Aggravated Felonies

(A)  Sufficiency.  In the Ninth Circuit, the charging papers are never sufficient, in and of themselves, to establish the elements to which a noncitizen entered a plea of guilty.  Instead, the charging paper must be coupled with some other evidence from the record of conviction establishing that a plea or verdict was entered to the particular charge.[226]  The Fifth Circuit has found that for purposes of divisible statute analysis, a charging document “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.”[227]  Thus, while the Ninth Circuit places the burden strictly on the government to show evidence of the exact plea, the Fifth Circuit allows the burden to shift to the noncitizen if the charging papers are clear.

            The Fifth Circuit approach appears to be a result-oriented, unprincipled abandonment of the long-standing rule that the government bears the burden of proof on this issue.  The precedent is particularly strong in the deportation context, in which the United States Supreme Court, and many circuit decisions, have placed the burden of proving every fact on which deportation depends upon the government by clear and convincing evidence.[228]  See § 4.7, supra.

[226] United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (“[I]f a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pleaded guilty to the elements of the generic crime. Charging papers alone are never sufficient.”).  See also Martinez-Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (a charging document alleging Count X, coupled only with an Abstract of Conviction identifying that a plea was made to Count X, is not proof that the defendant pleaded to all of the elements charged in Count X); United States v Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (written notation in the Abstract of Conviction cannot be relied upon, but the court did consider the Abstract’s notation of the Count of conviction combined with the charging document); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (“It cannot be disputed that Count One’s language sets out the generic elements of burglary . . . .  The Information alone, however, cannot support a finding that Velasco-Medina’s burglary conviction was an aggravated felony. 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.”); United States v. Belless, 338 F.3d 1063, 1068, 1069 (9th Cir. 2003) (“[T]he record indicates that Belless was charged with conduct that was a violent act and not merely a rude or insolent touching. But the record does not reveal the conduct to which he pleaded and for which he was convicted. Accordingly we cannot conclude that the trier of fact ... in this case necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense.”).

[227] United States v. Torres-Diaz, 438 F.3d 529, 539, 535 (5th Cir. Jan. 30, 2006).

[228] Woodby v. INS, 385 U.S. 276 (1999).