Criminal Defense of Immigrants
§ 16.28 6. Other Documents Included
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DIVISIBLE STATUTES - RECORD OF CONVICTION
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (immigration judge did not err in relying on (1) the "Conditions of Probation"; (2) the "Certificate of Disposition"; and (3) "rap sheets" together to find that respondent was convicted of particular subdivision [N.Y.P.L. 120.05(1)] of divisible statute).
RECORD OF CONVICTION - CONDITIONS OF PROBATION CONSTITUTE PART OF RECORD OF SENTENCE
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) (immigration judge did not err in relying on the "Conditions of Probation" to find that respondent was convicted of particular subdivision [N.Y.P.L. 120.05(1)] of divisible statute, since the Conditions of Probation, which was signed by a court official, clearly falls into the categories of "[a]n official record of ... sentence," as well as "[a]ny document or record prepared by, or under the direction of, the court in which the conviction was entered."), quoting 8 U.S.C. 1229a(c)(3)(B)(ii), (vi); cf. Dulal-Whiteway, 501 F.3d at 130 (concluding that a restitution order is a "record of sentence" within the meaning of 8 U.S.C. 1229a(c)(3)(B)(ii)).
RECORD OF CONVICTION - RAP SHEET MAY BE CONSIDERED AS PARTIAL EVIDENCE OF THE STATUTORY SUBDIVISION OF CONVICTION
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) ("However, Francis also held that an IJ may admit a rap sheet as partial evidence of such a conviction."), citing Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. 2006) (concluding that 8 U.S.C. 1229a(c)(3)(B) provides which documents "constitute conclusive proof of conviction" but does not prohibit the admission of a rap sheet as "some evidence of a criminal conviction").
RECORD OF CONVICTION - RAP SHEET MAY NOT BE CONSIDERED AS CONCLUSIVE EVIDENCE OF THE STATUTORY SUBDIVISION OF CONVICTION
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb.29, 2008) ("immigration judge "errs in relying on a rap sheet as conclusive proof that an alien has been convicted of a particular crime for the purpose of the alien's removal proceedings. . . . " [emphasis in original]), citing Francis v. Gonzales, 442 F.3d 131, 143 (2d Cir. 2006).
CONVICTION - RECORD OF CONVICTION - NEW YORK CERTIFICATE OF DISPOSITION
United States v. Bonilla, 524 F.3d 647 (5th Cir. Apr. 10, 2008) (sentencing court could rely on a New York "Certificate of Disposition" to identify the subsection of conviction, but here, it did not do so, so the evidence was insufficient to establish that the defendant was convicted under the portion of New York Penal Law 125.15 [(1) "recklessly causes the death of another" or (2) commits abortion or (3) intentionally aids a suicide] that qualified as "manslaughter" within the meaning of USSG 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement of illegal reentry sentence), citing United States v. Neri-Hernandes, 504 F.3d 587, 591-592 (5th Cir. 2007) (Certificate of Disposition specified subsection of conviction).
AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD DEGREE ASSAULT ON AN OFFICER AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESS INTENT CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States. v. Garcia-Longoria, ___ F.3d ___, 2016 WL 1658120 (8th Cir. Apr. 27, 2016) (Nebraska conviction for third-degree assaulting a police officer, in violation of Neb.Rev.St. 28"931(1) (intentionally, knowingly, or recklessly cause bodily injury to a police officer), was a crime of violence for purposes of the ACCA, because the presentence report, to which the defendant did not object, reflected a mens rea of intent); see United States v. Ossana, 638 F.3d 895, 900"03 & n. 6 (8th Cir. 2011) (at least in some circumstances, a crime involving a mens rea of mere recklessness does not qualify as a crime of violence); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012) (following Ossana), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (distinguishing Ossana ), cert. denied, __ S.Ct. __ (2016).
CONTROLLED SUBSTANCES " NATURE OF CONTROLLED SUBSTANCE " PAULUS DEFENSE NATURE OF CONVICTION " RECORD OF CONVICTION " CLERKS MINUTES OF SENTENCE
United States v. Benitez-De Los Santos, 650 F.3d 1157 (8th Cir. Aug. 18, 2011) (clerks minutes and abstract of judgment form part of the record of conviction, and are sufficient to establish that defendant pleaded guilty to specific count charged against him, for purposes of showing that controlled substance involved in the conviction was the one identified in the charge); following United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.2008) (en banc).
CATEGORICAL ANALYSIS " RECORD OF CONVICTION " CLERK'S MINUTES
United States v. Sanchez-Garcia, 642 F.3d 658, 2011 WL 2462958 (8th Cir. Jun. 22, 2011) (This court thus need not decide whether clerk minutes or violation minutes, alone, satisfy the burden of production. See Forrest, 611 F.3d at 913 (complaint, minute order, and judgment are sufficient evidence of conviction); cf. United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.2008) (holding that California clerk minutes are easily ... within the category of documents described.).).
NATURE OF CONVICTION " RECORD OF CONVICTION " MINUTE ORDER
Coronado v. Holder, ___ F.3d ___, 2014 WL 3537027 (9th Cir. Jul. 18, 2014) (Superseding amended opinion) (Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.); citing Cabantac v. Holder, 736 F.3d 787, 793"94 (9th Cir.2013) (per curiam).
RECORD OF CONVICTION " MINUTE ORDERS & ABSTRACT OF JUDGMENT
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (where the charging document specifies the drug as one listed in the CSA, and the abstract or minute order shows the defendant pleaded to that Count, Snellenberger applies and the defendant may be found to have pleaded to a controlled substances offense).
RECORD OF CONVICTION " INCLUDED DOCUMENTS " ABSTRACT OF JUDGMENT
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011) (abstract of judgment, as a document prepared by the court, is acceptable evidence to establish the crime a defendant was convicted of; suggesting that United States v. Navidad"Marcos, 367 F.3d 903 (9th Cir. 2004) (abstract of judgment insufficient to establish crime of conviction) was overruled by United States v. Snellenberger, 548 F.3d 699 (9th Cir.2008) (en banc)). Note: This decision speaks to the use of the abstract of judgment to identify the crime of conviction, not the nature of the conviction.
CATEGORICAL ANALYSIS -- RECORD OF CONVICTION - DOCKET SHEET
United States v. Strickland, ___ F.3d ___, 2010 WL 1529414 (9th Cir. Apr. 19, 2010) (en banc) (Maryland docket sheet, which Maryland law requires be prepared and maintained by a court clerk, and which defendant has a right to review and correct, is of sufficient reliability under Shepard and Snellenberger to establish that the Maryland offense was for sexual abuse of a child).
NATURE OF CONVICTION - RECORD OF CONVICTION
United States v. Strickland, 556 F.3d 1069 (9th Cir. Mar. 2, 2009) (post-conviction sex-offender registration documents, signed by defendant in presence of witnesses, constituted sufficient admission of facts to qualify as "judicially noticeable facts" that may be used in a modified categorical analysis to determine whether a Maryland child abuse conviction was under the portion of the statute that involved sexual abuse of a minor for purposes of enhancing the sentence for conviction of receipt of child pornography).
The government in this case merely offered an uncertified docket sheet which showed a guilty plea to child abuse and which stated that Strickland was "a child sex offender," and sex offender registration documents showing that Strickland had registered as a sexual offender based on the Maryland conviction.
This opinion appears wrongly decided on many levels, but may be used significantly to broaden the modified categorical inquiry. The case must be reconciled with Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003), Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004), and Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir. 2006). These cases hold that 1) the court can only consider the "judgment record" rather than the "administrative record," in the modified categorical approach; 2) that judicial admissions in subsequent proceedings cannot be considered; and 3) that conditions of the sentence, such as domestic violence counseling, generally cannot be used to determine the elements of the offense of conviction.
In light of these cases, which were never cited in Strickland, immigration counsel can argue that the case has very limited application - that reliance on the docket sheet and subsequent registration as a sex offender was only appropriate because in Maryland (and apparently most if not all other jurisdictions) a person cannot be required to register as a sex offender unless the offense meets the elements of a sexual offense. See Cain v. State, 386 Md. 320 (2005). In other words, Strickland's reliance on suspect documents and "admissions" in those documents is only allowed because the act of registering necessarily demonstrates that the individual actually pleaded guilty to a sex - as opposed to some other - offense.
RECORD OF CONVICTION - CLERK'S MINUTE ORDER MAY BE CONSIDERED IN DETERMINING WHICH COUNT WAS THE COUNT OF CONVICTION
United States v. Snellenberger, 548 F.3d 699 (9th Cir. Oct. 28, 2008) (per curiam) (en banc) (to determine the nature of a conviction, when applying the modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990), the reviewing court may consider a clerk's minute order that conforms to certain essential procedures as establishing a plea to Count I, as opposed to Count II), overruling United States v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006).
CATEGORICAL ANALYSIS - DOCUMENTS INCLUDED - DEFERRED IMPOSITION STIPULATION
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (Wyoming conviction under divisible statute assumed to penalize both possession or possession for sale of a controlled substance constituted a "drug trafficking crime," under 18 U.S.C. 924(c)(2), and thus an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because: "The order deferring imposition of Mr. Batrez Gradiz's sentence, which was signed by his attorney, is the functional equivalent of a plea agreement. It stipulates, among other things, that the defendant shall "reimburse the Washakie County Sheriff's Department in the amount of $280.00 for expenses (buy monies)." R. at 10. That language makes clear that the defendant's plea was not to mere possession, but to actual distribution. "Buy monies" refers to the money that the agents paid him when he sold them drugs.").