Criminal Defense of Immigrants

The judgment and sentence are included in the record of conviction.[320]  The abstract of judgment, generally prepared by a clerk of the court, may be used to identify the charge or “count” to which a plea was entered.[321] 

However, a clerk’s verbal description of an offense in an abstract of judgment is not by itself sufficient to establish which offense in a divisible statute was the offense of conviction.[322]  The courts also may not depend only upon a label indicated in an abstract of judgment in determining whether a conviction falls within the ground of deportation.[323]

[320] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).

[321] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).

[322] United States v. Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir. Apr. 5, 2005) (California conviction of sale or transportation under Penal Code § 11352(a) did not qualify as a drug trafficking conviction for purposes of enhancing a sentence for illegal re-entry, where the sole basis for determining whether the conviction fell under the drug trafficking portion of this divisible statute was the abstract of judgment, which is not a source upon which the court can “rely to conclude that this short phrase manifests a ‘conscious judicial narrowing of the charging document’ rather than a shorthand abbreviation of the statute of conviction. We therefore agree with the Ninth Circuit that courts cannot exclusively rely on such shorthand descriptions to justify sentence enhancements under the Guidelines.”); United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (judgment of conviction and charging documents alone insufficient in jury trial to show noncitizen was convicted of aggravated felony portion of a divisible Nevada child abuse statute; jury instructions and/or verdict required to show elements of which noncitizen was found guilty); United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. May 5, 2004) (California conviction of violating Health & Safety Code § 11397(a) did not constitute an aggravated felony for purposes of enhancement of illegal re-entry sentence pursuant to U.S.S.G. § 2K1.2(b)(1)(A)(i), since the charge of conviction was in the disjunctive language of the statute, and the label of the offense in the abstract of judgment was not admissible to narrow the offense).  See also People v. Zackery, 147 Cal.App.3d 380 (Jan. 1, 2007) (clerk erroneously included information in minutes and abstract of judgment that were not part of pronouncement of sentence, and court compounded error by sentencing defendant on a count for which he had not been convicted).

[323] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal).  But see Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. May 5, 2003) (federal conviction of offense of manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), constituted an illicit-trafficking “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), as determined by the label in the judgment despite references to accessory after the fact under 18 U.S.C. § 3, for purposes of determining whether Court of Appeals had jurisdiction to review removal order).