(F)

Other Documents Included.  Additional documents that have been found to be part of the record of conviction include:

 

            (1)  Bench Trial Findings.  The United States Supreme Court has held that, in the context of a bench trial, the findings of the judge are included in the record of conviction.[1]

 

            (2)  Clerk’s Certificate.  A certificate of the clerk of court also may be deemed part of the conviction record.[2]

 

            (3)  Conduct Based Sentence Enhancements.  The law on this issue is complicated, but counsel should assume that a conduct-based sentence enhancement will be included as part of the record of conviction.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 10.56-10.60 (4th Ed. 2007).

 

            (4)  Jury Instructions.  The United States Supreme Court has held that jury instructions are included in the record of conviction.[3]  As with all other documents, however, these instructions may be used only to narrow the possible elements to which the defendant was found guilty.[4]

 

            (5)  Statement by the Court.  In some cases, the statement of the court later clarifying the nature of the proceedings may be considered in determining the nature of the offense.[5] This includes a court’s statement at sentence.[6]

 

            (6)  Statement of the Prosecutor.  In some cases, the statement of the prosecutor later clarifying the nature of the proceedings may be considered in determining the nature of the offense.[7]

[171] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1259 (Mar. 7, 2005) (“In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal ruling of law and finding of fact;  in pleaded cases, they would be the statement of factual basis for the charge shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.”).

[172] Wadman v. INS, 329 F.2d 812, 813-814 (9th Cir. 1964) (receiving stolen goods).  But see Dashto v. INS, 59 F.3d 697, 701-702 (7th Cir. 1995) (reversing deportation order based on certificate of clerk of court as to criminal record).

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

[174] Ibid.  See also Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005); United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004).

[175] Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) (letters from trial judge and prosecutor, clarifying previous letter produced by respondent).  But see Velez-Lozano v. INS, 463 F.2d 1305, 150 App. D.C. 214 (D.C. Cir. 1972); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (opinion of sentencing judge irrelevant to CMT determination); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (a letter from the trial judge, giving his opinion that the offense arose out of a drunken brawl and did not involve moral turpitude, was not part of the record of conviction which the reviewing body could consider in determining the moral turpitude of the offense).

[176] Matter of Pataki, 15 I. & N. Dec. 324, 326 (BIA 1975); Matter of K, 4 I. & N. Dec. 490, 491 (BIA 1951) (immigration court may consider, as part of record of conviction in determining the nature of a conviction under a divisible statute, any statement of record made by the court in sentencing a defendant).

[177] Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) (letters from trial judge and prosecutor, clarifying previous letter produced by respondent).

BIA

RECORD OF CONVICTION - CHARGE - ORIGINAL CHARGE AT TIME OF PLEA COULD NOT BE CONSIDERED AS PART OF RECORD OF CONVICTION SINCE AGE OF VICTIM DID NOT APPEAR IN FINAL, BACK-DATED CHARGE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("We are mindful of the fact that the respondent entered his plea to a charge that clearly identified his victim as a child. The language of that charge may well have been significant because the Supreme Court has explained that "the details of a generically limited charging document" are generally sufficient "in any sort of case" to establish "whether the plea had necessarily rested on the fact identifying the [offense] as generic." Shepard v. United States, supra, at 21. Yet as all parties recognize, we are precluded from relying on the original charge because, after these proceedings commenced, the State prosecutor removed all traces of the victim's juvenile status from the amended information and then interposed the expurgated, back-dated charge into the conviction record.").

Third Circuit

RECORD OF CONVICTION - CHARGING PAPERS
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (rejecting Governments argument that court can look to complaint, later superseded by an information, to determine the nature of the conviction; "The Government is correct that the criminal information, as the relevant charging document, is an appropriate record to consider. However, a court applying the modified categorical approach may only consider the charging document to the extent that the petitioner was actually convicted of the charges. Cf. Steele v. Blackman, 236 F.3d 130, 136-37 (3d Cir.2001) (holding that to find that an alien was convicted of an aggravated felony "there must be a judicial determination beyond a reasonable doubt of every element of a felony or a constitutionally valid plea that encompasses each of those elements"); see also Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir.2006) (declining to consider the total loss amount stated in a multi-count indictment where Alaka pled guilty to only a single count with a lower loss amount).").

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).

RECORD OF CONVICTION - PLEA
United States v. Moreno-Florean, 542 F.3d 445, 452-453 (5th Cir. Sept. 8, 2008) ("A guilty plea is "the legal equivalent of a verdict of guilty reached by a jury." See People v.Valladoli, 13 Cal.4th 590, 54 Cal.Rptr.2d 695, 918 P.2d 999, 1005 (1996). If a jury could have convicted Moreno-Florean of kidnapping under 207(a) without finding that he used physical force, then a judge could have found a factual basis for his guilty plea without finding that he used physical force. See Wallace, 16 Cal.Rptr.3d 96, 93 P.3d at 1043 (noting that a guilty plea in California "ordinarily includes an admission that there is a factual basis for the plea"). Moreno-Florean's guilty plea to the kidnapping count in his indictment, standing alone, does not compel a finding that he used physical force to perpetrate that crime. The statute of conviction cannot be narrowed through reference to the guilty plea and the abstract of judgment, so we must consider "whether the least culpable act constituting a violation of that statute constitutes kidnapping for purposes of U.S.S.G. 2L1.2." Gonzalez-Ramirez, 477 F.3d at 315-16. Because kidnapping under 207(a) can be accomplished without the use of physical force, we decline to uphold Moreno-Florean's sentence under the categorical approach. See Cervantes-Blanco, 504 F.3d at 579-80.").

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).

Seventh Circuit

RECORD OF CONVICTION - CHARGING DOCUMENTS
Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir. Sept. 2, 2008) (complaint, indicating burglar of a vehicle with intent to commit theft, combined with clerks minutes showing entry of guilty plea, sufficient to find noncitizen had been convicted of aggravated felony attempted theft).

Eighth Circuit

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 " CHARGING DOCUMENT
United States v. Sanchez-Garcia, 642 F.3d 658, 2011 WL 2462958 (8th Cir. Jun. 22, 2011) (The charging document alone, however, does not prove Sanchez"Garcia's conviction because a charge is simply an accusation. It is not evidence of anything.); quoting United States v. Gammage, 580 F.3d 777, 779 (8th Cir.2009); see also United States v. Vasquez"Garcia, 449 F.3d 870, 873 (8th Cir.2006) (a charging document may sufficiently narrow an overinclusive statute when the fact of conviction is not contested).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " CHARGING DOCUMENTS " AS CHARGED LANGUAGE
Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. Oct. 10, 2014) (When a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment, that link must be clear and convincing. Put another way, where, as here, the government bears the burden of proof to show by clear and convincing evidence that the 11351 conviction is a predicate offense [citations omitted], the government must demonstrate that the abstract clearly and convincingly shows that Medina pleaded guilty to the element as alleged in the complaint.).

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " INDICTMENT " DISMISSED COUNTS
Alvarado v. Holder, ___ F.3d ___, ___, 2014 WL 3608713 (9th Cir. Jul. 23, 2014) (the government may not rely on the reference to methamphetamine in [Count I of ] the indictment, because the plea agreement dismissed the original Count I, and provided the defendant would enter a plea only to Modified Count One: Attempted possession of a dangerous drugs [sic], which did not identify any specific substance).

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).

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

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 - CATEGORICAL ANALYSIS
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a no contest plea to charges that merely restates the language of a statute that is not a categorical match cannot conclusively establish that a defendant admitted to conduct falling entirely within the generic federal definition of a crime."), citing United States v. Vidal, 504 F.3d 1072, 1088 (9th Cir. 2007) (en banc); United States v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir. 2005).

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).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - PEOPLE V. WEST PLEA DOES NOT ESTABLISH ADMISSION OF FACTS
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. Aug. 12, 2009) ("a defendants nolo contendere plea pursuant to People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not establish factual guilt, and therefore, 'unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the factual predicate to support a determination that the conviction was generic."), citing United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) (en banc).

RECORD OF CONVICTION
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (the record of conviction includes "only the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254. A comparable judicial record includes a document (such as a minute order) prepared by a neutral officer of the court, provided that the defendant has the right to examine the document and challenge its accuracy. See United States v. Snellenberger, 548 F.3d 699 (9th Cir. Oct. 28, 2008) (en banc) (per curiam)").

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 - REPORTER'S TRANSCRIPT GOVERNS INCONSISTENCY BETWEEN TRANSCRIPT AND CLERK'S MINUTES
United States v. Orlando, 553 F.3d 1235 (9th Cir. 2009) ("Where a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment, the terms of the oral pronouncement control. United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988).").

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).

RECORD OF CONVICTION - CHARGING DOCUMENT
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) (where California Penal Code 459 does not require proof beyond a reasonable doubt that the burglary arose from an "unlawful" entry into a building, the "unlawful" language in the charging document is not an element of the offense, but rather a fact that the defendant has admitted to in taking the plea; because this fact was specifically admitted by the defendant at plea, it may be used as part of the record of conviction under the modified categorical analysis to determine that the defendant admitted committing a "generic" burglary offense by making an "unlawful" entry).

RECORD OF CONVICTION - CHARGING DOCUMENTS - "AS CHARGED"
United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) ("In another recent en banc decision of our court, the defendant Vidal did not plead guilty "as charged." United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007). As a result, our en banc court had "no way of knowing what conduct Vidal admitted when he pled guilty to conduct that was not identical to that charged in Count One of the Complaint." Id. at 1088. Here, by contrast, the Certificate and Order of Magistrate establishes that Aguila-Montes was read the complaint and pleaded guilty to the offense charged in that document. We place no significance on the absence of the word "as" in the relevant language of the Certificate and Order of Magistrate. The Certificate states that the defendant pleaded guilty to the "following offense(s) charged in said complaint." Even though that Certificate does not use what the Vidal en banc court referred to as "the critical phrase as charged in the Information, " id. at 1087 (emphasis added), the Certificate specifically states that the charge in the complaint was read to Aguila-Montes and he pleaded guilty to it. That is sufficient.")

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.").

CATEGORICAL ANALYSIS - DIVISIBLE STATUTE - RECORD OF CONVICTION - GOVERNMENT MUST ESTABLISH THAT THE DEFENDANT PLEADED GUILTY "AS CHARGED" BEFORE THE CHARGE ESTABLISHES DEPORTABILITY
United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) ("In order 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." (internal quotation omitted)).

RECORD OF CONVICTION - REPORTER'S TRANSCRIPT GOVERNS INCONSISTENCY BETWEEN TRANSCRIPT AND CLERK'S MINUTES
United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (oral pronouncement at sentencing hearing constituted legal sentence, not words reduced to writing in judgment and commitment order, and remand was necessary for evidentiary hearing to determine whether sentencing transcript was in error in stating that defendant's sentences were concurrent rather than consecutive), citing 28 U.S.C. 753(b) ("The transcript in any case certified by the reporter ... shall be deemed prima facie a correct statement of the testimony taken and proceedings had.").

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).

Lower Courts of Ninth Circuit

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS " RECORD OF CONVICTION " FACTUAL BASIS FOR PLEA
United States v. Sahagun-Gallegos, ___ F.3d ___, ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (grand jury transcript and defense counsels statement of factual basis for the plea could not be considered to establish that plea was to aggravated felony portion of a divisible statute, since both this court and the Supreme Court have held that the factual basis for a plea must be assented to by the defendant for a sentencing court to rely on it when conducting the modified categorical approach, see Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Alvarado, 759 F.3d at 1132, and there is no indication in the plea hearing transcript that Sahagun"Gallegos assented to the factual basis provided by his attorney, much less to the police detective's grand jury testimony.).

Other

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.

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.