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).").
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 . . .
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.
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 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 - 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 - DOCUMENTS INCLUDED - CHARGING DOCUMENT
United States v. Torres-Diaz, ___ F.3d ___, 2006 WL 225615 (5th Cir. Jan.
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
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.
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.
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).