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).

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT - DISTRICT COURT PROPERLY RELIED ON CALIFORNIA ABSTRACT OF JUDGMENT IN DETERMINING SENTENCE IMPOSED SINCE DOCUMENT UNEQUVOCALLY CONTAINED THE NECESSARY INFORMATION
United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

Fifth Circuit

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT
United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. Jul. 13, 2009) ("Because an 'abstract of judgment is generated by the [convicting] court's clerical staff, ... it is not an "explicit factual finding by the trial judge to which the defendant assented," which the court may consider under Shepard.' . . . We, therefore, may not rely on any information contained in the abstract of judgment when determining whether Castro-Guevarra's state conviction is an enumerated offense for enhancement purposes."), quoting United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005), in turn quoting Shepard v. United States, 544 U.S. 13, 15, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005).

Ninth Circuit

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - JUDGMENT MUST SHOW CONVICTION "AS CHARGED"
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain the critical phrase as charged in the Information. "), quoting United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (internal quotation omitted).

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("Because an abstract of judgment, like a minute order, is prepared by a neutral officer of the court, and because a defendant has the right to examine and challenge its content, Snellenberger, 548 F.3d 699, 2008 WL 4717190 at *2, we may rely on it when applying the modified categorical approach.").

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (even where DHS submits only the charging document and abstract of judgment as proof of the nature of the conviction, the judgment need not indicate that he was found guilty "as charged in the information" where the abstract of judgment "provides sufficient information to establish that he was convicted of each element of the generic federal crime, without reference to his charging document."), distinguishing United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc).

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT
Penuliar v. Mukasey, 523 F.3d 963 (9th Cir. Apr. 22, 2008) ("Similarly, the abstracts of judgment for both convictions, which simply recite that Penuliar pled guilty to 10851(a), cannot establish what facts Penuliar admitted in his guilty plea. See Vidal, 504 F.3d at 1087 ("In order to identify a [ 10851] conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain the critical phrase "as charged in the Information." "). Without a plea transcript or other evidence demonstrating the theory under which Penuliar pled guilty, we cannot find that Penuliar pled guilty to 10851(a) as a principal."), distinguishing Arteaga v. Mukasey, 511 F.3d 940, 947 (9th Cir. 2007) (without describing the record before it, this case distinguished Vidal because "applying the Taylor modified categorical approach to the facts here reveals that Arteaga was convicted of a theft offense.").

RECORD OF CONVICTION - ABSTRACT OF JUDGMENT - DISTRICT COURT PROPERLY RELIED ON CALIFORNIA ABSTRACT OF JUDGMENT IN DETERMINING SENTENCE IMPOSED SINCE DOCUMENT UNEQUVOCALLY CONTAINED THE NECESSARY INFORMATION
United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

SENTENCE - ORAL PRONOUNCEMENT GOVERNS OVER WRITTEN JUDGMENT
United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974) ("The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant."); See United States v. Villano, 816 F.2d 1448, 1451-52 & n.5 (10th Cir. 1987) (en banc) (the words pronounced by the judge at sentencing, not the words reduced to writing in the judge's Judgment/Commitment Order, constitutes the legal sentence).

Other

NATURE OF CONVICTION - RECORD OF CONVICTION - ABSTRACTS OF JUDGMENT - ARGUMENT ABSTRACTS ARE INSUFFICIENTLY RELIABLE
Abstracts of judgment cannot be relied upon in the modified categorical approach because they are insufficiently reliable non-judicial summaries of other documents. Under both Duenas-Alvarez and Shepard documents must be judicial in nature to be Shepard-type documents considered under the modified categorical approach. Judicial does not mean prepared by a judge- as Snellenberger noted they can be prepared by a clerk of court. Snellenberger, 548 F.3d at 702. But it does not follow that anything prepared by a clerk of court is thereby judicial in nature. Abstracts of judgment are one such document, that though prepared by a clerk are not judicial in nature and therefore cannot be considered in the modified categorical approach. Furthermore, abstracts of judgment are so often flawed that they fail to meet the high Shepard standard for document reliability.

Abstracts of judgment are insufficiently judicial in nature to be Shepard-type documents. In Duenas-Alvarez, the Supreme Court reiterated its position from Shepard that in addition to "the terms of a plea agreement, [and] the transcript of a colloquy between the judge and the defendant, [] some comparable judicial record of information about the factual basis for the plea" may be considered in the modified categorical approach. Duenas-Alvarez, 549 U.S. at 187 (citing to Shepard at 26) (emphasis added). As to abstracts, this Court had already noted that, "preparation of the abstract of criminal judgment in California is a clerical, not a judicial function." United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir. 2004).

While the court in Navidad-Marcos characterized this distinction in terms of a clerical/judicial dichotomy, its analysis is undisturbed by Snellenbergers favorable characterization of documents prepared by clerks of court. See Snellenberger, 548 F.3d at 702. Indeed, in People v. Rodriguez, the California case regarding abstracts of judgment to which this Court in Navidad-Marcos was citing for that proposition, no action by a clerk of court was even at issue. People v. Rodriguez, 152 Cal.App.3d 289, 299 (Cal.2nd 1984). There the clerical/judicial distinction was being drawn with regard to a judges own actions. Id. (discussing why a judge could not use a provision permitting changes to abstracts of judgment in light of clerical errors for the purpose of substantively altering it). An abstract of judgment is then "clerical" and not "judicial" in the sense that it does not require nor immediately record the action of a judge acting in that capacity. See A.R. at 130-31 (Mr. Garcias abstract of judgment, as an example of Judicial Council form CR-290, nowhere requires the signature of a judge). For this reason, a court "may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States." United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007).

As secondary sources, abstracts of judgment are insufficiently reliable for removal purposes. Abstracts of judgment have been consistently found unreliable for the purpose of identifying the nature of a conviction. California courts have frequently noted abstracts of judgment contain erroneous information and as such are not reliable. See, e.g., People v. Morelos, 168 Cal. App. 4th 758, 763 (Cal. Ct. App. 2008) (abstract incorrectly labeled the conviction as a felony instead of a misdemeanor); People v. Bradley, 47 Cal. Rptr. 3d 741, 762 (Cal. Ct. App. 2006) (abstract incorrectly labeled the offense, identifying "misappropriation" and "unauthorized loan" as "embezzlement"); People v. Martinez, 31 Cal. 4th 673, 704 (Cal. 2003) (abstract incorrectly labeled sentence as life without the possibility of parole instead of with the possibility of parole); People v. Prieto, 30 Cal. 4th 226, 277 (Cal. 2003) (same); People v. Grayson, 83 Cal. App. 4th 479, 481 (Cal. Ct. App. 2000) (abstract erroneously denominated false imprisonment conviction as a conviction for dissuading a witness); People v. Avila, 75 Cal. App. 4th 416 (1999) (abstract incorrectly noted the sentence imposed); People v. Thongvilay, 62 Cal. App. 4th 71, 77 (Cal. Ct. App. 1998) (abstract incorrectly labeled a second degree murder conviction as first degree murder); People v. Murillo, 47 Cal. App. 4th 1104, (Cal. Ct. App. 1996) (abstract incorrectly stated that the conviction was by plea instead of jury verdict); People v. Esquivel, 28 Cal. App. 4th 1386 (1994) (abstract incorrectly listed the applicable sentence term); People v. High, 119 Cal. App. 4th 1192 (2004) (abstract incorrectly identified statute of conviction); People v. Jackson, 128 Cal. App. 4th 1326, 1327 (2005) ("The parties have pointed out several clerical errors in the abstract of judgment, which we order corrected."); People v. Leung, 5 Cal. App. 4th 482 (1992) (abstract incorrectly stated the degree of conviction, showing first degree robbery instead of second-degree); People v. Olmsted, 84 Cal. App. 4th 270, 272 (2000) (abstract incorrectly identified consecutive sentences as concurrent); People v. Williams, 40 Cal. App. 4th 446 (1995) (abstract incorrectly calculated custody credits); People v. Rowland, 206 Cal. App. 3d 119 (1989) (abstract incorrectly ordered restitution); Rios v. Garcia, 390 F.3d 1082, 1083 (C.D. Cal. 2004) (abstract erroneously stated the offense as burglary instead of robbery). In the words of one California court, "The frequency with which records on appeal have come to us with [erroneous] abstracts of judgments indicates that trial courts would be well advised to remind their personnel that printed abstract of judgment forms must be used with caution." People v. Waters, 30 Cal.App.3d 354, 362 (Cal.3rd 1973). More recently, the Fifth Circuit went so far as to hold that "considering the low level of reliability associated with abstracts of judgment in California, we are satisfied they should not be added to the list of documents Shepard authorizes ." United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005).

Abstracts of judgment may establish the mere fact of a conviction, or the length of a sentence. See 8 U.S.C. 1229a(c)(3)(B), United States v. Valle-Montalbo, 474 F.3d 1197, 1199 (2007); see also Sandoval-Sandoval, 487 F.3d at 1278. However, they lack sufficient judicial imprimatur and are too prone to error to satisfy Shepards rigorous standard. For a person to be deportable the government must satisfy a high burden. Since Woodby v. INS, the Government must prove removability by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 286 (1966). Abstracts are simply too unreliable to be "unequivocal." Thanks to Holly Cooper.