Criminal Defense of Immigrants


§ 8.57 i. Guilty Plea

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The entry of a guilty plea satisfies one of the statutory elements of conviction for immigration purposes.[125]  See § 7.18, supra.[126]


The defendant’s plea is included in the record of conviction. See § 16.27, infra.[127]  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).”[128]  The transcript of the plea hearing constitutes part of the record of conviction.[129]  The stipulated factual basis upon which the plea is based may also be considered as part of the record of conviction.[130]


                Typically, there will be a description during the plea hearing of the offense to which a plea is being entered, and that description, coupled with the words of the plea the defendant enters, form part of the record of conviction identifying the offense of conviction.


                If the defendant is asked how does s/he plead to the offense set out in Count I of the charging paper, and enters a plea of guilty “as charged in Count I,” then s/he will probably be taken as having admitted all of the allegations — factual as well as elements of the offense — contained in that count.[131]


                If s/he is asked to enter a plea to a violation of California Health & Safety Code § 11352, sale/transportation of heroin, as charged in Count I, it is a little more ambiguous.  Is s/he admitting merely a violation of the statute, or is s/he admitting all of the particular facts alleged in Count I?  If it is merely an admission of a violation of the statute, and the statute is divisible, then the defendant’s plea does not assist the immigration court to identify the particular offense, among the several contained in the divisible statute, of which he was convicted.[132]  Therefore, the plea will not be taken as admitting all of the facts contained in the charge, merely all of the elements of the offense of conviction.  In United States v. Parker,[133] the Ninth Circuit stated: “We have recognized that the Court’s main concern in Taylor was ensuring that the jury actually found all the requisite facts to render the offense a ‘violent felony.’”  It noted, however, that the jury’s verdict form “provide[d] no information regarding the facts found by the jury” and recited only that the jury had found the defendant guilty of violating the statute.[134]  The court concluded:

Without a verdict form verifying the jury’s findings of the truthfulness of all of the requisite charging allegations, the instructions are indispensable. In their absence, there can be no assurance that the facts that the government argues establish [the generic crime] were actually found by the jury. United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993).


The same analysis applies to the entry of a plea.  If the defendant’s plea specifies that s/he is admitting guilt of the offense “as charged in Count I,” then it can be taken as admitting all of the factual allegations of that charge.  If it merely enters a plea to a violation of the statute, it is insufficient to determine which offense, among the different offenses charged in the divisible statute of conviction, the defendant was admitting.[135]


                The defendant may retain considerable control over the plea that is entered.  For example, if a divisible statute penalizes sale of heroin (an aggravated felony and controlled substances offense), or transportation (a controlled substances offense, but not an aggravated felony),[136] or offer to sell (the equivalent of solicitation, which in the Ninth Circuit is neither an aggravated felony drug trafficking offense nor a controlled substances offense), and the charging paper charges in the disjunctive language of the statute, the defendant could state: “Your honor, I enter a plea to offering to sell, but not to sale or transportation.  You can find me guilty of violating the same statute, and impose the same sentence, but I am not pleading guilty to those other offenses.”  It is unlikely the prosecution would choose to take the case to trial over that difference, and the defendant would, at least in the Ninth Circuit, not have pleaded guilty to a removable offense.


                Even if the charging paper alleged (a) sale, and (b) transportation, and (c) offer to sell, the defendant could still attempt the plea outlined above to the safe haven portion of the divisible statute.


                Similarly, even if the court asks the defendant, “What is your plea to sale of heroin as alleged in Count I?”, the defendant could state: “Your Honor, I plead guilty to a violation of Health & Safety Code § 11352(a), in the words of the statute, but I do not plead guilty to all the allegations of Count I.”  Again, if the defendant is willing to go to trial over this difference, many prosecutors and courts would simply accept the defendant’s version of the plea since they can find him or her guilty of the same exact statutory violation and impose the same sentence.  A defendant can enter a guilty plea either (a) with, or (b) without a factual admission of guilt.  If the defendant enters a guilty plea without a factual admission of guilt, it is sometimes called an “Alford plea,” see § 8.59, infra, and immigration counsel can argue it should not be considered to prove the commission of the offense, by analogy to a no contest plea.  See § 8.58, infra.


[125] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[126] G. Herman, Plea Bargaining § § 10:03-10.04 (2d ed. 2004).

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

[128] Matter of S, 9 I. & N. Dec. 688, 696 (BIA 1962).

[129] 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”).

[130] United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (statement of facts stipulated during plea proceedings, and upon which the plea was entered, constituted part of the record of conviction and was sufficient to establish that the California felony false imprisonment conviction was a crime of violence).

[131] United States v. Alvarez, 972 F.2d 1000, 1005-06 (9th Cir. 1992) (per curiam) (modified categorical approach was satisfied by an information that alleged the requisite elements of the generic crime and a jury’s verdict form stating that it found the defendant guilty “as charged in the Information.”).

[132] See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).

[133] United States v. Parker, 5 F.3d 1322, 1327 (9th Cir. 1993).

[134] Parker, supra, 5 F.3d at 1327.

[135] Ibid.; Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19. 2004) (record of conviction insufficient to establish that the amount of the loss to the victim(s) was in excess of $10,000 for purposes of establishing the fraud offense aggravated felony as defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)).

[136] See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).