(A)  Guilty as Charged.[270]    The nature of the conviction is limited to the elements of the offense to which a plea was entered or of which the jury verdict convicted the defendant.  In Taylor, the court stated that the reviewing courts would generally be limited only to a strict categorical approach, but could look beyond the mere fact of the conviction “in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.  For example, in a state whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction . . . .”[271]  In the situation the court describes, “entry of a building” was not strictly necessary in order to punish the defendant under the statute; however, the charges and jury instructions compelled the jury to find beyond a reasonable doubt that the defendant had entered a building in order to convict.  When looking beyond the statute of conviction into the record of conviction, this is just the type of information a reviewing court would hope to obtain, because it shows the exact set of elements of which the defendant was found guilty.

 

In United States v. Calderon-Pena,[272] the Fifth Circuit found that the Texas child endangerment conviction was not a crime of violence because the statute could be committed though an “act or omission” and did not necessarily require the “use of force.”  The charging document stated that the defendant had committed the offense “by striking a motor vehicle occupied by the Complainant with the Defendant’s motor vehicle.”[273]  The government argued that this language in the charge necessarily meant that Calderon-Pena had been convicted of a crime of violence.  In rejecting this argument, the court pointed out that “the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense, but rather satisfies the due process concerns relating to providing defendants with sufficient notice of the crime for which they have been charged.”[274]  The court also gave another example:

 

[S]uppose that an indictment charged a defendant with the crime of disturbing the peace (or even the crime of littering) and also specified that he committed the crime “by throwing a bottle at the victim’s head.” Under state law, the prosecution might be required to prove that the defendant indeed engaged in that charged conduct, but throwing a bottle at someone is not an element of the disturbing-the-peace statute (or of littering). It is, rather, one manner of violating the statute.[275]

  

While it could be argued that the language charging Calderon-Pena could have been used to determine whether he had pleaded guilty to a commission of the offense by an “act” rather than an “omission,” the court found that the statute has no element (or set of elements) requiring “use” of force.  The statute in question required that the defendant knowingly create a danger of bodily injury.  “As a matter of simple logic, the endangerment statute can—but need not—involve the application of physical force to the child’s person.”[276]  Therefore, applying the minimum conduct rule, the offense could not be found to be a categorical crime of violence.

In Li v. Ashcroft,[277] the Ninth Circuit held that a noncitizen convicted of several fraud offenses had not been convicted of an aggravated felony fraud offense[278] because the jury that convicted him had not been required to make a specific finding regarding the amount of loss to the victim.  The court reached this conclusion even though the counts in the indictment described invoices for more than $10,000, and the sentencing judge found by a preponderance of the evidence that the noncitizen was responsible for losses in excess of $10,000.[279]  Because the amount of loss to the victim was not found by the jury, the noncitizen had not been convicted of causing a loss in excess of $10,000, even if it was reflected elsewhere in the record.

 

The court distinguished this situation from another case in which the jury had found the defendant guilty “as charged in the information.”[280]  This suggests that if the court in Li had had access to a jury verdict finding that Li was guilty as charged in the information (which stated the loss), the court would have found him removable as an aggravated felon.[281]  Thus the court here seems to allow examination into facts that were required to convict in a particular case, even if those facts were not strictly necessary to convict under the statute or any portion of the statute.

 

In a concurring opinion, however, Judge Kozinski suggested that conviction under the statutes in question could never be found to trigger the aggravated felony ground because a specific loss to the victim is not an element that must be proven to convict under any of those statutes.[282]  Judge Kozinski suggested that the loss to the victim could only be found for aggravated felony purposes where the statute itself required a finding of loss to convict.[283]

                 The situation described in Taylor is arguably distinguishable from Li because entry into a building vs. automobile is an “elemental” fact that goes to what portion of a statute has been violated, while the amount of loss at issue in Li does not.  See § 16.7(D), supra.

 

In Vue v. INS,[284] the Eighth Circuit found that a noncitizen was deportable for having committed a firearms offense based upon a conviction for aggravated robbery with a deadly weapon.  The charging documents indicated that the deadly weapon involved in the robbery was a firearm.  The court rejected the noncitizen’s argument that the use of the firearm was a fact of the case, rather than an element of the offense.  The court rejected the argument that because the convicting court only needed to determine that the robbery involved a “deadly weapon,” and not specifically a firearm, that the existence of a firearm was a fact indicated in the indictment that could not be considered by the immigration authorities to establish removal for a firearms conviction.[285]  Rather, the court chose to read the ground of deportation as, essentially, requiring an “extra element” inquiry:[286] “We read [the statute][287] to require that, in order for an offense to come within the meaning of this subsection, the use, etc., of a weapon must be an essential element within the definition of the offense of conviction and the weapon in question must [in fact] be a firearm or destructive device.”

 

In Gattem v. Gonzalez,[288] the Seventh Circuit found that an Illinois conviction for solicitation of a sexual act was a sexual abuse of a minor aggravated felony,[289] although the statute itself did not have any age requirements in order to convict, because the charge to which Gattem pleaded guilty stated that he had offered “a juvenile under 18, and a person not his spouse, free cigarettes in exchange for sex . . . .”[290]  The Seventh Circuit did not explicitly state that Gattem had entered his plea as charged (although it did note that he had admitted that the victim was a minor before the immigration authorities).  This case should not be read as treating the age of the victim as an “extra element”[291] for purposes of the sexual abuse of a minor aggravated felony category, because the Seventh Circuit did not engage in any discussion of this issue.

[270] See also § 16.23, infra, for more discussion of this topic.

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

[272] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (court can look to charging papers for the limited purpose of determining which set of a series of disjunctive elements in the statute the defendant’s conviction satisfied).

[273] Id. at 256.

[274] Id. at 258.

[275] Id. at 257 n.4.

[276] Id. at 260.

[277] Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004).

[278] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (fraud or deceit with a loss to the victim in excess of $10,000).

[279] The court left open the question of whether the court could consider sentencing facts found by the jury or admitted by the defendant. Li v. Ashcroft, 389 F.3d at 898.

[280] Li v. Ashcroft, 389 F.3d at 897-898 (comparing United States v. Alvarez, 972 F.3d 1000 (9th Cir. 1992)).

[281] The Ninth Circuit would find that the conviction was not an aggravated felony fraud offense if the defendant had been specifically convicted of a loss of less than $10,000.  See Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction for bank fraud not an aggravated felony fraud offense where the plea agreement specified an exact loss that was less than $10,000).

[282] Li v. Ashcroft, 389 F.3d at 899 (Kozinski, J., concurring).  See also Obashohan v. United States Att’y Gen., 479 F.3d 785 (11th Cir. Feb. 23, 2007).

[283] Here it might be suggested that the Third Circuit’s “extra element” method of analysis, in Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004), is arguably superior because it allows the courts to reach beyond the elements of the statute in the limited circumstance where such analysis appears to be demanded by Congress in the language of the removal ground (e.g., aggravated felony fraud), but keeps intact the rule that the courts cannot look to the underlying facts (or post-guilt findings made by the sentencing court) in any other case.  On the other hand, the analytical method in Li protects the mandate that the noncitizen must have been convicted of the offense (i.e., found guilty beyond a reasonable doubt), which is not necessarily true under Singh’s extra element analysis, since, for example, a sentencing court may have found the loss to the victim only by a preponderance of the evidence.  See Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. Nov. 19, 2004).  Unfortunately, the methods applied by other circuits often break both rules.  E.g., Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006).  See § 16.7, supra.

[284] Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996).

[285] Compare Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington statute for assault in the third degree did not constitute a firearms conviction since, regardless of the underlying facts, the assault statute did not require, as an element, the use of a firearm).

[286] See § 16.18, supra.

[287] Former INA § 241(a)(2)(C), now at INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[288] Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005).  See also Sharashidze v. Gonzales, 480 F.3d 566, (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), because the offense in fact involved a minor).

[289] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[290] Gattem v. Gonzalez, 412 F.3d at 761.

[291] See § 16.18, supra.

Second Circuit

CONVICTION " MODIFIED CATEGORICAL ANALYSIS " FACTS VS ELEMENTS
Flores v. Holder, ___ F.3d ___, ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (BIA erred by consulting the record of conviction to determine that Flores's underlying conduct"the touching of his hand to the genital area of th[e] victim"satisfied the generic definition of sexual abuse of a minor under 18 U.S.C. 3509(a). . . . The agency was instead required to consider whether the minimum conduct necessary to violate N.Y. Penal Law 130.65(3) was encompassed within 18 U.S.C. 3509(a)'s definition of sexual abuse.); see Ming Lam Sui v. INS, 250 F.3d 105, 117"18 (2d Cir. 2001) (noting that reviewing court cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes (internal quotation marks omitted)). The court noted: This error was not harmless because N.Y. Penal Law 130.65 criminalizes sexual contact, and we have observed that it is by no means clear that admitting to sexual contact with a minor under New York law would be enough to establish sexual abuse of a minor under the INA. James, 522 F.3d at 258 (emphasis in original). Accordingly, we vacate the agency's aggravated felony determination and remand for proper application of the modified categorical approach. See Gonzales v. Thomas, 547 U.S. 183, 186"87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (observing that agency should be given opportunity, in first instance, to make legal determinations entrusted to it by Congress). (Id. at ___.)

Ninth Circuit

CONVICTION " NATURE OF CONVICTION
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 a post-conviction, independent examination of the facts forming the basis of a prior conviction; Taylor requires the avoidance of subsequent evidentiary enquiries into the factual basis for the earlier conviction.).

RECORD OF CONVICTION - FACTS VS. ELEMENTS
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) (where California Penal Code 459 does not require proof beyond a reasonable doubt that the burglary arose from an "unlawful" entry into a building, the "unlawful" language in the charging document is not an element of the offense, but rather a fact that the defendant has admitted to in taking the plea; because this fact was specifically admitted by the defendant at plea, it may be used as part of the record of conviction under the modified categorical analysis to determine that the defendant admitted committing a "generic" burglary offense by making an "unlawful" entry).

Lower Courts of Ninth Circuit

CONVICTION " NATURE OF CONVICTION -- MODIFIED CATEGORICAL ANALYSIS " RECORD OF CONVICTION " FACTUAL BASIS FOR PLEA
United States v. Sahagun-Gallegos, ___ F.3d ___, ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (When conducting the modified categorical approach, we may not examine a transcript to try to discern what ... a plea proceeding revealed[ ] about the defendant's underlying conduct. Descamps, 133 S.Ct. at 2288. Rather, we are limited to assessing whether the defendant necessarily admitted the elements of the particular statutory alternative that is a categorical match to the generic federal offense. See id. at 2284 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254).).