Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. September 11, 2003) (on denial of rehearing) ("In several cases cited by Ashcroft we have noted the documents that the Board of Immigration Appeals is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony. The documents include the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). We have specifically held that a Presentence Report is insufficient evidence. United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc). Four days after Corona-Sanchez was filed, an opinion of this court was filed permitting use of a Presentence Report. Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. 2002), earlier mandate withdrawn, petition for rehearing granted, prior opinion withdrawn, petition for review granted, 350 F.3d 966 (9th Cir. Nov. 21, 2003). The opinion failed to take note of the en banc decision and was pretty clearly drafted and sent to the printer before Corona-Sanchez came down. The opinion was not withdrawn or modified, providing what was delicately called "noticeable tension in our recent caselaw." Chang v. INS, 307 F.3d 1185, 1191 (9th Cir. 2002). That tension has been resolved by the enumeration in Huerta-Guevara, 321 F.3d at 888 of the usable documents along with the explicit repetition of the rule of Corona-Sanchez that a Presentence Report is insufficient.").

jurisdiction: 
Ninth Circuit

 

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