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).