The defendant’s plea is included in the record of conviction.[249]  Read together with the charge to which a plea is entered, the plea identifies the offense of conviction.  “[A] plea of guilty is a judicial admission of all of the elements of the crime and no proof is needed. ‘It is as conclusive as the verdict of a jury,’ says United States v. Swaggerty, 218 F.2d 875 (C.A. 7, 1955).”[250]  The transcript of the plea hearing constitutes part of the record of conviction.[251]  The stipulated factual basis upon which the plea is based may also be considered as part of the record of conviction.[252]

 

            A signed plea agreement is likewise included in the record of conviction.[253]  The courts would likely treat any admissions a defendant makes in a plea agreement the same as an oral admission by the defendant during a plea colloquy or a document stipulated to as the factual basis for the plea.[254] 

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

[250] Matter of S, 9 I. & N. Dec. 688, 696 (BIA 1962).  See also United States v. Broce, 488 U.S. 563, 570 (1988) (a plea of guilty is an admission that the defendant “committed the crime charged against him”) (internal quotation omitted); United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997) (“[A] guilty plea conclusively proves the factual allegations contained in the indictment.”)), citing United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987).

[251] Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (transcript of plea and sentence hearing is part of record of conviction); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (considering transcript from proceedings of arraignment in which noncitizen accepted guilty plea as part of “record of conviction”).

[252] See § 4.23, supra.

[253] United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction includes signed plea agreement admitting facts charged in information, including entry of a residence, so conviction under divisible burglary statute qualified as burglary for purposes of imposing a 16-level increase in base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003) for illegal re-entry sentence); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation, where the plea agreement – part of the record of conviction – sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[254] See § 4.23, supra.

Fifth Circuit

RECORD OF CONVICTION - PLEA
United States v. Moreno-Florean, 542 F.3d 445, 452-453 (5th Cir. Sept. 8, 2008) ("A guilty plea is "the legal equivalent of a verdict of guilty reached by a jury." See People v.Valladoli, 13 Cal.4th 590, 54 Cal.Rptr.2d 695, 918 P.2d 999, 1005 (1996). If a jury could have convicted Moreno-Florean of kidnapping under 207(a) without finding that he used physical force, then a judge could have found a factual basis for his guilty plea without finding that he used physical force. See Wallace, 16 Cal.Rptr.3d 96, 93 P.3d at 1043 (noting that a guilty plea in California "ordinarily includes an admission that there is a factual basis for the plea"). Moreno-Florean's guilty plea to the kidnapping count in his indictment, standing alone, does not compel a finding that he used physical force to perpetrate that crime. The statute of conviction cannot be narrowed through reference to the guilty plea and the abstract of judgment, so we must consider "whether the least culpable act constituting a violation of that statute constitutes kidnapping for purposes of U.S.S.G. 2L1.2." Gonzalez-Ramirez, 477 F.3d at 315-16. Because kidnapping under 207(a) can be accomplished without the use of physical force, we decline to uphold Moreno-Florean's sentence under the categorical approach. See Cervantes-Blanco, 504 F.3d at 579-80.").

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " INDICTMENT " DISMISSED COUNTS
Alvarado v. Holder, ___ F.3d ___, ___, 2014 WL 3608713 (9th Cir. Jul. 23, 2014) (the government may not rely on the reference to methamphetamine in [Count I of ] the indictment, because the plea agreement dismissed the original Count I, and provided the defendant would enter a plea only to Modified Count One: Attempted possession of a dangerous drugs [sic], which did not identify any specific substance).

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - PEOPLE V. WEST PLEA DOES NOT ESTABLISH ADMISSION OF FACTS
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a defendants nolo contendere plea pursuant to People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not establish factual guilt, and therefore, 'unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the factual predicate to support a determination that the conviction was generic."), citing United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) (en banc).

RECORD OF CONVICTION - REPORTER'S TRANSCRIPT GOVERNS INCONSISTENCY BETWEEN TRANSCRIPT AND CLERK'S MINUTES
United States v. Orlando, 553 F.3d 1235 (9th Cir. 2009) ("Where a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment, the terms of the oral pronouncement control. United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988).").

PLEA - ALFORD PLEA - COURT CAN STILL EVALUATE A POLICE REPORT UNDER THE MODIFIED CATEGORICAL APPROACH BECAUSE THE LEGAL IMPLICATIONS OF A GUILTY PLEA ARE THE SAME
Suazo Perez v. Mukasey, 512 F.3d 1222, n.4 (9th Cir. Jan. 22, 2008) ("That Suazo entered an Alford plea does not prevent us from evaluating the police report under the modified categorical approach."), citing United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006) ("Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in the context of the modified categorical approach under Taylor.").

RECORD OF CONVICTION - REPORTER'S TRANSCRIPT GOVERNS INCONSISTENCY BETWEEN TRANSCRIPT AND CLERK'S MINUTES
United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (oral pronouncement at sentencing hearing constituted legal sentence, not words reduced to writing in judgment and commitment order, and remand was necessary for evidentiary hearing to determine whether sentencing transcript was in error in stating that defendant's sentences were concurrent rather than consecutive), citing 28 U.S.C. 753(b) ("The transcript in any case certified by the reporter ... shall be deemed prima facie a correct statement of the testimony taken and proceedings had.").