Criminal Defense of Immigrants

The courts can look to the documents that make up the “record of conviction” only after the statute of conviction has been found by the court to be divisible.[221]         

                Two United States Supreme Court cases generally describe the documents that make up the record of conviction.  In United States v. Taylor, the court considered the record of conviction, in the context of a jury trial, as including the “indictment or information and jury instructions.”[222]   In United States v. Shepard, the court described the record created through a guilty plea as “the charging document, the terms of a [written] plea agreement or transcript of colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”[223]  The court described these documents as those that would allow a later court to tell whether the conviction “necessarily” rested on a fact that must be proven (i.e., an element) to trigger the sentence enhancement or ground of removal.[224]

A number of cases have more specifically described what documents are, and are not, included in the record of conviction.  See § § 16.22-16.33, infra.  The courts cannot look beyond the record of conviction.  See § 16.17, infra.  Even where the courts are allowed to look to the record of conviction, they are still required to apply a categorical analysis,[225] and cannot look to underlying facts not necessary to convict.  See § 16.18, infra.

[221] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  See § § 16.9-16.14, supra.

[222] United States v. Taylor, 495 U.S. 575, 602 (1990).

[223] United States v. Shepard, 544 U.S. 13, 125 S.Ct. 1254, 1262 (Mar. 7, 2005).  Prior to this case, it was well accepted that the Taylor analysis applied equally to guilty pleas.  United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. Aug. 12, 2001); United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir. 1997).

[224] Id. at 1260.

[225] See § § 16.3-16.7, supra.