CONVICTION - FINALITY - STATUTORY INTERPRETATION - CONGRESS DID NOT OVERRULE PRIOR CASE LAW BY SILENCE IN NEW LEGISLATION
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it).

"Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).

"This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGES United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction).

NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.").

The court based its reasoning on the following analysis:

In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) ("By pleading guilty as charged [to an information worded in the conjunctive, charging, "robbery by means of force and fear"], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.") (emphasis added). Thus, "a plea of guilty means guilty as charged in the information, and by it all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. " Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted).

Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).

United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

BIA