Crimes of Moral Turpitude

(E)

Plea and Plea Agreement.  The defendant’s plea is included in the record of conviction.[1]  Read together with the charge to which a plea is entered, the plea identifies the offense of conviction.  “[A] plea of guilty is a judicial admission of all of the elements of the crime and no proof is needed. ‘It is as conclusive as the verdict of a jury,’ says United States v. Swaggerty, 218 F.2d 875 (C.A. 7, 1955).”[2]  The transcript of the plea hearing also constitutes part of the record of conviction.[3]  The stipulated factual basis upon which the plea is based may also be considered part of the record of conviction.[4]

A signed plea agreement is likewise included in the record of conviction.[5]  The courts would likely treat any admissions a defendant makes in a plea agreement the same as an oral admission by the defendant during a plea colloquy or facts stipulated to as the factual basis for the plea.[6]  At least one circuit has found pleas taken pursuant to a post-plea deferred adjudication to be included as part of the record of conviction.[164]

[165] United States ex rel.  Zaffarano v. Corsi, 63 F.2d 757, 759 (2d Cir. 1933).

[166] Matter of S, 9 I. & N. Dec. 688, 696 (BIA 1962).  See also United States v. Broce, 488 U.S. 563, 570 (1988) (a plea of guilty is an admission that the defendant “committed the crime charged against him”) (internal quotation omitted); United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997) (“[A] guilty plea conclusively proves the factual allegations contained in the indictment.”)), citing United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987).

[167] Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (transcript of plea and sentence hearing is part of record of conviction); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (considering transcript from proceedings of arraignment in which noncitizen accepted guilty plea as part of “record of conviction”).

[168] See § 7.11(B), supra.

[169] United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction includes signed plea agreement admitting facts charged in information, including entry of a residence, so conviction under divisible burglary statute qualified as burglary for purposes of imposing a 16-level increase in base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003) for illegal re-entry sentence); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation, where the plea agreement – part of the record of conviction – sets the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[170] See § 7.11(B), supra.

[164] Gradiz v. Gonzales, 490 F.3d 1206, 1211 (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.").