Aggravated Felonies

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).