Admissions by the defendant to the court at the time of pleading guilty may be regarded as part of the record of conviction.[233]  The United States Supreme Court equates the factual basis in a guilty plea to jury instructions in a conviction resulting from trial.[234]  Where both parties in the criminal case agree, additional documents may also be properly considered in determining the nature of the offense of conviction.[235]  Criminal law generally requires that when entering a guilty plea, the parties stipulate to a factual basis for the plea.  In California, for example, a factual basis must be stipulated and the parties must specify a particular document that contains that factual basis.[236]  The establishment of a factual basis is therefore required to enter a plea.

 

In a somewhat disturbing decision, the Ninth Circuit has decided that the courts can essentially look to the facts as described in any document when conducting a divisible statute analysis, as long as the prosecution and the defendant’s attorney have stipulated to those facts as a basis for a guilty plea.[237]  The court determined that the noncitizen had been convicted of an aggravated felony crime of violence based upon a conviction for false imprisonment that may be committed through “violence, menace, fraud, or deceit.”[238]  While the charge and the plea itself went no farther than the language of the statute, the document stipulated to contain the factual basis for the plea described the offense in detail, showing that the false imprisonment was committed through violent means.

 

As the dissent pointed out, the document used to establish the factual basis for the plea was an unrelated legal memorandum used to argue that the prosecution had failed to allege the commission of an actual crime.  This motion was written by the attorney, and was not an actual admission to the truth of the facts contained in the motion.  The dissent also noted that it was the defendant’s attorney that agreed to use the document as the factual basis, not the defendant himself.  Most importantly:

 

A “factual basis” sometimes consists of a defendant’s admission of what he did, but sometimes does not, as when the prosecutor states what he thinks he could prove, and defense counsel stipulates that the prosecutor could put on persuasive evidence to this effect. Defense counsel may have been saying, in effect, “my client is not ready personally to say this is what he did, but he is prepared to plead guilty because the prosecutor will be able to put on evidence that this is what he did.”[239]

The dissent correctly concluded that “tersely stipulat[ing] that the witness statement furnished a sufficient factual basis for the plea [is] not the same thing at all as a colloquy between judge and defendant in which what the witness said was confirmed by the defendant.”[240]  Finally, it is quite unfair to use a document the defendant agrees may be considered as the factual basis for the plea, which may be of little importance, as when the sentence is short or has already been served, for quite another purpose resulting in the often far more serious consequence of deportation.

 

[233] Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. July 16, 2004) (defendant’s factual admissions during plea hearing may be used to identify particular elements of divisible statute that form the offense of conviction); Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (admission by the defendant during plea hearing that weapon was a firearm); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (even though the rest of the record of conviction contained no reference identifying the particular drug involved, the defendant’s admission he possessed heroin, contained in the reporter’s transcript of the guilty plea hearing, was sufficient to establish that the drug possessed was proscribed by federal law), distinguishing Matter of Cassisi, 10 I. & N. Dec. 136 (BIA 1963).

[234] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1259 (Mar. 7, 2005) (“In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact; in pleaded cases, they would be the statement of factual basis for the charge 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.”).

[235] E.g., Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (where both parties to a guilty plea agree 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); United States v. Kiang, 175 F.Supp.2d 942, 950-951 (E.D.Mich. 2001) (“The sentencing transcript indicates that both parties concurred in the court’s proffer that it adopt the preliminary examination transcript . . . by reference in order to establish a factual basis for the sentencing proceeding.”).

[236] People v. Holmes, 9 Cal.Rptr.3d 678, 32 Cal.4th 432 (2004) (convictions are invalid since the court, at the time of the pleas, failed to establish a sufficient factual basis in support of the pleas, since it did not make any factual inquiry of the defendant, and did not identify any particular document as the source of the factual basis for the pleas).

[237] United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005).

[238] California Penal Code § 236.

[239] United States v. Hernandez-Hernandez, 431 F.3d 1212, 1224-1225 (9th Cir. Dec. 16, 2005) (Kleinfeld, J., dissenting).

[240] Id. at 1226 (Klienfeld, J., dissenting).

Third Circuit

RECORD OF CONVICTION - DOCUMENT INCLUDED - FACTUAL BASIS
Alaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (statute defining fraud offense aggravated felony, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), allows consideration of sentencing court's factual findings as articulated in presentence report to determine loss amount in determining whether conviction constitutes fraud offense aggravated felony), citing Shepard v. United States, 544 U.S. 13, 16 (2005) (allowing court to consider "any explicit factual findings by the trial judge")).

Fourth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " ALFORD PLEA FACTS DO NOT FORM PART OF RECORD OF CONVICTION
Salem v. Holder, ___ F.3d ___, ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Review of the record is restricted even further when ascertaining the nature of a conviction secured by Alford plea.), following United States v. Alston, 611 F.3d 219, 226 (4th Cir. July 2, 2010) ([A] prosecutors proffer of the factual basis for an Alford plea does not satisfy the requirements of the modified categorical approach.).

Fifth Circuit

RECORD OF CONVICTION - FACTUAL BASIS
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) (BIA did not abuse its discretion to consider facts in presentence report to establish loss to the victim exceeded $10,000, since reason for employing "modified categorical approach" did not fully obtain when tribunal subsequently examined, for collateral purposes, the amount of loss resulting from offense; and consideration of presentence report (PSR) in determining amount of loss was not abuse of discretion where the district court accepted the PSR into the record and the defendant did not object).

RECORD OF CONVICTION - FACTUAL BASIS
United States v. Lopez-DeLeon, __ F.3d __, 2008 WL 82521 (5th Cir. Jan. 9, 2008) (applying modified categorical analysis to find that California conviction of statutory rape, under Penal Code 261.5(c) was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a horrible decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count to make its determination that the offense was SAM.

RECORD OF CONVICTION - PRE-SENTENCE REPORT - FACTS ADMITTED TO CRIMINAL COURT IN ESTABLISHING FACTUAL BASIS FOR PLEA MAY BE USED
United States v. Martinez-Vega, __ F.3d __ (5th Cir. Nov. 29, 2006) (Texas conviction for sexual assault of a child under 17, in violation of Texas Penal Code 22.011, is a "crime of violence" as "sexual abuse of a minor" for illegal re-entry sentencing purposes, especially where noncitizen defendant admitted before criminal judge that all facts in PSR were correct [i.e. that he sexually abused his 14 year old daughter]). http://caselaw.lp.findlaw.com/data2/circs/5th/0541498cr0p.pdf

IMMIGRATION V. SENTENCING CONTEXTS - CATEGORICAL ANALYSIS - RECORD OF CONVICTION - DOCUMENTS INCLUDED - FACTUAL ADMISSIONS
United States v. Mendoza-Sanchez, ___ F.3d ___, 2006 WL 1966655 (5th Cir. Jul. 14, 2006) (Arkansas conviction of burglary, in violation of Ark.Code Ann. 5-39-201(a), constituted enumerated offense of "burglary of a dwelling," justifying application of sentencing guideline's 16-level crime of violence enhancement; although the record of conviction did not show burglary of a dwelling, defendant admitted to district court in illegal re-entry prosecution that offense was, in fact, burglary of a dwelling).

Eighth Circuit

RECORD OF CONVICTION - COMPLAINT - FACTUAL BASIS
Olmsted v. Holder, 588 F.3d 556 (8th Cir. Dec. 4, 2009) (finding Minnesota conviction of making terroristic threats, in violation of Minn. Stat. 609.713(1) was an aggravated felony crime of violence, applying the modified categorical approach; court was allowed to examine the complaint as it was stipulated to contain the factual basis of the plea).

NOTE: the complaint in this case was apparently very detailed, and the court mined those facts to (essentially) infer from the actions described in the complaint that the defendant could not have committed those acts with reckless intent.

Ninth Circuit

RECORD OF CONVICTION - POLICE REPORTS - COURT MAY CONSIDER POLICE REPORTS IN MODIFIED CATEGORICAL ANALYSIS WHERE DEFENDANT AGREES COURT MAY REVIEW POLICE REPORTS TO ASCERTAIN FACTUAL BASIS FOR PLEA
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (noncitizen's "decision to incorporate the police report into his guilty plea made the report "an explicit statement in which the factual basis for the plea was confirmed by the defendant." Thus, in this circumstance, "relying upon the [police report] to establish the elements of the crime" of conviction "does not undermine the purposes of our limited modified categorical inquiry."), citing Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)(police reports may be considered "if specifically incorporated into the guilty plea or admitted by a defendant.").

Lower Courts of Ninth Circuit

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS " RECORD OF CONVICTION " FACTUAL BASIS FOR PLEA
United States v. Sahagun-Gallegos, ___ F.3d ___, ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (grand jury transcript and defense counsels statement of factual basis for the plea could not be considered to establish that plea was to aggravated felony portion of a divisible statute, since both this court and the Supreme Court have held that the factual basis for a plea must be assented to by the defendant for a sentencing court to rely on it when conducting the modified categorical approach, see Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Alvarado, 759 F.3d at 1132, and there is no indication in the plea hearing transcript that Sahagun"Gallegos assented to the factual basis provided by his attorney, much less to the police detective's grand jury testimony.).

CAL POST CON - GROUNDS - FACTUAL BASIS
People v. Coulter, 163 Cal.App.4th 1117 (Jun. 10, 2008) (possible, in some cases, for trial court, with express or implied consent of the defendant, to put the issue of factual basis for a guilty plea over to the sentencing hearing).

Other

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.