Aggravated Felonies

The judgment and sentence are included in the record of conviction.[241]  The abstract of judgment, generally prepared by a clerk of the court, may be used to identify the charge or “count” to which a plea was entered.[242] 

However, a clerk’s description of an offense in an abstract of judgment is not by itself sufficient to establish which offense in a divisible statute was the offense of conviction.[243]  The courts also may not depend only upon a label indicated in an abstract of judgment in determining whether a conviction falls within the ground of deportation.[244]

[241] United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).

[242] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).

[243] United States v. Gutierrez-Ramirez, 405 F.3d 352 (9th Cir. Apr. 5, 2005) (illegal re-entry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code § 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition); United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (judgment of conviction and charging documents alone insufficient in jury trial to show noncitizen was convicted of aggravated felony portion of a divisible Nevada child abuse statute; jury instructions and/or verdict required to show elements of which noncitizen was found guilty); United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. May 5, 2004) (California conviction of violating Health & Safety Code § 11397(a) did not constitute an aggravated felony for purposes of enhancement of illegal re-entry sentence pursuant to U.S.S.G. § 2K1.2(b)(1)(A)(i), since the charge of conviction was in the disjunctive language of the statute, and the label of the offense in the abstract of judgment was not admissible to narrow the offense).

[244] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal).  But see Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. May 5, 2003) (federal conviction of offense of manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), constituted an illicit-trafficking “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), as determined by the label in the judgment despite references to accessory after the fact under 18 U.S.C. § 3, for purposes of determining whether Court of Appeals had jurisdiction to review removal order).