Criminal Defense of Immigrants


§ 16.22 D. Documents Included

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The record of conviction includes “the charge (indictment[, complaint, information, citation, or other charge to which a plea or verdict was obtained]), plea, verdict and sentence.  The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted.”[296]  These and additional documents that have been specifically found to be part of the record of conviction are discussed below.  See § § 16.23-16.28, infra.  The record of conviction may also contain additional documents, that would not normally be considered part of the record of conviction, if those documents have been incorporated into the guilty plea or verdict.[297]

[296] Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).  Accord, Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (including indictment, plea, verdict, and sentence in “record of conviction”); Matter of Esfandiary, 16 I. & N. Dec. 659, 661 (BIA 1979) (including charge or indictment, plea, verdict, and sentence in “record of conviction”); Matter of Ghunaim, 15 I. & N. Dec. 269, 270 (BIA 1975) (including charge or indictment, plea, judgment or verdict, and sentence in “record of conviction”), holding modified by Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994); Matter of C, 5 I. & N. Dec. 65, 71 (BIA 1953).  See also Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979) (malicious trespass information charged intent to commit petty larceny).

[297] United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. Aug. 8, 2006) (California conviction for grand theft, in violation of Penal Code § 487(a), is an aggravated felony theft offense where the police report, incorporated into the criminal complaint by the court, upon stipulation of the parties and admission of the defendant in open court that the facts in the police report constituted the factual basis underlying the guilty plea, indicated that the theft involved personal property, rather than services); Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. July 11, 2005) (“Although police reports and complaint applications, standing alone, may not be used to enhance a sentence following a criminal conviction, Shepard, 125 S.Ct. at 1257, 1259-60, the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant. United States v. Smith, 390 F.3d 661, 664-65 (9th Cir. 2004) (approving use of “the factual basis for the charge, as set forth by the prosecutor at the change of plea hearing” to which “defense counsel did not object”); United States v. Lopez-Patino, 391 F.3d 1034, 1037-38 (9th Cir. 2004) (admissions the defendant made at his plea colloquy); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-1100 (9th Cir. 2004) (restitution order referenced in a plea agreement).”).



Ninth Circuit

Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (the record of conviction includes "only the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254. A comparable judicial record includes a document (such as a minute order) prepared by a neutral officer of the court, provided that the defendant has the right to examine the document and challenge its accuracy. See United States v. Snellenberger, 548 F.3d 699 (9th Cir. Oct. 28, 2008) (en banc) (per curiam)").
United States v. Snellenberger, 493 F.3d 1015, ___n.5, (9th Cir. Jul. 10, 2007) ("As the Supreme Court noted when ruling that complaints and police reports could not be considered, the defendant was never asked if the information contained in the reports was true or accurately reflected his plea. For the same reason, a minute order cannot establish the factual elements underlying a plea to a prior offense.")

Eleventh Circuit

United States v. Llanos-Agostadero, _486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) ("Generally, in determining whether a prior conviction is a qualifying offense for enhancement purposes, we apply a "categorical" approach-that is, we look no further than the fact of conviction and the statutory definition of the prior offense. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir.2006). But where the judgment of conviction and statute are ambiguous, "we remand for the district judge to look at the facts underlying a state conviction." Aguilar-Ortiz, 450 F.3d at 1273. In examining the facts underlying a prior conviction, the district court is generally limited to relying only on the "charging document[s], written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id.; Shepard v. United States, 544 U.S. 13, 19-26 125 S.Ct. 1254, 1259-63, 161 L.Ed.2d 205 (2005).").