The record of conviction generally includes “the charge (indictment[, complaint, information, citation, or other charge to which a plea or verdict was entered]), plea, verdict and sentence.  The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted.”[73] 

 

To determine whether Petitioner was convicted of an aggravated felony and is therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii), we employ the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Tokatly v. Ashcroft, 371 F.3d 613, 621-22 & n. 8 (9th Cir. 2004). The essence of the Taylor approach is that the sentencing court may not look beyond the record of the prior conviction to the facts underlying it. Tokatly, 371 F.3d at 620.[74]

 

In Shepard v. United States,[75] the Supreme Court reaffirmed Taylor v. United States,[76] and made clear that in the context of the Armed Career Criminal Act (“ACCA”),[77] the record of conviction for a conviction obtained through a guilty plea is limited to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”[78]  Just as the Taylor reasoning has been adopted into the immigration context, the Shepard decision should be equally influential in immigration cases to limit the analysis to certain documents within the record of conviction.

 

Technically speaking, the record of conviction may be used only to identify the particular offense of conviction, where more than one offense is included within the divisible statute of conviction, and may not be used to convert the quest to determine the identity of the offense of conviction and its essential elements into a broader investigation into the facts of the case, even those facts shown by the record of conviction.  See § 6.22, supra. 

 

Some courts, however, will use against the defendant any facts shown in the record of conviction to bring the offense of conviction within a ground of deportability.  There are several contexts in which courts are especially tempted to go outside the record: (a) to determine the age of the victim to see whether the offense constitutes aggravated felony sexual abuse of a minor[79] or an offense involving a child under the domestic violence deportation ground;[80] (b) to determine the existence of a domestic relationship between the defendant and the victim that might bring a conviction within the domestic violence deportation ground;[81] and (c) to determine the amount of loss to the victim(s) of a fraud offense, to see whether it constitutes an aggravated felony fraud conviction.[82] 

 

This practice, however, can be challenged on the ground that the determination of whether a given conviction falls within a ground of deportation is determined only by the elements of the offense of conviction, rather than the facts, even if the facts are contained within the record of conviction.  If the court does decide it may go outside the record of conviction to consider these additional facts, then a conviction whose record does not trigger deportation may nonetheless trigger deportation when additional facts outside the record are added to the court’s consideration.  In these instances, certain offenses that would be safe havens without consideration of additional facts may no longer be safe, and it is necessary to obtain different convictions to avoid these grounds of deportation.

           

[73] Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).  Accord, Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (including indictment, plea, verdict, and sentence in “record of conviction”); Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979) (including charge or indictment, plea, verdict, and sentence in “record of conviction”); Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (including charge or indictment, plea, judgment or verdict, and sentence in “record of conviction”), holding modified by Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  See also Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979) (malicious trespass, information charged intent to commit petty larceny).

[74] Li v. Ashcroft, 389 F.3d 892, 896 (9th Cir. Nov. 19. 2004).

[75] Shepard v. United States, 125 S.Ct. 1254 (March 7, 2005).

[76] Taylor v. United States, 495 U.S. 575 (1990).

[77] 18 U.S.C. § 924(e).

[78] Shepard v. United States, 125 S.Ct. at 1263 (March 7, 2005).

[79] See § § 7.96, et seq., infra.

[80] See § 7.157, infra.

[81] See § 7.154, infra.

[82] See § 7.82, infra.

CONVICTION - RECORD OF CONVICTION - DISMISSED CHARGES ARE NOT PART OF RECORD OF CONVICTION
The Supreme Court decision in Shepard v. United States, 544 U.S. ___, 125 S.Ct. 1254 (March 7, 2005) in effect overruled the Board's decision in Matter of Vargas, 23 I. & N. Dec. 651 (BIA 2004), in which the BIA inferred the elements of the offense of conviction from the original charge, even though the original charge was not the charge of which the defendant had ultimately been convicted. The Shepard/Taylor holdings apply to immigration cases. In Vargas, the Board had held: In this case, we find that section 125.20 of the New York Penal Law is a divisible statute . . . Therefore, without referring to the conviction record, we are unable to determine whether the respondent was convicted of a removable offense. Although the conviction record does not specify the subsection under which the respondent was convicted, it does indicate that he was initially charged with murder in the second degree under section 125.25(1)of the New York Penal Law, because "with intent to cause the death of [his victim, he] caused [her] death . . . by stabbing her with a sharp instrument." Based on our examination of the record of conviction, we conclude that the respondent was convicted under either subsection 1 or 2 of section 125.20, which define lesser included offenses to the crime of second-degree murder. Matter of Vargas, 23 I. & N. Dec. 651, 654-655 (BIA 2004). In Shepard, the court stated: The Court held that generic burglary could be identified only by referring to charging documents filed in the court of conviction, or to recorded judicial acts of that court limiting convictions to the generic category, as in giving instruction to the jury. The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602 (discussing the use of these documents as an "example", since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had "necessarily" rested on the fact identifying the burglary as generic. The Government argues for a wider evidentiary cast, however, going beyond conclusive records made or used in adjudicating guilt . . . Shepard v. United States, 544 U. S. ___, ___ (2005)      The government could argue that under New York law, a plea to a lesser included offense does not change anything in the original charge but the reduced elements, so as a matter of law the plea to the lesser offense otherwise carried the same elements as the original charge.  In states like California, however, in which there is no such limitation on pleas to lesser include offenses, Shepard does in effect overrule Vargas.  Also Shepard should overturn use of an "Abstract of Conviction" type document for purposes of identifying the count of conviction, as in United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).  (While the Ninth Circuit said the Abstract could not be used for a verbal summary of the offense of conviction, it does suffice to identify the count of conviction, e.g., "Count I" in Velasco and Navidad-Marcos).  Many states have such documents.  Just because the Abstract of Judgment refers to Count I, it does not establish that the defendant in fact pleaded guilty to all allegations in Count I of the original complaint, since charges often are modified before plea. Shepard makes this a holding.      The Ninth Circuit in Martinez-Perez v. Ashcroft, 393 F.3d 1018, 1022-23 (9th Cir. 2004), relied on a dismissed charge to hold that the defendant had not been convicted of aiding and abetting.  The court has since reopened Martinez-Perez sua sponte in light of Shepard.       Thanks to Kathy Brady for this argument.       Indeed the Velasco-Medina holding in general should be reconsidered in light of Shepard, which found that the documents that establish the elements of a conviction by plea with the level of certainty required by Taylor include "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Ibid., 161 L.Ed. 2d 205, 214. Velasco-Medinas reliance on the Abstract of Judgment combined only with the charging papers is based on its unexamined assumption that the factual allegations that appear in the original charging papers of a criminal case will be exactly the same as those to which a plea ultimately was entered. In fact, criminal charges are frequently amended at plea, not only as to the offense charged but also as to factual allegations. As this case amply demonstrates, if the Abstract indicating a plea was entered to Count I is considered only in combination with Count I in the initial charging document, it merely shows what the government hoped to prove, not what actually was proved or pleaded to. See, e.g., Corona-Sanchez, 291 F.3d at 1211; Velasco-Medina, 305 F.3d at 852 ("By itself, the Information contained the elements of the crime the government set out to prove; it did not establish the elements to which Velasco-Medina actually admitted in his guilty plea." (emphasis in original)); United States v. Belless, 338 F.3d 1063, 1068-69 (9th Cir. 2003). To unequivocally establish the elements of the offense of conviction, an Abstract of Judgment must be combined with unambiguous evidence of the content of the charge at the time the plea was entered to it, such as the reporters transcript or written plea agreement that constitute proper parts of the record of conviction under Shepard. With these documents, the Abstract is accurate, although redundant. Without these documents, the Abstract merely directs the reviewing court back to the original charge, which is insufficient evidence in a modified categorical analysis because it may have been modified before the plea was entered. (See discussion of similar drawbacks of a description of the charge contained in a probation report. Corona-Sanchez, 291 F.3d at 1212-1213.) Further, the Ninth Circuit has acknowledged that the California Abstract of Judgment is a document that is prepared by clerks, not a judge, and is well-known for including errors. See United States v Navidad-Marcos, 367 F.3d 903, 908-909 (9th Cir. 2004).

RECORD OF CONVICTION - POLICE REPORTS
Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary so as to serve as a predicate offense for a sentence enhancement).
http://laws.findlaw.com/us/000/03-9168.html      Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction).  The United States Supreme Court, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.      Thanks to Dan Kesselbrenner for this analysis.      In Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), the United States Supreme Court held that the categorical analysis of Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), applies to the determination of whether a conviction resulting from a guilty plea constitutes a generic burglary conviction, so as to served as a predicate conviction under the Armed Career Criminal Act to enhance a federal criminal sentence. The court therefore held that this determination was based on a categorical analysis of the elements of the offense of conviction, rather than the underlying facts of the case, and the sentencing court was precluded from considering the facts contained in police reports or complaint summaries. Instead, the Taylor analysis is limited to consideration of the charge to which a plea is entered, the plea agreement, and any facts agreed to by the defendant during the plea process. The Supreme Court also suggested that the same analysis (appropriately modified) would be applied to convictions resulting from court trials.      The court summarized its holding as follows: The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Ibid. at 1257.      In the process of reaching its decision, the court stated: We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses and that Taylor's reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with non-generic offenses. See 348 F.3d, at 312, n. 4 (citing cases). Shepard wisely refrains from challenging this position, for the ACCA nowhere provides that convictions in tried and pleaded cases are to be regarded differently. It drops no hint that Congress contemplated different standards for establishing the fact of prior convictions, turning on the basis of trial or plea. Nothing to that effect is suggested, after all, by the language imposing the categorical approach, which refers to predicate offenses in terms not of prior conduct but of prior "convictions" and the "element[s]" of crimes. Taylor, 495 U.S., at 600-601, 110 S.Ct. 2143 (citing 18 U.S.C. 924(e)). Nor does the Act's legislative history reveal a lesser congressional preference for a categorical, as distinct from fact-specific, approach to recognizing ACCA predicates in cases resolved by plea. Taylor, 495 U.S., at 601, 110 S.Ct. 2143. And certainly, "the practical difficulties and potential unfairness of a factual approach are daunting," ibid., no less in pleaded than in litigated cases. Finally, nothing in Taylor's rationale limits it to prior jury convictions; our discussion of the practical difficulties inherent in looking into underlying circumstances spoke specifically of "cases where the defendant pleaded guilty, [in which] there often is no record of the underlying facts." Ibid. Our job, then, is to find the right analogs for applying the Taylor rule to pleaded cases. Ibid. at 1259.      This reasoning applies with equal force to the question whether Congress intended to apply the repeal of INA 212(c) relief retroactively to disturb the settled expectations of those defendants whose convictions resulted from jury trials, rather than from guilty pleas. The legislative history and purposes of the repeal are barren of any suggestion that Congress meant to distinguish between convictions resulting from jury trials, as opposed to guilty pleas, for this purpose.      The Supreme Court therefore reaffirmed the Taylor reasoning, which was announced in a case in which the conviction resulted from a jury trial, and applied it to convictions resulting from court trials and guilty pleas: The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602, 110 S.Ct. 2143 (discussing the use of these documents as an "example"), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had "necessarily" rested on the fact identifying the burglary as generic, Taylor, supra, at 602, 110 S.Ct. 2143, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case. Ibid. at 1259-1260 (footnote omitted). Therefore, in the context of a conviction resulting from a court trial, the court applying a categorical analysis may consider the charge of conviction and the "bench-trial judge's formal rulings of law and findings of fact . . . ." Ibid. at 1259. The court may not look to police reports or complaint applications.      In the context of a conviction resulting from a guilty plea, the court applying a categorical analysis may consider the charge of conviction and "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Ibid. at 1259-1260. The court may not look to police reports or complaint applications.

BIA

CONVICTION - RECORD OF CONVICTION - TRANSCRIPT OF PLEA COLLOQUY - DEFENDANTS STATEMENTS
Matter of Mena, 17 I. & N. Dec. 38, Interim Decision (BIA) 2719, 1979 WL 44360 (BIA July 12, 1979) (transcript from court proceedings which resulted in conviction for possession of controlled substances at which the respondent, under questioning by judge as part of the arraignment prior to acceptance of a guilty plea, admitted possession of heroin, with knowledge that the substance was heroin, can be considered as part of the "record of conviction."). Matter of Paulus, 11 I & N Dec. 274 (BIA 1965), and Matter of Cassisi, 10 I & N. Dec. 136 (BIA 1963), distinguished.

Fifth Circuit

RECORD OF CONVICTION - DOCUMENTS INCLUDED - CHARGING DOCUMENT
United States v. Torres-Diaz, ___ F.3d ___, 2006 WL 225615 (5th Cir. Jan. 30, 2006) (for purposes of determining which one of the various alternative subdivisions of the statute of a prior conviction was the subdivision of which the defendant was convicted, the charging document filed in the prior case unambiguously identifying the one particular subdivision charged suffices to carry that burden, absent anything in the record affirmatively casting doubt on, or creating an ambiguity respecting, that conclusion, at least where no claim is made before the district court that the prior conviction was in actuality under a different subdivision than that reflected in the charging instrument or in actuality the conviction was based on some other, materially different charging document).

RECORD OF CONVICTION - PRESENTENCE REPORT - NOT CONSIDERED IN DETERMINATION OF NATURE OF CONVICTION UNDER MODIFIED CATEGORICAL ANALYSIS
United States v. Gonzalez-Chavez, ___ F.3d ___ , 2005 WL 3196524 (5th Cir. Nov. 30, (2005) (district court not permitted to consider facts contained in presentence report in determining nature of prior offense of conviction in deciding whether the apply sentence enhancement for aggravated felony, because PSR facts are not explicit findings the Florida court made or used in adjudicating guilt), citing United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir. Aug. 23, 2005); United States v. Garcia-Lopez, 410 F.3d 268 (5th Cir. May 18, 2005) ("[A] district court is not permitted to rely on a PSRs characterization of a defendants prior offense for enhancement purposes.").

RECORD OF CONVICTION - PRESENTENCE REPORT IMPROPERLY CONSIDERED IN DETERMINING WHETHER CONVICTION CONSTITUTED AGGRAVATED FELONY FOR CRIMINAL SENTENCE ENHANCEMENT PURPOSES
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (district court erred in relying on presentence report from prior conviction in determining whether prior conviction constituted drug trafficking aggravated felony for purposes of triggering a sentence enhancement for illegal reentry after deportation).

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT
United States v. Gutierrez-Ramirez, __ F.3d __, 2005 WL 762664 (5th Cir. April 2, 2005) (Although strict limitation to examination of statutory elements of statute of conviction is not required to determine whether an offense is a "drug trafficking offense" for sentence enhancement purposes, the courts are limited to examination of the indictment and/or jury instructions; California abstract of judgment could not be used to determine that noncitizens prior drug conviction was a "drug trafficking offense").

Ninth Circuit

CONVICTION - RECORD OF CONVICTION - DOCUMENTS EXCLUDED - PROBATION REPORT
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction excludes probation report).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf

CONVICTION - RECORD OF CONVICTION - DOCUMENTS EXCLUDED - POLICE REPORTS
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction excludes police reports).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf

CONVICTION - RECORD OF CONVICTION - DOCUMENTS INCLUDED - PLEA AGREEMENT - ADMISSION OF ALL FACTS CHARGED IN INFORMATION
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction includes signed plea agreement admitting facts charged in information, including entry of a residence, so conviction under divisible burglary statute qualified as burglary for purposes of imposing a 16-level increase in base offense level under U.S.S.G. 2L1.2(b)(1)(A)(ii) (2003) for illegal reentry sentence).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf

RECORD OF CONVICTION - FACTUAL BASIS - STIPULATION TO CONSIDER FACTS IN MOTION AS FACTUAL BASIS FOR PLEA AUTHORIZED DISTRICT COURT TO CONSIDER THOSE FACTS IN ASSESSING THE NATURE OF THE OFFENSE FOR PURPOSES OF DETERMINING WHETHER IT CONSTITUTED A CRIME OF VIOLENCE FOR PURPOSES OF IMPOSING A SENTENCE ENHANCEMENT FOR ILLEGAL REENTRY
United States v. Hernandez-Hernandez, ___ F.3d ___, ___ n.5, 2005 WL 3440815 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code 236, constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal reentry).

RECORD OF CONVICTION - PROBATION REPORT NOT INCLUDED WITHIN RECORD OF CONVICTION FOR PURPOSES OF AGGRAVATED FELONY SENTENCE ENHANCEMENT OF ILLEGAL REENTRY SENTENCE
United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sentencing judge's statement in transcript that he read and considered the probation report not sufficient to bring probation report within record of conviction, for purposes of assessing the elements of the offense of conviction to determine whether it constituted a crime of violence under USSG 2L1.2(b)(1)(A) for purposes of imposing a 16-level increase in the base offense level of an illegal reentry sentence).

MODIFIED CATEGORICAL ANALYSIS
Martinez-Perez v. Ashcroft, __ F.3d __ (9th Cir. August 3, 2005) (Shepard v United States, 125 S.Ct. 1254 (2005) applies to immigration cases).      In this very good decision, the Supreme Court held that in a modified categorical analysis of a conviction by guilty plea, the court can consult only limited documents as part of the record of conviction.  Describing Shepard, the Ninth Circuit said:

"The Court explained that the sentencing court can look only to "the charging document, written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the defendant assented." Id. at 1257. These are documents from which "a later court could generally tell whether the plea had necessarily rested on the fact identifying the burglary as generic . . . just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case." Id. at 1260; see also Corona-Sanchez, 291 F.3d at 1211 (explaining that the court can consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime). Charging papers alone, however, are never sufficient."  (emphasis added)

     This case provides us with a Ninth Circuit ruling supporting Shepard, with which to attack the notion that a charging document alleging Count X, coupled only with an Abstract of Conviction identifying that a plea was made to Count X, is proof that all of the elements charged in Count X actually were pled to.  See United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002) (Abstract plus charging document is sufficient); see also United States v Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (written notation in the Abstract of Conviction cannot be reviewed, but the Court did consider the Abstract's notation of the Count of conviction combined with the charging document).  In fact, charges frequently are amended before plea, to change either the offense charged as in  this case, the language of the charge, or factual details.  Thus the fact that some version of "Count I" ultimately was pled to does not by itself prove that  all of the allegations in the original "Count I" were pled to.      In Martinez the relevant record was only a charging paper alleging robbery in Count I, and an Abstract of Judgment showing that the defendant had pled guilty to theft in Count I.  In the original opinion the Ninth Circuit wrongly held that because the robbery charge did not mention aiding and abetting, this proved the person was charged with directly committing the offense.  (Again, in the new opinion the Court acknowledges that this is not true under California law.)  In the original opinion the Court then took its (wrong) assumption that the robbery charge could not include aiding and abetting, and wrongly used this information from the dropped robbery charge to categorize the plea to theft.  Use of such information from a dropped charge not only is against Shepard, but violates well-established Ninth Circuit precedent. The Court corrects that in this opinion.      ICE may try to limit the effect of this decision by asserting that an Abstract of Conviction coupled with a charging document is insufficient only when the offense charged is different from the offense pled to -- e.g. as here where robbery was charged and theft was pled to.  Counsel should oppose this interpretation of Martinez, as well as argue straight from Shepard.  While the Martinez court did note that the charged and pleaded offenses were different, it went on to cite the Shepard requirement that a record must contain a plea agreement, transcript, or other specific evidence of the actual elements pled to, in order to establish those elements as part of the offense of conviction.      "Further, because the administrative record does not include a plea agreement, a transcript of the plea colloquy, or a statement of the factual basis for the guilty plea, cf., Parilla v. Gonzales, No. 03-74010, slip op. at 8031-32 (9th Cir. Jul. 11, 2005), we likewise cannot determine whether Martinez pled guilty to the taking of property, without consent, with the criminal intent to deprive the owner of rights and benefits of ownership, as a principal and not as an aider or abettor, as required by the generic definition of a theft offense. See Corona-Sanchez, 291 F.3d at 1205."      Thanks to Kathy Brady for this analysis.

CONVICTION -- RECORD OF CONVICTION - DOCUMENTS INCLUDED IN RECORD OF CONVICTION IF SPECIFICALLY INCORPORATED INTO GUILTY PLEA OR ADMITTED BY A DEFENDANT - CERTIFICATION FOR DETERMINATION OF PROBABLE CAUSE
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) (where guilty plea agrees that certification for determination of probable cause will be reviewed by the court in determining whether there is a factual basis for the plea and in sentencing, the document is included within the record of conviction for purpose of enabling the immigration court to consider the facts recited within it in determining the elements of the offense to which the defendant engtered a guilty plea, in assessing the immigration consequences).

CONVICTION -- RECORD OF CONVICTION - DOCUMENTS BECOME INCLUDED IN RECORD OF CONVICTION IF SPECIFICALLY INCORPORATED INTO GUILTY PLEA OR ADMITTED BY A DEFENDANT
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) ("Although police reports and complaint applications, standing alone, may not be used to enhance a sentence following a criminal conviction, Shepard, 125 S.Ct. at 1257, 1259-60, the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant. United States v. Smith, 390 F.3d 661, 664-65 (9th Cir.2004) (approving use of "the factual basis for the charge, as set forth by the prosecutor at the change of plea hearing" to which "defense counsel did not object"); United States v. Lopez-Patino, 391 F.3d 1034, 1037-38 (9th Cir.2004) (admissions the defendant made at his plea colloquy); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-1100 (9th Cir.2004) (restitution order referenced in a plea agreement).").

CONVICTION - RECORD OF CONVICTION IN GENERAL - DOCUMENTS OUTSIDE RECORD OF CONVICTION
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) ("Documents and testimony that would require us to make factual determinations that were not necessarily made in the prior criminal proceeding lie outside the scope of our inquiry under the modified categorical approach. Tokatly, 371 F.3d at 623-24 (testimony of a crime victim); Lara-Chacon, 345 F.3d at 1153-54 (a pre-sentencing report); United States v. Melton, 344 F.3d 1021, 1029 n.4 (9th Cir.2003) (police affidavit establishing probable cause).").

RECORD OF CONVICTION - ADMISSION BY DEFENDANT IN FEDERAL CRIMINAL COURT DOES NOT EXPAND RECORD OF PRIOR CONVICTION FOR PURPOSES OF DETERMINING WHETHER IT TRIGGERS FEDERAL CONSEQUENCE
United States v. Nobriga, ___ F.3d ___, ___ n.4 (9th Cir. May 20, 2005) (per curiam) (assuming, without deciding, that defendant's admission in district court that victim of prior Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), was "former girlfriend" was not admissible to establish that prior conviction fell within the definition of a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because: "Such a post hoc admission is not pertinent to Taylor's modified categorical approach. The statement at issue did not come in the plea colloquy for the offense of conviction, which generally is judicially noticeable under Taylor and Shepard. See, e .g., United States v. Smith, 390 F.3d 661 (9th Cir. 2004), as amended, No. 03-30533, 2005 WL 957188 (9th Cir. Apr.27, 2005). Rather, Nobriga's statement about the former offense was made in the district court in this case. Such a statement is not judicially noticeable under Taylor and Shepard. See, e.g., Shepard, 125 S.Ct. at 1261 (reaffirming Taylor's holding that "respect for congressional intent and avoidance of collateral trials require that evidence of generic conviction be confined to records of the convicting court approaching the certainty of the record of conviction in a generic crime State" (emphasis added)).").

RECORD OF CONVICTION - CHARGING PAPER AND RECORD OF CONVICTION
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), constituted a conviction of a misdemeanor crime of violence, under 18 U.S.C. 921(a)(33)(A)(ii), because the charging papers and the judgment of conviction made clear that Nobriga pleaded guilty to "physically abus[ing] a family or household member," and not to "refus[ing] compliance with a lawful order of a police officer").

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT RECORD OF CONVICTION - PRESENTENCE REPORT
United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

CONVICTION - PLEA - FACTUAL BASIS - POLICE REPORTS IN RECORD OF CONVICTION - STIPULATING TO CONTENTS
Summary: The  Ninth Circuit held in Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005), that although police reports and complaint applications standing alone may not be considered in a modified categorical analysis, the contents of the documents may be considered if specifically incorporated into the guilty plea or admitted by the defendant.  The practice of pleading nolo contendere and stipulating to the contents of a police report can be extremely harmful to non-citizen defendants.  It is far better to plead guilty and leave the police report out of the plea, if that is an option.      Discussion: The "record of conviction" that the judge can consider generally is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.  Shepard v. United States, 125 S. Ct. 1254, 1257 (2005). In Parrilla the Court was considering whether a conviction of Washington Revised Code section 9.68A.090, communicating with a minor for immoral purposes, constituted an aggravated felony as "sexual abuse of a minor."  An aggravated felony conviction has the harshest possible immigration penalties.  The court found that some parts of the statute constituted sexual abuse of a minor, while others didnt.  To determine whether this particular conviction was for sexual abuse of a minor, the court then examined the record of conviction to determine the exact elements of the offense of conviction.  The record of conviction that the court relied upon consisted of a form information stating the bare elements of the statute and a guilty plea in which the defendant explicitly stated, "I understand the Court will review the certification for determination of probable cause [CPDC] in determining if there is a factual basis for this plea and for sentencing."  The problem with the CPDC was that it detailed the facts of the offense, thereby making it unequivocally clear that defendants conviction constituted sexual abuse of a minor.  The Court concluded that "by explicitly incorporating the CDPC into his guilty plea, Parrilla in context admitted the facts in the CPDC and rendered it judicially noticeable for the purpose of applying the modified categorical analysis."      This case means that defense counsel and defendants should avoid stipulating to facts in police reports or complaint applications, i.e., documents that are outside the "record of conviction" as a factual basis for the guilty plea.  Some PDs have informed us that in a no contest plea, the judges require that defendants stipulate to the facts in the police report.  On the other hand, a guilty plea does not require such a stipulation.  For immigration purposes, a nolo contendere plea offers few if any advantage over a guilty plea.  It is thus, preferable that defendants enter a guilty plea rather than a no contest plea, or do whatever is necessary, to avoid stipulating to the facts in the police report where those facts are adverse to the defendants immigration situation.      For further discussion of the record of conviction, and the modified categorical analysis, see Note: Record of Conviction at the Chart and Notes at www.ilrc.org/criminal.html.      Thanks to Kathy Brady and Angie Junck.

Tenth Circuit

RECORD OF CONVICTION
United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code 12020(a)(1) cannot be considered a "firearms offense" where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun).