The courts can look to the documents that make up the “record of conviction” only after the statute of conviction has been found by the court to be divisible.[1]  (The Seventh Circuit held the record of conviction limitation does not apply in the CMT context.  See § 6.2(B), supra.)

 

            Two United States Supreme Court cases generally describe the documents that make up the record of conviction.  In United States v. Taylor, the court considered the record of conviction, in the context of a jury trial, as including the “indictment or information and jury instructions.”[2]   In United States v. Shepard, the court described the record created through a guilty plea as “the charging document, the terms of a [written] plea agreement or transcript of colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”[3]  The court described these documents as those that would allow a later court to tell whether the conviction “necessarily” rested on a fact that must be proven (i.e., an element) to trigger the sentence enhancement or ground of removal.[4]

 

            The record of conviction may also be consulted where a question of sentencing may affect deportability or inadmissibility on account of a conviction.  Examples of this would include sentence imposed,[126] and maximum possible sentence.[127]  The question of sentence, however, is distinct from the question of the nature of the offense of conviction.  Therefore, decisions allowing resort to the record of conviction for sentence do not undermine the rule that the record of conviction may be consulted, to determine the nature of the offense, only where the statute of conviction is divisible and it is not otherwise possible to determine which offense within a divisible statute is the offense of conviction.

 

            A number of cases have more specifically described what documents are, and are not, included in the record of conviction.  See § § 7.11-7.12, infra.  The courts cannot look beyond the record of conviction.  See § 7.8, infra.  Even where the courts are allowed to look to the record of conviction, they are still required to apply a categorical analysis,[7] and cannot look to underlying facts not necessary to convict.  See § 7.9, infra.

[128] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  See § § 7.1-7.6, supra.

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

[130] United States v. Shepard, 544 U.S. 13, 125 S.Ct. 1254, 1262 (Mar. 7, 2005).  Prior to this case, it was well accepted that the Taylor analysis applied equally to guilty pleas.  United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir. Aug. 12, 2001); United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir. 1997).

[131] Id. at 1260.

[132] See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[126] See, e.g., INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (“punishable by imprisonment for a term of 5 years or more”).  See also Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).

[127] See § § 16.3-16.7, supra.

First Circuit

CONVICTION " NATURE OF CONVICTION -- CATEGORICAL ANALYSIS " DIVISIBILITY " INCONCLUSIVE RECORD " MINIMUM CONDUCT
Villanueva v. Holder, 784 F.3d 51, 54 (1st Cir. Apr. 24, 2015) (If those documents are inconclusive, then we must discard the modified categorical approach and determine whether all of the alternative means of committing the predicate crime fit within the federal definition of the generic offense.).