Nationality Act renders removable “[a]ny alien who is
convicted of an aggravated felony at any time after admission.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). “[A] theft offense . . . for which the term of imprisonment [is] at least
one year” qualifies as an aggravated felony. 1 Id. § 1101(a)(43)(G). So does “an
attempt . . . to commit” such a theft offense. Id. § 1101(a)(43)(U).
To decide whether a state offense qualifies as a theft offense under the Immigration
and Nationality Act, we apply the categorical approach, under which “we consider only the
elements of the statute of conviction rather than the defendant’s conduct underlying the
offense.” Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). We must identify the
elements of the state offense, which are “the constituent parts of a crime’s legal
definition—the things the prosecution must prove to sustain a conviction.” Mathis v.
United States, 579 U.S. 500, 504 (2016) (quotations omitted). And those elements must
be “the same as, or narrower than, those of the generic offense” for the offense to count as
a categorical match under federal law. Id. “[I]f the crime of conviction covers any more
conduct than the generic offense,” then it isn’t a categorical match. 2 Id.
1 Baptista doesn’t challenge that the punishment for a completed theft in Massachusetts is a prison term of at least one year. 2 If the crime of conviction isn’t a categorical match, we consider whether the “[state] statute sets out multiple, alternative elements of a crime, effectively creating several different crimes, and is therefore divisible.” Gomez-Ruotolo v. Garland, 96 F.4th 670, 678 (4th Cir. 2024) (quotation omitted). As explained below, we reject Baptista’s (Continued) 5 USCA4 Appeal: 23-2237 Doc: 70 Filed: 05/01/2025 Pg: 6 of 20
We deploy this analysis twice for attempt offenses, once for the offense that is the
object of the attempt, and once for the attempt itself. United States v. McCollum, 885 F.3d
300, 304–05 (4th Cir. 2018). The object of the attempt—here, Massachusetts theft—must
categorically match a generic federal offense.
The “generic definition of theft” is 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.” Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quotation omitted); see also Mena v. Lynch,
820 F.3d 114, 117 (4th Cir. 2016) (explaining that lack of consent is essential). A theft
under state law committed with the victim’s consent doesn’t fall within the federal generic
definition of theft. Such a state crime therefore isn’t a categorical match to federal theft.
Even if a state theft offense qualifies as a federal theft offense, an attempt to commit
that state offense must still independently qualify as a federal attempt offense. That
happens when a state crime’s elements include “(1) an intent to commit a theft offense, and
(2) an overt act constituting a substantial step towards the commission of the offense.”
Rendon v. Holder, 764 F.3d 1077, 1084 (9th Cir. 2014) (cleaned up).
III.
We now turn to whether Baptista’s conviction is a categorical match to an
aggravated felony attempted theft offense under the Immigration and Nationality Act.
argument that his statute of conviction’s “intent to rob or steal” element is categorically overbroad as to the “steal” prong. Thus, we need not decide whether the statute is divisible as to “rob or steal.” See Descamps v. United States, 570 U.S. 254, 257 (2013).
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Baptista was convicted of unarmed assault with intent to rob or steal under Massachusetts
law.
The statute of conviction reads:
Whoever, not being armed with a dangerous weapon, assaults another with force and violence and with intent to rob or steal shall be punished by imprisonment in the state prison for not more than ten years.
Mass. Gen. Laws ch. 265, § 20. Accordingly, the elements of this offense are: (1) an assault
(2) by an unarmed person with (3) force and violence and (4) the intent to rob or steal.
We start with whether the completed offense contemplated by the statute of
conviction—robbery or stealing—is a generic federal theft offense.
Baptista focuses on stealing. According to him, “stealing” under Massachusetts law
includes a taking of property accomplished with the consent of its rightful owner (albeit
fraudulently obtained), as in embezzlement or larceny by false pretenses. Since a generic
federal theft offense requires the taking to be accomplished “without consent,” Gonzales,
549 U.S. at 189, Baptista contends that the theft contemplated by his statute of conviction
is categorically overbroad.
If Baptista is correct, then his statute of conviction wouldn’t be a categorical match
to a federal attempted theft offense as to both the completed offense and the attempt itself.
That’s because the completed offense wouldn’t be a generic federal theft crime and because
the attempt defined in the statute wouldn’t encompass the intent to “commit a theft
offense.” Rendon, 764 F.3d at 1084.
As we explain, we reject Baptista’s reading of Massachusetts law.
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1.
First, some context.
At common law, larceny was “the unlawful taking and carrying away of someone
else’s tangible personal property with the intent to deprive the possessor of it permanently.”
50 Am. Jur. 2d Larceny § 1 (2025). Larceny was a “crime against possession” involving
“trespass” against personal property. Id. § 9. In contrast, the common law distinguished
other theft offenses—like larceny by false pretenses and embezzlement—where the owner
consented to the taking based on fraud.
The modern trend is to abandon the distinction between “various common-law
categories of crime, and instead group them under the catch-all term ‘theft.’” Id. § 2.
Massachusetts has adopted this approach. Its larceny statute reads, “[w]hoever steals, or
with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent
to steal or embezzle, converts . . . the property of another . . . shall be guilty of larceny.”
Mass. Gen. Laws ch. 266, § 30(1).
Massachusetts’s highest court has explained that “three formerly separate crimes”—
larceny, embezzlement, and obtaining by false pretenses—“have been merged into the one
crime of larceny . . . to eliminate the possibility that a defendant indicted for one of the
crimes would escape punishment if the proof at trial established another of the crimes.”
Commonwealth v. Mills, 764 N.E.2d 854, 860 (Mass. 2002). Accordingly, “the word steal
has become a term of art and includes the criminal taking or conversion by way either of
larceny, embezzlement or obtaining by false pretences.” Id. (cleaned up). And
Massachusetts allows indictments to allege broadly that a defendant “stole” without
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requiring prosecutors to specify whether the stealing occurred through “larceny of the
property,” “embezzle[ment],” or “by false pretences.” Mass. Gen. Laws ch. 277, § 41.
2.
Baptista seizes on the comment in Mills that “steal” is now a “term of art” that
includes “larceny, embezzlement or obtaining by false pretences.” 764 N.E.2d at 860. He
presses that “steal” should be construed that way across Massachusetts law, including in
the unarmed assault statute.
If Baptista is right, the use of the term “steal” in his statute of conviction would
incorporate larceny, embezzlement, and larceny by false pretenses—situations where a
taking occurs with the victim’s fraudulently obtained consent. So unarmed assault would
criminalize more conduct than a generic federal theft offense.
The Board of Immigration Appeals rejected this argument, reasoning that there is
“no indication that [the Mills court’s] understanding of the term ‘steal’ was intended to
apply outside the context of the larceny statute and the specific purposes for which it was
broadly drafted.” J.A. 5. We agree with the Board.
The statutory text doesn’t define the word “steal” and the case law interpreting
Massachusetts unarmed assault with intent to rob or steal is slim. But we find some
guidance in how Massachusetts defines the offense of robbery.
3.
Unarmed assault with intent to rob or steal falls within chapter 265 of the
Massachusetts General Laws, which is labeled “Crimes Against the Person.” Other crimes
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in this chapter include murder, manslaughter, assault and battery, and, most relevant here,
armed and unarmed robbery. Mass. Gen. Laws ch. 265, §§ 1, 13, 13A, 15, 17, 19.
The armed and unarmed robbery statutes reference “steal[ing],” just like the
unarmed assault offense of which Baptista was convicted. Id. §§ 17, 19(b). And unarmed
assault is a lesser included offense of unarmed robbery. See Commonwealth v.
Drewnowski, 694 N.E.2d 1301, 1304–05 (Mass. App. Ct. 1998).
There’s no Massachusetts model jury instruction for unarmed assault, but the
instruction for robbery informs our understanding of “steal” for chapter 265 offenses. 3 The
key language reads:
The second element the Commonwealth must prove beyond a reasonable doubt is that the defendant took the money or other property with the intent to steal it. This means that the Commonwealth must prove that the defendant took and carried away property, against [the alleged victim’s] will, with the intent to deprive [the alleged victim] of (his/her) possessions permanently.
Mass. Super. Ct. Crim. Prac. Jury Instr. § 3.16.3 (emphasis added); see also id. § 3.16.1.
The instruction states that the taking of property must be against the victim’s will
for a defendant to be convicted of robbery. In other words, a person can’t commit robbery
in Massachusetts through fraud or embezzlement. 4
3 The larceny statute the court discussed in Mills falls in chapter 266, which is labeled “Crimes Against Property.” Mass. Gen. Laws ch. 266, § 30. 4 In applying the categorical approach, we often look to model jury instructions to clarify unclear points of state law. E.g., Pugin v. Garland, 19 F.4th 437, 452 (4th Cir. 2021).
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Baptista responds that the requirement that the taking be “against the victim’s will”
refers to the actus reus of the offense, not the intent required to carry it out. On Baptista’s
reading, the defendant could intend to take property through fraud or embezzlement, but in
fact rob using force and violence.
But the instruction itself says that “the intent to steal” property “means . . . that the
defendant took and carried away property . . . against [the victim’s] will.” Mass. Super.
Ct. Crim. Prac. Jury Instr. § 3.16.3 (emphasis added). By its own terms, the instruction
forecloses Baptista’s argument.
In short, Massachusetts robbery requires that the taking be against the victim’s will.
We see no reason why the same wouldn’t be true for unarmed assault, which is also a
chapter 265 “Crime Against the Person.”
4.
We’re also persuaded that the unarmed assault statute’s requirement of “force and
violence” makes the crime impossible to commit with the victim’s consent. This element
requires, at minimum, “[p]hysical intimidation” that “produce[s] a reasonable
apprehension of bodily injury.” Commonwealth v. Gauthier, 488 N.E.2d 806, 809 (Mass.
App. Ct. 1986). The intimidating act must be intended “to put the victim in fear of
immediate bodily harm.” Commonwealth v. Jorritsma, No. 00-P-1153, 2001 WL 1561861,
at *1 (Mass. App. Ct. 2001) (unpublished table decision); see also Commonwealth v.
Musgrave, 649 N.E.2d 784, 787 (Mass. App. Ct. 1995) (explaining that Massachusetts
criminal assault requires “proof of intent to cause fear or apprehension”), aff’d, 659 N.E.2d
284 (Mass. 1996).
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Baptista argues that the “force and violence [requirement] applies only to the
assault, not the intended taking.” Reply Br. at 18. We’re unconvinced. A person may
commit an assault in Massachusetts through either an attempted battery or a threatened
battery. Commonwealth v. Porro, 939 N.E.2d 1157, 1163 (Mass. 2010). Attempted battery
requires the intent to commit a battery. Id. Threatened battery requires “menacing
conduct” performed with the intent “to place the victim in fear of an imminent battery.”
Id.
In either case, a person must direct the attempted or threatened use of force at the
victim to produce the desired result: the turnover of property in the victim’s possession.
The attempted or threatened use of force constituting the actus reus of unarmed assault
would be gratuitous if the victim could consent to the defendant’s taking.
The categorical approach 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.” Gonzales, 549 U.S. at 193. Baptista offers no case or hypothetical
showing how one could commit unarmed assault with “force and violence” despite the
victim’s consent to the taking, and we can’t imagine one. Even if there’s conceptual space
between the force and intent elements, as Baptista urges, our job isn’t “to apply ‘legal
imagination’ to the state offense.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).
Our view that the force requirement makes it impossible to commit unarmed assault
while intending to take property with the victim’s consent finds support in the elements of
Massachusetts robbery. That offense, like unarmed assault, “requires that force and
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violence be used against the victim or that the victim be put in fear.” Commonwealth v.
Johnson, 396 N.E.2d 974, 977 (Mass. 1979).
Baptista concedes that robbery’s force requirement “makes the taking against the
[victim’s] will.” Pet’r’s Br. at 19 (quotation marks omitted); see Commonwealth v. Jones,
283 N.E.2d 840, 844 (Mass. 1972) (distinguishing larceny and robbery based on the
robbery victim’s “aware[ness] of the application of force which relieves him of his
property,” which makes robbery “against the victim’s will” (cleaned up)). But Baptista
rejects the same concession for unarmed assault, without explaining the inconsistency in
his position.
We find that the force element of Massachusetts’s unarmed assault statute excludes
the possibility that a person may be convicted of that offense for a taking committed with
the victim’s consent.
5.
Our decision tracks the Eleventh Circuit’s view of a similar issue. In Kemokai v.
U.S. Att’y Gen., 83 F.4th 886 (11th Cir. 2023), the court considered whether the
Massachusetts armed robbery statute qualifies as a theft offense under the Immigration and
Nationality Act. Applying a categorical analysis, the court rejected the notion that the
armed robbery statute’s reference to intent to steal meant “that larceny, in all of its
common-law forms, constitutes an element of robbery.” Id. at 894.
The Kemokai court cited Massachusetts cases making clear that Massachusetts
robbery must occur against the victim’s will and with force and violence. Id. at 894–95
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(collecting cases). These requirements also apply to the unarmed assault statute, as we’ve
explained.
So we reject Baptista’s contention that the unarmed assault statute is categorically
overbroad because it allows for prosecution of an act committed with the intent to take
property with the victim’s fraudulently obtained consent. Rather, we conclude that the
completed offense contemplated by the Massachusetts unarmed assault statute qualifies as
a theft offense under the Immigration and Nationality Act.
Next, we consider whether Massachusetts unarmed assault with intent to rob or steal
categorically matches a generic federal attempt offense. Having concluded that the intent
required to violate the statute is the intent to commit a theft offense, we turn to whether the
statute requires “an overt act constituting a substantial step towards the commission of [a
theft].” Rendon, 764 F.3d at 1084.
To begin, we find unpersuasive the contention pressed by Baptista and amici that
an attempt offense under the Immigration and Nationality Act refers only to an offense that
a state has labeled as an attempt, such as a general attempt statute proscribing the attempt
to commit the completed offenses described in other provisions. Instead, we conclude that
the “attempt” referenced in § 101(a)(43)(U) can include a completed offense, the elements
of which satisfy the generic federal definition of an attempt.
In applying the categorical approach, our job is a narrow one. We “consider only
the elements of the offense of conviction” to determine whether the state offense sweeps
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in more conduct than the generic federal crime. Castendet-Lewis v. Sessions, 855 F.3d
253, 260 (4th Cir. 2017). And the sole question is whether the minimum conduct that the
state statute criminalizes falls within the generic federal crime.
The label a state applies to its crimes—choate or inchoate—is irrelevant. A uniform
body of federal law requires definitions that can’t be commandeered by magic words. See
Taylor v. United States, 495 U.S. 575, 592 (1990) (explaining that a federal sentencing
enhancement for predicate burglaries “must have some uniform definition independent of
the labels employed by the various States’ criminal codes”). We find persuasive a sister
circuit’s explanation “that Congress did not intend to allow the [federal] definition of
‘attempt’ to vary solely according to the labels applied by the jurisdiction in which an alien
was charged.” Sui v. INS, 250 F.3d 105, 114 (2d Cir. 2001); see also United States v.
Martinez-Garcia, 268 F.3d 460, 465 (7th Cir. 2001) (adopting Sui’s reasoning).
Our rejection of a per se prohibition on completed offenses qualifying as attempts
under the Immigration and Nationality Act isn’t novel. Several courts, for example, have
concluded that the completed offense of entering a locked vehicle with the intent to steal it
is an attempted theft offense. Martinez-Garcia, 268 F.3d at 466; Ngaeth v. Mukasey, 545
F.3d 796, 802 (9th Cir. 2008); see Lopez-Elias v. Reno, 209 F.3d 788, 792 n.7 (5th Cir.
2000) (stating in dicta that “burglary of a vehicle with intent to commit theft is tantamount
to an offense of attempted theft” (emphasis in original)).
Baptista suggests that breaking into a locked vehicle with the intent to steal is
“unique” because of “the specificity of the proscribed conduct.” Pet’r’s Br. at 38 n.6. But
his suggestion concedes that a completed offense can sometimes be attempted theft. And
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he offers no reason why other state offenses couldn’t likewise be a categorical match for
an attempted theft.
Baptista claims that the government’s efforts to remove him based on his unarmed
assault conviction would “dangerously expand” the Immigration and Nationality Act.
Pet’r’s Br. at 37. He insists that this leap “creates redundancies in state criminal codes”
and “unpredictability in the immigration consequences of criminal convictions.” Id. at 39.
Amicus curiae Legal Aid Justice Center similarly contends that the Board’s view
“improperly conflates intent with attempt,” which “unduly eas[es] the burden on the
Department of Homeland Security . . . to establish removability.” Br. of Amicus Curiae
Legal Aid Justice Center at 4 (emphasis in original). Legal Aid Justice Center presses that
the Board’s position raises a litany of “due process concerns.” Id. at 9. And other amici
note that the Board’s position would disrupt criminal practice by making it harder for
lawyers to counsel their clients about the immigration consequences of pleading guilty to
state offenses. See generally Br. of Amici Curiae The American Immigration Lawyers
Ass’n et al.
We don’t share these concerns. Our conclusion is the natural result of the
categorical approach, which requires us to look only at the elements of the state offense.
Before today, defense counsel needed to consider the categorical approach to advise their
clients on the immigration consequences of criminal convictions, and today’s decision does
nothing to change that. See, e.g., United States v. Swaby, 855 F.3d 233, 240 (4th Cir. 2017).
In short, we reject the notion that, as a matter of law, offenses defined as complete
under state law can’t qualify as attempts under the Immigration and Nationality Act.
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The final question before us is whether Massachusetts unarmed assault requires “an
overt act constituting a substantial step towards the commission of [a theft].” Rendon, 764
F.3d at 1084. Baptista challenges this element on two fronts.
First, he argues that unarmed assault doesn’t require proof of an overt act that meets
the substantial step threshold. On this point, he relies heavily on Commonwealth v.
Delgado, 326 N.E.2d 716 (Mass. 1975). In that case, four men committed armed robberies
of two convenience stores. During one of the robberies, while a co-defendant held a knife
to the store manager, the defendant said, “Hold him or I’m going to shoot him.” Id. at 717.
The Delgado court upheld the defendant’s assault conviction based on the threat, despite
the absence of direct evidence that the defendant had a gun, because the defendant’s
statement in the context of a robbery could “cause the victim reasonable apprehension with
respect to his physical security.” Id. at 719.
According to Baptista, Delgado suggests that words alone aren’t necessarily an
overt act since verbal threats don’t need to “strongly corroborat[e] the defendant’s intent,
or be capable of actually effecting that intent” to support an assault conviction. Pet’r’s Br.
at 54. But Delgado says no such thing.
The case makes clear that “words are [generally] not sufficient to constitute an
assault,” but distinguishes between “informational words and threatening words.” 326
N.E.2d at 718–19 (quotation omitted). The former category “might take the place of a
threatening movement or gesture and complete the assault” by “placing another in
reasonable apprehension that force may be used.” Id. at 719 (quotation omitted).
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Informational words can therefore transform a verbal threat of battery into a completed
assault by placing the victim in “reasonable apprehension of bodily injury.” Gauthier, 488
N.E.2d at 809.
In short, because a victim must always be at least objectively afraid of bodily injury
even in the threatened battery form of assault, there must be an overt act causing such fear.
We therefore reject Baptista’s notion that Massachusetts unarmed assault doesn’t require
proof of an overt act.
Baptista’s final challenge is based on his view that Massachusetts law criminalizes
assaults after a larceny. On his reading, unarmed assault can’t necessarily be a substantial
step toward the commission of a larceny because the assault can occur after the defendant
abandons his or her intent to steal.
But that’s wrong. The cases Baptista cites don’t criminalize assaults that take place
after a larceny. They show instead that Massachusetts courts affirm assault convictions
where the defendant’s conduct shows a continuing intent to steal when the assault occurs.
Consider Commonwealth v. Correia, 457 N.E.2d 648 (Mass. App. Ct. 1983). There,
the defendant stole the victims’ handbags from their hotel room while they were sleeping,
reentered the room, and then assaulted them. The court found “sufficient evidence for the
jury to conclude that the defendant returned to the bedroom with a continuing intent to
steal . . . .” Id. at 651. It rejected the notion that the defendant completed the larceny before
the assaults because he returned to the hotel room, suggesting that he intended to take more
items. Id.
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Likewise, in Commonwealth v. Assad, 476 N.E.2d 629 (Mass. App. Ct. 1985), the
court found that the evidence supported the jury’s finding that the defendant had broken
into the victim’s apartment to steal. After the victim in Assad returned to his apartment to
find “two strangers,” one of the strangers “followed him, sprayed him with a liquid which
[he] took to be mace, and knocked him down.” Id. at 630.
On appeal of the defendant’s conviction for assault with a dangerous weapon in a
dwelling house with intent to rob, the defendant argued that “there was no evidence of
intent to rob.” Id. at 631. The defendant insisted that he “used the spray can to facilitate
an escape from the victim’s apartment, not to steal from the victim or in his presence by
putting him in fear, i.e., with the intent to rob the victim.” Id.
The Assad court reasoned that the jury could have found that “the two men who had
broken into an apartment,” “armed . . . with chemical spray devices,” “were there to steal.”
Id. As for the link between the intent to rob and the assault, the court noted that the assault
“was connected to the objective of stealing property from [the] apartment,” even if it
occurred during an escape. Id.
Correia and Assad show that the assault must be linked to a defendant’s ongoing
aim of robbing or stealing from the victim. So long as the defendant assaults a victim to
further that aim, the evidence can support a conviction. That’s enough for the assault to
constitute a substantial step toward the commission of the theft offense, and so
Massachusetts unarmed assault is a categorical match to an attempted theft for purposes of
the Immigration and Nationality Act.
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IV.
For the reasons given, Baptista’s petition for review is
DENIED.