The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is not a theft aggravated felony because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. “Because it is possible to commit theft by deception with the consent of the owner, Oregon’s theft statute expressly includes conduct outside of the generic definition.” “A force element generally implies a lack of consent—the force can be used, for example, to overcome resistance or otherwise compel behaviors. But the statute here expressly contemplates that such force may be used to compel another person, rather than the property owner, to deliver the property or to engage in other conduct which might aid the commission of the theft.”
“Consequently, even with the additional robbery elements, the text of the statute expressly includes situations involving consensual takings. Under subsection (b), a defendant could be convicted if she threatened force against a third party to compel that third party to convince a property owner, by deception, to give the property to the defendant consensually. In that scenario, the property would have been taken with the 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.”
“Similarly, under subsection (a), a defendant could be convicted if the taking was consensual (although deceptive), but force was used against a third party to prevent that person from retrieving the property right after it was received by the thief.”
The full text of Lopez-Aguilar v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/28/17-73153.pdf