Probation or presentence reports do not constitute part of the record of conviction.[279]  Even if the probation report has been adopted by the court as part of the judgment of conviction, however, factual statements contained in the report should not be considered as part of the record of conviction.  The facts contained in the probation report are frequently based on the police reports, and should no more be an appropriate part of the record of conviction than the police reports on which they are based.  Although a probation report may state the facts upon which the charge was based, there is no guarantee that the noncitizen pleaded guilty to those facts.[280]

One court has indicated that where the defendant makes no objection to the factual portion of the presentence report, his “acquiescence in the factual account presented in the PSR gives us the equivalent of a stipulation of facts.”[281]  Then, because he did not object to consideration of facts outside the “record of conviction” in characterizing the offense as an aggravated felony until the reply brief, which the court held to be too late, the court used those facts in the determination whether the conviction was for a deportable offense.  The law, however, is barren of any support for such an “implied stipulation,” especially where the defendant had no reason to believe the facts contained in the PSR could be used as an addition beyond the record of conviction in characterizing the nature of the offense.  One wonders whether the same court would conclude, if the prosecution did not object to facts in the PSR that were favorable to the defendant, such as that he committed the offense for the most laudable of motives, such as the desire to save the life of a son who needed an operation, that the prosecution had engaged in an implied stipulation that those facts could be used to form the conclusion that the defendant did not exhibit moral turpitude when committing the offense.

 

            While presentence reports may not be considered in divisible-statute analysis, courts have held that they may be examined in determining the existence of a conviction.[282]

 

[279] United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction excludes probation report); United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (district court not permitted to consider facts contained in presentence report in determining nature of prior offense of conviction in deciding whether the apply sentence enhancement for aggravated felony, because PSR facts are not explicit findings the Florida court made or used in adjudicating guilt); United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sentencing judge’s statement in transcript that he read and considered the probation report not sufficient to bring probation report within record of conviction, for purposes of assessing the elements of the offense of conviction to determine whether it constituted a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) for purposes of imposing a 16-level increase in the base offense level of an illegal re-entry sentence); United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir. Aug. 23, 2005); United States v. Garcia-Lopez, 410 F.3d 268 (5th Cir. May 18, 2005) (“[A] district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.”); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. Sept. 11, 2003); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (the report of a probation officer may not be considered in determining whether a crime involves moral turpitude).  Cf. United States v. Kovac, 367 F.3d 1116 (9th Cir. May 12, 2004) (hearsay statement attributed to defendant in state presentence report that describes conduct underlying prior criminal conviction is insufficient to designate defendant a career offender under U.S.S.G. § 4B1.1).

[280] Abreu-Reyes v. INS, 350 F.3d 966 (9th Cir. Nov. 21, 2003); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes); Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana); Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (petition for review granted, vacating the BIA decision ordering petitioner removed from the United States for having been convicted of an aggravated felony, because the Immigration Judge and the BIA improperly relied upon the narrative statement of facts contained in petitioner’s pre-sentence report in concluding that petitioner had been convicted of an aggravated felony); United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2001) (en banc) (“a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition.”).

[281] United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. 2002).

[282] See § 4.15, supra.

BIA

RECORD OF CONVICTION - PRESENTENCE REPORT
Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA Sept. 28, 2007) ("We conclude that restitution orders can be sufficient evidence of loss to the victim in certain cases, but they must be assessed with an eye to what losses are covered and to the burden of proof employed.")

First Circuit

RECORD OF CONVICTION - PRE-SENTENCE INVESTIGATION
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (documents listed at 8 C.F.R. 1003.41 are used to determine existence of conviction, not to determine under categorical analysis whether conviction triggers ground of removal; pre-sentence investigation is not part of the record of conviction for purposes of determining nature of conviction, only existence).

Fifth Circuit

RECORD OF CONVICTION - PROBATION REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) ("[A] conviction under 26 U.S.C. 7206(1) for filing a false tax return constitutes an aggravated felony for purposes of 8 U.S.C. 1101(a)(43)(M) if that offense involved a loss of $10,000 or more. ... The PSR could be considered under the circumstances presented here, particularly given that Arguelles-Olivares admitted in the underlying criminal proceedings that the amounts of loss reflected in the PSR were correct.").

For some unknown reason, ICE failed to include the plea agreement or plea colloquy in the Immigration Court record. ICE admitted the criminal information and judgment of conviction, but neither referred to a specific amount of loss. To establish that the amount of loss suffered by the government was greater than $10,000, the Immigration Judge admitted the Pre-Sentence Report prepared for the guilty plea over the petitioners objection. The PSR contained a chart stating losses in excess of $70,000, and a statement from the probation officer that the defendant had agreed to the amounts listed. The defendant/petitioner never objected to the PSR or any of its factual representations.

On appeal to the BIA, and before the Fifth Circuit, the petitioner argued that reference to the PSR violated the Taylor-Shepherd "modified categorical approach" (which limits the documents a subsequent court can consider when evaluating whether a prior conviction establishes the predicate for a collateral consequence). The Fifth Circuit had previously applied Taylor-Shepherd when evaluating whether prior convictions established removability, and in criminal and sentencing cases had rejected government attempts to bring PSRs within Taylor-Shepherds scope. However, in Arguelles-Olivares, the panel held that the policies behind the modified categorical approach did not fully justify its application when considering the amount of loss to the victim under (43)(M). The court felt it was permissible to consult the PSR even though that document would not be the type normally permitted by Taylor-Shepherd. Apparently "amount of loss" from a fraud conviction for purposes of removal is sui generis.

In a related sub-issue, but one which might inspire a separate amicus, the panel held that the Immigration Court could admit and rely on the PSR, even though the government never moved to unseal any portion of the report. Given the confidential nature of PSRs, this would be improper procedure, but the Fifth Circuit panel stated that Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the governments interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. Slip op. at 16.

DISSENT: "In my opinion, the majority incorrectly decides two important res nova immigration law issues. First, the majority joins the less meritorious side of a circuit split, giving no weight whatever to the INAs designation of tax evasion as the sole tax offense explicitly named as an "aggravated felony"; the majority does not even attempt to explain away the sharp clash between its alien- hostile statutory construction and the traditional principle of construing uncertain statutes in favor of aliens. Second, and more grievous, the majority refuses to follow our circuit precedents that have consistently applied the Supreme Courts Taylor-Shepard "modified categorical approach" in removal cases; instead, it approves the BIAs looking outside the record of the aliens conviction to find an aggravated felony based upon a paper trial of underlying facts contained in his PSR. In so doing, the majority creates a circuit split from the four circuits unanimously holding such use of PSRs is improper under the Taylor-Shepard modified categorical approach; and it disregards the numerous decisions of our own prior panels consistently applying the Taylor-Shepard methodology in sentencing cases. The majoritys second decision is particularly unfortunate because it exposes aliens in this Circuit to the potential of unfair practices, inequality of justice, and deportations based on constructive paper trials without juries rather than on records of judicial convictions."

RECORD OF CONVICTION - PROBATION REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 5, 2009) (immigration judge properly considered presentence report to establish loss to victim in excess of $10,000, in finding federal conviction of knowingly filing a false tax return, in violation of 26 U.S.C. 7206(1), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), with a loss to the victim in excess of $10,000, for purposes of triggering deportability, since this factor invites consideration of evidence outside the record of conviction of the traditional categorical analysis), following James v. Gonzales, 464 F.3d 505, 510-11 (5th Cir. 2006); accord, Singh v. Ashcroft, 383 F.3d 144, 159-61 (3d Cir. 2004).

RECORD OF CONVICTION - PROBATION REPORT - PRIVACY OBJECTION TO PRESENTENCE REPORT - SEEK ORDER FROM U.S. DISTRICT COURT TO PROTECT PRIVACY OF REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180 (5th Cir. April 22, 2008), revised opinion, (5th Cir. Feb. 2009) (rejecting privacy objection to use of federal presentence report to establish loss to victim over $10,000 for fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i): "[noncitizen] additionally asserts that the PSR is confidential and cannot be accessed without leave of court. Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the government's interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. There was no abuse of discretion in admitting the PSR.").

RECORD OF CONVICTION - LIMITATION TO RECORD OF CONVICTION - PRESENTENCE REPORTS
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).

Sixth Circuit

NATURE OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS - RECORD OF CONVICTION - PROBATION REPORT
United States v. Wynn, 579 F.3d 567 (6th Cir. Sept. 2, 2009) (presentence reports are not part of the record of conviction for determining the nature of an offense).

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED BATTERY
United States v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. Jun. 11, 2010) (Illinois conviction for aggravated battery, in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6), which includes any provoking physical contact with certain listed individuals, is not categorically an aggravated felony crime of violence, for illegal re-entry sentencing purposes; applying the modified categorical analysis; however, the charging documents show that respondent was convicted of the portion of the statute that involves use of force). NOTE: The analysis of the record in this case is very strange - the Government did not have a copy of the charging documents, only a statement made by the State to the probation officer that included a quote from the charging document. Counsel should argue that this round-about way of getting to the charging language is impermissible.

RECORD OF CONVICTION - PROBATION REPORT
United States v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. Jun. 11, 2010) (Illinois conviction for aggravated battery, in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6), which includes any provoking physical contact with certain listed individuals, is not categorically an aggravated felony crime of violence, for illegal re-entry sentencing purposes; applying the modified categorical analysis; however, the charging documents show that respondent was convicted of the portion of the statute that involves use of force). NOTE: The analysis of the record in this case is very strange - the Government did not have a copy of the charging documents, only a statement made by the State to the probation officer that included a quote from the charging document. Counsel should argue that this round-about way of getting to the charging language is impermissible.

Ninth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " DOCUMENTS EXCLUDED " PRESENTENCE REPORT
United States v. Castillo-Marin, 684 F.3d 914, *920 (9th Cir. Jul. 3, 2012) (Our precedent is clear that a district court may not rely on a PSR's factual description of a prior offense to determine whether the defendant was convicted of a crime of violence, notwithstanding the defendant's failure to object to the PSR. . . . Thus, to the extent the district court relied on the PSR's factual description of Castillo"Marin's prior offense to determine that Castillo"Marin had been convicted of a crime of violence, it plainly erred.); United States v. Corona"Sanchez, 291 F.3d 1201, 1212, 1214 (9th Cir.2002) (en banc) (A presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition, even though the defendant did not object to the PSR's recitation.) (citing United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir.2000); United States v. Potter, 895 F.2d 1231, 1237"38 (9th Cir.1990)); Gonzalez"Aparicio, 663 F.3d at 432"33 (observing that a sentencing court may not turn to the PSR for a narrative description of the underlying facts of the prior conviction, notwithstanding that the defense made no objections to the PSR); see also United States v. Chavaria"Angel, 323 F.3d 1172, 1176 (9th Cir.2003) (observing that in this circuit, district courts may not rely exclusively on ... the pre-sentence report as evidence of a prior conviction).").

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION "PRESENTENCE REPORT
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (in using the modified categorical analysis to determine whether a state conviction falls within a generic federal definition of a conviction, the court cannot consider an uncontroverted presentence report); United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (it is inappropriate to use a presentence report to determine the type or character of the conviction.) (emphasis in original); United States v. Corona"Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc) ([A] presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition.); United States v. Potter, 895 F.2d 1231, 1237"38 (9th Cir. 1990).

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (error was harmless in using presentence report to determine that violation of Arizonal Revised Statutes 13-1405, sexual contact with a minor, was a statutory rape offense under the illegal re-entry sentencing guidelines where the portion of the PSR used referred to state documents used in court, rather than a factual narrative).

RECORD OF CONVICTION - PROBATION REPORT - COURT NEED NOT RULE ON EVIDENTIARY OBJECTIONS TO INFORMATION CONTAINED IN PROBATION REPORT
United States v. Stoterau, 524 F.3d 988 (9th Cir. Apr. 29, 2008) (Rule 32 of the Federal Rules of Criminal Procedure did not require district court to rule on defendant's objections to information contained in his PSR).

RECORD OF CONVICTION - PROBATION REPORT - COURT NEED NOT RULE ON EVIDENTIARY OBJECTIONS TO INFORMATION CONTAINED IN PROBATION REPORT
United States v. Stoterau, 524 F.3d 988 (9th Cir. Apr. 29, 2008) (Rule 32 of the Federal Rules of Criminal Procedure did not require district court to rule on defendant's objections to information contained in his PSR).

NATURE OF CONVICTION - RECORD OF CONVICTION - PROBATION REPORT
Penuliar v. Mukasey, 523 F.3d 963 (9th Cir. Apr. 22, 2008) ("Finally, insofar as the IJ relied on the probation report to establish that Penuliar pled guilty to a "crime of violence," he was in error. See, e.g., United States v. Vidal, 504 F.3d 1072, 1087 n.25 (9th Cir. 2007) (en banc) (citing United States v. Franklin, 235 F.3d 1165, 1171 (9th Cir. 2000)) (explaining that a presentence report, even when considered in conjunction with charging papers, is insufficient to establish what facts a defendant admitted in his plea).").

RECORD OF CONVICTION - SENTENCE - OBJECTIONS TO FACTS CONTAINED IN PRESENTENCE REPORT
United States v. Saeteurn, 504 F.3d 1175 (9th Cir. Oct. 15, 2007) (a sentencing judge is not required to resolve disputes regarding facts recited in a Presentence Investigation Report, when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison).