Safe Havens

(B)  Probation and Presentence Reports.  The probation report does not constitute part of the conviction record.[151]  Even if the probation report has been adopted by the court as part of the judgment of conviction, however, factual statements contained in the report should not be considered as part of the record of conviction.  The facts contained in the probation report are frequently based on the police reports, and should no more be an appropriate part of the record of conviction than the police reports on which they are based.  Although a probation report may state the facts upon which the charge was based, there is no guarantee that the noncitizen pleaded guilty to those facts.[152]

One court has indicated that where the defendant makes no objection to the factual portion of the presentence report, his “acquiescence in the factual account presented in the PSR gives us the equivalent of a stipulation of facts.”[153]  Then, because he did not object to consideration of facts outside the “record of conviction” in characterizing the offense as an aggravated felony until the reply brief, which the court held to be too late, the court of appeals used those facts in the determination whether the conviction was for a deportable offense.  The law, however, is barren of any support for such an “implied stipulation,” especially where the defendant had no reason to believe the facts contained in the PSR could be used as an addition beyond the record of conviction in characterizing the nature of the offense for immigration purposes.  One wonders whether the same court would conclude, if the prosecution did not object to facts in the PSR that indicated facts favorable to the defendant, such as that he committed the offense for the most laudable of motives, such as the desire to save the life of a son who needed an operation, that the prosecution had engaged in an implied stipulation that those facts could be used to form the conclusion that the defendant did not exhibit moral turpitude when committing the offense.

            While presentence reports may not be considered in divisible-statute analysis, courts have held that they may be examined in determining the existence of a conviction.[154]  See § 6.21, supra.

[151] Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. September 11, 2003); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (the report of a probation officer may not be considered in determining whether a crime involves moral turpitude).  Cf. United States v. Kovac, 367 F.3d 1116 (9th Cir. May 12, 2004) (hearsay statement attributed to defendant in state presentence report that describes conduct underlying prior criminal conviction is insufficient to designate defendant a career offender under U.S.S.G. § 4B1.1).

[152] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes); Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. October 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana); Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. September 9, 2003) (petition for review granted, vacating the BIA decision ordering petitioner removed from the United States for having been convicted of an aggravated felony, because the Immigration Judge and the BIA improperly relied upon the narrative statement of facts contained in petitioner’s pre-sentence report in concluding that petitioner had been convicted of an aggravated felony); United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2001) (en banc) (“a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition.”).

[153] United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. 2002).

[154] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 7.7 (2005).