(C)

Probation and Presentence Reports.  In most circuits, probation or presentence reports do not constitute part of the record of conviction.[1]  Even if the probation report has been adopted by the court as part of the judgment of conviction, however, factual statements contained in the report should not be considered part of the record of conviction.  The facts contained in the probation report are frequently based on the police reports, and should no more be an appropriate part of the record of conviction than the police reports on which they are based.[2]  Although a probation report may state the facts upon which the charge was based, there is no guarantee that the noncitizen pleaded guilty to those facts.[3]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 10.17 (4th Ed. 2007), on neutralizing adverse immigration effects of probation report at sentence.

            One court has indicated that where the defendant makes no objection to the factual portion of the presentence report, his “acquiescence in the factual account presented in the PSR gives us the equivalent of a stipulation of facts.”[4]  Then, because he did not object to consideration of facts outside the “record of conviction” in characterizing the offense as an aggravated felony until the reply brief, which the court held to be too late, the court used those facts in the determination whether the conviction was for a deportable offense.  The law, however, is barren of any support for such an “implied stipulation,” especially where the defendant had no reason to believe the facts contained in the PSR could be used as an addition beyond the record of conviction in characterizing the nature of the offense.  One wonders whether the same court would conclude, if the prosecution did not object to facts in the PSR that were favorable to the defendant, such as that he committed the offense for the most laudable of motives, such as the desire to save the life of a son who needed an operation, that the prosecution had engaged in an implied stipulation that those facts could be used to form the conclusion that the defendant did not exhibit moral turpitude when committing the offense.

 

            While presentence reports may not be considered in determining the nature of the conviction, courts have held that they may be examined in determining the existence of a conviction.[5]

[198] United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction excludes probation report); United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (district court not permitted to consider facts contained in presentence report in determining nature of prior offense of conviction in deciding whether the apply sentence enhancement for aggravated felony, because PSR facts are not explicit findings the Florida court made or used in adjudicating guilt); United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sentencing judge’s statement in transcript that he read and considered the probation report not sufficient to bring probation report within record of conviction, for purposes of assessing the elements of the offense of conviction to determine whether it constituted a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) for purposes of imposing a 16-level increase in the base offense level of an illegal re-entry sentence); United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir. Aug. 23, 2005); United States v. Garcia-Lopez, 410 F.3d 268 (5th Cir. May 18, 2005) (“[A] district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.”); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. Sept. 11, 2003); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (the report of a probation officer may not be considered in determining whether a crime involves moral turpitude).  Cf. United States v. Kovac, 367 F.3d 1116 (9th Cir. May 12, 2004) (hearsay statement attributed to defendant in state presentence report that describes conduct underlying prior criminal conviction is insufficient to designate defendant a career offender under U.S.S.G. § 4B1.1).  Contra, Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008) (using PSR to determine that firearms licensing conviction, for violation of 18 U.S.C. § 924(a)(1)(A) was fraudulent).  See § 6.2(B), supra.

[199] Cf. United States v. Almazan-Becerra, 456 F.3d 949, 954-955 (9th Cir. Aug. 1, 2006) (police reports stipulated as factual basis for plea are not the functional equivalent of either a plea agreement or plea colloquy, since police reports “do not necessarily contain the defendant’s own account of the events, or a mutually agreed-upon statement of facts.”).

[200] Abreu-Reyes v. INS, 350 F.3d 966 (9th Cir. Nov. 21, 2003); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (statement concerning underlying facts of offense recounted in the PSR does not determine that these facts are those to which the defendant pleaded guilty; it is not what the person did but the crime of conviction that is decisive for immigration purposes); Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana); Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (petition for review granted, vacating the BIA decision ordering petitioner removed from the United States for having been convicted of an aggravated felony, because the Immigration Judge and the BIA improperly relied upon the narrative statement of facts contained in petitioner’s pre-sentence report in concluding that petitioner had been convicted of an aggravated felony); United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2001) (en banc) (“a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pleaded guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition.”).  See also United States v. Saeteurn, 504 F.3d 1175 (9th Cir. Oct. 15, 2007) (a sentencing judge is not required to resolve disputes regarding facts recited in a Presentence Investigation Report, when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison).

[201] United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. 2002).

[202] See § 7.7, supra.

BIA

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - RECORD OF CONVICTION - POLICE REPORTS - FACTUAL BASIS
Matter of Milian-Dubon, 25 I. & N. Dec. 197 (BIA Feb. 19, 2010) (California conviction of spousal battery, in violation of Penal Code 243(e)(1), constitutes a conviction of domestic violence, triggering deportability under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because: "In applying the modified categorical approach to assess an aliens conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings."). Note: This decision is deeply flawed in its application of the categorical analysis, and the question of whether a police report should be included in the record of conviction should never have been reached. California Penal Code 243(e)(1) punishes battery committed against certain persons. For purposes of this statute, battery is simply "any willful and unlawful use of force or violence upon the person of another." This definition is not a divisible statute. The California courts have found that the term "force or violence" is a term of art (much like "aggravated felony"): As used in the foregoing, the words "force" and "violence" are synonymous and mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry manner, is sufficient. It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable. The touching essential to a battery may be a touching of the person, of the person's clothing, or of something attached to or closely connected with the person. CALIFORNIA JURY INSTRUCTIONS--CRIMINAL 16.141 (2006). Thus, there was no divisible statute analysis to be had, and the immigration court should never have even bothered to examine the record of conviction. 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."). Rather, the decision should have applied the minimum conduct analysis to find that a conviction of violating Penal Code 237(e)(1) cannot be a crime of violence since the "full range of conduct" punishable under the statute does not necessarily involve use of force. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) ("[t]he crime defined by [California Penal Code 261.5(c)] qualifies as sexual abuse of a minor and hence an aggravated felony if and only if the full range of conduct covered by it falls within the meaning of that term.") (internal quotations and citation omitted).

RECORD OF CONVICTION - NO CONTACT ORDER - FAILURE TO CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF NATURE OF CONVICTION WHERE NO CONTACT ORDER MAY BE BASED ON PREPONDERANCE OF THE EVIDENCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington no contact order, contained in criminal case file, identifying the victim's date of birth, did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. . . . [A]lthough a "no-contact order" must bear a relationship to an offender's convicted offense, no direct causal link need be established between such an order and the crime committed. State v. Warren, 138 P.3d 1081, 1094 (Wash. Ct. App. 2006) (citing State v. Llamas-Villa, 836 P.2d 239 (Wash. Ct. App. 1992)). Thus, a no-contact order may be issued in Washington on the basis of facts that were not necessarily admitted by the defendant or proven beyond a reasonable doubt in order to establish the defendant's guilt with respect to the underlying crime.").

RECORD OF CONVICTION - MINUTE ORDER
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009).

NOTE: This decision withdraws a prior finding that a notation in an abstract or minute order could be used to identify the elements of the offense. This restores prior Ninth Circuit precedent. See, e.g., United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc). See ILRC practice advisory by Kathy Brady at: http://www.ilrc.org/immigration_law/pdf/Anaya_amended_practice%20advisory%201.27.pdf

First Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RECORDS OF APPEALS COURT DECISION
James v. Holder, 698 F.3d 24, *28 (1st Cir. Oct. 19, 2012) (Whether Shepard's reference to the records of the convicting court, 544 U.S. at 23, excludes records of an appeals court decision in the same case is an unresolved question. A Ninth Circuit decision may have thought that it did, Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir.2007), but Morales relied on BIA precedents and the BIA subsequently said Morales misread those precedents. See In re N"A"M", 24 I. & N. Dec. 336, 344 (B.I.A .2007).).

Third Circuit

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION " POLICE OFFICERS WRITTEN STATEMENT
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (police officers' written statements are therefore not part of the record of conviction that may be consulted as part of the modified categorical analysis).

RECORD OF CONVICTION - SENTENCING FACTS INSUFFICIENT
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) ("Further, we may not look to factual assertions in the judgment of sentence. Facts a judge considers in making a discretionary sentencing determination are not necessarily admitted by the defendant. Cf., Commonwealth v. Lane, 941 A.2d 34, 38 (2008). Accordingly, factual assertions contained only in a judgment of sentence may not be considered under the modified categorical approach."; "The judgment of sentence also was not an appropriate basis for determining the amount of marijuana involved in Evanson's offense for a related reason. 8 U.S.C. 1229a(c)(3)(A) requires that the Government prove removability by clear and convincing evidence. The amount recited in the judgment of sentence was not itself necessarily based on clear and convincing evidence.")

Fourth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS EVIDENCE DURING REMOVAL PROCEEDINGS
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

REMOVAL PROCEEDING " BURDEN OF PROOF " RELIEF
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

Fifth Circuit

REMOVAL PROCEEDINGS " EVIDENCE " SEALED PRESENTENCE REPORT
United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012) (affirming district court order releasing portions of the presentence report from a criminal case to DHS for use in removal proceedings, because the reasons for confidentiality can be outweighed when [as here] the moving party can show a compelling, particularized need for disclosure to meet the ends of justice.); quoting United States v. Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). Note: Criminal defense counsel must therefore contest facts in the PSR that would prove damaging in later removal proceedings.

CONVICTION - NATURE OF CONVICTION - RECORD OF CONVICTION - POLICE REPORT
United States v. Gutierrez-Hernandez, __F.3d __ (5th Cir. Aug. 28, 2009) (police report could not be examined to determine if prior conviction involved sale of cocaine).

RECORD OF CONVICTION - PROBATION REPORT
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) ("[A] conviction under 26 U.S.C. 7206(1) for filing a false tax return constitutes an aggravated felony for purposes of 8 U.S.C. 1101(a)(43)(M) if that offense involved a loss of $10,000 or more. ... The PSR could be considered under the circumstances presented here, particularly given that Arguelles-Olivares admitted in the underlying criminal proceedings that the amounts of loss reflected in the PSR were correct.").

For some unknown reason, ICE failed to include the plea agreement or plea colloquy in the Immigration Court record. ICE admitted the criminal information and judgment of conviction, but neither referred to a specific amount of loss. To establish that the amount of loss suffered by the government was greater than $10,000, the Immigration Judge admitted the Pre-Sentence Report prepared for the guilty plea over the petitioners objection. The PSR contained a chart stating losses in excess of $70,000, and a statement from the probation officer that the defendant had agreed to the amounts listed. The defendant/petitioner never objected to the PSR or any of its factual representations.

On appeal to the BIA, and before the Fifth Circuit, the petitioner argued that reference to the PSR violated the Taylor-Shepherd "modified categorical approach" (which limits the documents a subsequent court can consider when evaluating whether a prior conviction establishes the predicate for a collateral consequence). The Fifth Circuit had previously applied Taylor-Shepherd when evaluating whether prior convictions established removability, and in criminal and sentencing cases had rejected government attempts to bring PSRs within Taylor-Shepherds scope. However, in Arguelles-Olivares, the panel held that the policies behind the modified categorical approach did not fully justify its application when considering the amount of loss to the victim under (43)(M). The court felt it was permissible to consult the PSR even though that document would not be the type normally permitted by Taylor-Shepherd. Apparently "amount of loss" from a fraud conviction for purposes of removal is sui generis.

In a related sub-issue, but one which might inspire a separate amicus, the panel held that the Immigration Court could admit and rely on the PSR, even though the government never moved to unseal any portion of the report. Given the confidential nature of PSRs, this would be improper procedure, but the Fifth Circuit panel stated that Arguelles-Olivares made no attempt during the immigration proceedings to seek an injunction or order from the district court to maintain the confidentiality of the PSR. He did not identify any provisions of the PSR that would jeopardize his own privacy or the governments interest in maintaining the trust of third-party witnesses by keeping the PSR confidential. Slip op. at 16.

DISSENT: "In my opinion, the majority incorrectly decides two important res nova immigration law issues. First, the majority joins the less meritorious side of a circuit split, giving no weight whatever to the INAs designation of tax evasion as the sole tax offense explicitly named as an "aggravated felony"; the majority does not even attempt to explain away the sharp clash between its alien- hostile statutory construction and the traditional principle of construing uncertain statutes in favor of aliens. Second, and more grievous, the majority refuses to follow our circuit precedents that have consistently applied the Supreme Courts Taylor-Shepard "modified categorical approach" in removal cases; instead, it approves the BIAs looking outside the record of the aliens conviction to find an aggravated felony based upon a paper trial of underlying facts contained in his PSR. In so doing, the majority creates a circuit split from the four circuits unanimously holding such use of PSRs is improper under the Taylor-Shepard modified categorical approach; and it disregards the numerous decisions of our own prior panels consistently applying the Taylor-Shepard methodology in sentencing cases. The majoritys second decision is particularly unfortunate because it exposes aliens in this Circuit to the potential of unfair practices, inequality of justice, and deportations based on constructive paper trials without juries rather than on records of judicial convictions."

RECORD OF CONVICTION - LIMITATION TO RECORD OF CONVICTION - PRESENTENCE REPORTS
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. Apr. 22, 2008) (BIA did not abuse its discretion to consider facts in presentence report to establish loss to the victim exceeded $10,000, since reason for employing "modified categorical approach" did not fully obtain when tribunal subsequently examined, for collateral purposes, the amount of loss resulting from offense; and consideration of presentence report (PSR) in determining amount of loss was not abuse of discretion where the district court accepted the PSR into the record and the defendant did not object).

CONVICTION - RECORD OF CONVICTION - DISMISSED COUNTS
United States v. Bonilla, 524 F.3d 647 (5th Cir. Apr. 10, 2008) (sentencing court could not rely on a charge of which the defendant was not convicted to identify the particular subdivision, within a divisible statute, of which the defendant was convicted), citing United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007); see United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007) (reaching same conclusion when defendant pleaded guilty to attempted kidnapping but indictment charged only aggravated kidnapping); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that, in the context of USSG 4B1.2, "a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted").

Sixth Circuit

NATURE OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS - RECORD OF CONVICTION - PROBATION REPORT
United States v. Wynn, 579 F.3d 567 (6th Cir. Sept. 2, 2009) (presentence reports are not part of the record of conviction for determining the nature of an offense).

RECORD OF CONVICTION - PRELIMINARY HEARING TRANSCRIPT
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) ("Even granting for the sake of argument that a sentencing court may consult a preliminary-examination transcript in investigating the nature of a prior offense, this transcript does not show that Medina-Almaguer "necessarily admitted" to a "drug trafficking offense" when he pleaded guilty to violating 11352(a). Much like a police report or a complaint application-upon which sentencing courts may not rely in determining the nature of a prior conviction, see Shepard, 544 U.S. at 16-a preliminary examination deals with a gateway step in the criminal process: determining whether probable cause exists for detaining a suspect before a potential indictment or information. . . . [T]hat testimony showed only that the examining magistrate properly concluded that there was "sufficient cause" to believe that Medina-Almaguer violated 11352(a). Medina-Almaguer did not admit that conduct during the examination, nor so far as the record shows did he admit that conduct when he pleaded guilty.").

NATURE OF OFFENSE - RECORD OF CONVICTION - AFFIDAVITS OF COMPLAINT
United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006) (sentencing court may rely on affidavits of complaint containing statements of fact "only" for "the limited inquiry of whether prior offenses constitute a single criminal episode or multiple episodes" for purposes of determining whether prior offenses qualify as "convictions [for crimes] ... committed on occasions different from one another" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1)); accord, United States v. Wells, 473 F.3d 640, 647 n. 5 (6th Cir.2007).

Seventh Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " PRESENTENCE REPORT
United States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. Oct. 13, 2010) (An unsubstantiated summary of an indictment in a presentence investigation report does not satisfy the Supreme Court's requirement of a judicial record and thus is not (unless its accuracy is unquestioned-an important qualification to which we'll return) a proper basis for classifying a defendant's prior crimes for purposes of federal sentencing.; The defendant's lawyer didn't question the accuracy of the summary in the presentence investigation report, even though she had access to the indictment; it is a public document, as we said. She could have gotten hold of a certified copy of the indictment and compared it with the summary in the presentence investigation report, just as the defendant's lawyer in Rodriguez-Gomez had done. Her failure to do so suggests fear of what she would find; and in any event, not having objected in the district court to the summary, she can prevail on appeal only by showing that the district judge committed a plain error (an error at once evident and prejudicial) in basing the sentence on the summary.).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED BATTERY
United States v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. Jun. 11, 2010) (Illinois conviction for aggravated battery, in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6), which includes any provoking physical contact with certain listed individuals, is not categorically an aggravated felony crime of violence, for illegal re-entry sentencing purposes; applying the modified categorical analysis; however, the charging documents show that respondent was convicted of the portion of the statute that involves use of force). NOTE: The analysis of the record in this case is very strange - the Government did not have a copy of the charging documents, only a statement made by the State to the probation officer that included a quote from the charging document. Counsel should argue that this round-about way of getting to the charging language is impermissible.

RECORD OF CONVICTION - PROBATION REPORT
United States v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. Jun. 11, 2010) (Illinois conviction for aggravated battery, in violation of 720 Ill. Comp. Stat. 5/12-4(b)(6), which includes any provoking physical contact with certain listed individuals, is not categorically an aggravated felony crime of violence, for illegal re-entry sentencing purposes; applying the modified categorical analysis; however, the charging documents show that respondent was convicted of the portion of the statute that involves use of force). NOTE: The analysis of the record in this case is very strange - the Government did not have a copy of the charging documents, only a statement made by the State to the probation officer that included a quote from the charging document. Counsel should argue that this round-about way of getting to the charging language is impermissible.

Eighth Circuit

RECORD OF CONVICTION - EXCLUDED DOCUMENTS - TESTIMONY
United States v. Reyes-Solano, 543 F.3d 474 (8th Cir. Sept. 26, 2008) (Mississippi convictions for domestic assault and assault on a police officer were not categorically "crimes of violence" (defined as including twelve enumerated offenses (none at issue in this case), "or any other federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), so as to justify a four-level sentence enhancement under USSG 2L1.2(b)(1)(E) for illegal reentry after deportation, because "Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under 2L1.2(b)(1)(E) was improperly imposed.")

Ninth Circuit

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

CONVICTION " RECORD OF CONVICTION " FACTUAL BASIS - AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Marcia-Acosta, ___ F.3d ___ (9th Cir. Mar. 24, 2015) (Arizona conviction of aggravated assault, in violation of Arizona Revised Statutes 13-1203 and 13-1204, was not a "crime of violence" for illegal re-entry sentencing purposes; district court erred in relying solely upon a statement by defense counsel during plea colloquy in determining elements to which the defendant entered his plea, since a sentencing court may not rely on an extraneous factual-basis statement details, standing alone, to supply the narrowing for purposes of the modified categorical approach).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION "TESTIMONY BEFORE IMMIGRATION JUDGE
Cervantes v. Holder, ___ F.3d ___, ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (an alien's description of his crimes is not an acceptable source of evidence under the modified categorical approach.); see Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1129 n. 7 (9th Cir. 2007) ([U]nder the modified categorical approach we may not consider ... testimony about the alien's criminal conduct.), abrogated on other grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir.2012) (en banc).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " RECORD OF CONVICTION DOES NOT INCLUDE DOCUMENTS RELATING TO DIFFERENT CONVICTION
Aguilar-Turcios v. Holder, 691F.3d 1025, *1037 (9th Cir. Aug. 15, 2012) (there is no legal precedent that allows a court, in its application of the modified categorical approach, to look beyond the record of conviction of the particular offense that the government alleges is an aggravated felony. . . . Aguilar-Turcios Article 92 and Article 134 convictions were for separate offenses that charged different conduct, and we are reluctant to conflate the two into one or allow one to seep into the other when applying the modified categorical approach.); accord, Jaggernauth v. Atty Gen., 432 F.3d 1346, 1355 (11th Cir. 2005).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " SIMILARITIES BETWEEN TWO CHARGES DO NOT ESTABLISH THAT EACH IS BASED ON SAME UNDERLYING FACTS
Aguilar-Turcios v. Holder, 691 F.3d 1025, *1039 (9th Cir. Aug. 15, 2012) (Because the two charges are worded differently, we cannot conclude that the two convictions necessarily rested on the same facts.)

NATURE OF CONVICTION " RECORD OF CONVICTION " DOCUMENTS EXCLUDED " PRESENTENCE REPORT
United States v. Castillo-Marin, 684 F.3d 914, *920 (9th Cir. Jul. 3, 2012) (Our precedent is clear that a district court may not rely on a PSR's factual description of a prior offense to determine whether the defendant was convicted of a crime of violence, notwithstanding the defendant's failure to object to the PSR. . . . Thus, to the extent the district court relied on the PSR's factual description of Castillo"Marin's prior offense to determine that Castillo"Marin had been convicted of a crime of violence, it plainly erred.); United States v. Corona"Sanchez, 291 F.3d 1201, 1212, 1214 (9th Cir.2002) (en banc) (A presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition, even though the defendant did not object to the PSR's recitation.) (citing United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir.2000); United States v. Potter, 895 F.2d 1231, 1237"38 (9th Cir.1990)); Gonzalez"Aparicio, 663 F.3d at 432"33 (observing that a sentencing court may not turn to the PSR for a narrative description of the underlying facts of the prior conviction, notwithstanding that the defense made no objections to the PSR); see also United States v. Chavaria"Angel, 323 F.3d 1172, 1176 (9th Cir.2003) (observing that in this circuit, district courts may not rely exclusively on ... the pre-sentence report as evidence of a prior conviction).").

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS TESTIMONY IN REMOVAL PROCEEDINGS
Pagayon v. Holder, ___ F.3d ___, 2011 WL 6091276 (9th Cir. Dec. 8, 2011) (per curiam), granting rehearing, withdrawing previous opinion, 642 F.3d 1226 (9th Cir.2011), and denying rehearing en banc ("Pagayons admission of the allegation that his drug offense involved methamphetamine was a pleading stage admission. By contrast, his admission that he was convicted of the crimes charged in the information offered by the government was an evidentiary stage admission. Under Perez-Mejia, the IJ could properly consider the former, but not the latter, in determining whether Pagayon was removable, because it is testimony made during the fact-finding evidentiary stage.). http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/07-74047.pdf

CONVICTION " RECORD OF CONVICTION " ADMISSIONS BY RESOPONDENT
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (When the modified categorical approach must be employed, an alien's factual admissions may not be used as evidence to establish that he is removable, unless those admissions are included in the narrow, specified set of documents that are part of the record of conviction, such as a plea agreement.); see S"Yong v. Holder, 600 F.3d 1028, 1035"36 (9th Cir.2010); Tokatly v. Ashcroft, 371 F.3d 613, 623"24 (9th Cir.2004); Huerta"Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003).

CONVICTION " NATURE OF CONVICTION " RECORD OF CONVICTION "PRESENTENCE REPORT
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (in using the modified categorical analysis to determine whether a state conviction falls within a generic federal definition of a conviction, the court cannot consider an uncontroverted presentence report); United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (it is inappropriate to use a presentence report to determine the type or character of the conviction.) (emphasis in original); United States v. Corona"Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc) ([A] presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of conviction is broader than the generic definition.); United States v. Potter, 895 F.2d 1231, 1237"38 (9th Cir. 1990).

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " ADMISSIONS IN PROCEEDINGS
Pagayon v. Holder, 642 F.3d 1226 (9th Cir. Jun. 24, 2011) (per curiam) (removal order was properly based, in part, on admissions petitioner made before the immigration judge: Pagayon's admission was needed only to confirm that the conviction was for the charged crime. . . . An IJ may consider an alien's admissions regarding removability if they are corroborated by the narrow, specified set of documents that are part of the record of conviction, Tokatly, 371 F.3d at 620. Absent some claim of mistake, duress or the like"which Pagayon does not raise"an admission is just as reliable as an explicit reference to the charging document in an abstract of judgment. And since an admission like Pagayon's does no more than establish that the conviction at issue was for the crime charged, it does not invite the IJ to improperly relitigate the criminal case by inquiring into the underlying facts of the crime.). NOTE: In this case, the information indicated that the respondent was charged with possession of meth, but the abstract of judgment did not specify a controlled substance. The respondent's admission was only that he pleaded guilty as charged in the information. Therefore, he did not admit to any facts that were not already in the record of conviction.

CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (error was harmless in using presentence report to determine that violation of Arizonal Revised Statutes 13-1405, sexual contact with a minor, was a statutory rape offense under the illegal re-entry sentencing guidelines where the portion of the PSR used referred to state documents used in court, rather than a factual narrative).

RECORD OF CONVICTION " FACTS VS. ELEMENTS " ADMISSIONS OF RESPONDENT DURING PROCEEDINGS
Perez-Mejia v. Holder, ___ F.3d ___, 2011 WL 1496990 (9th Cir. Apr. 21, 2011) (California conviction of possession of cocaine for sale, in violation of Health and Safety Code 11351, is not necessarily a controlled substances offense for purposes of triggering inadmissibility where the record of conviction is silent on the substance involved; admission of the respondent in the course of proceedings is insufficient to establish inadmissibility, since the admission is not part of the accepted record of conviction).

NATURE OF CONVICTION - RECORD OF CONVICTION - TESTIMONY OF RESPONDENT AT REMOVAL HEARING
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) ("the petitioner's testimony that he thought the substance was heroin does not alter the record of conviction.").

NATURE OF OFFENSE - RECORD OF CONVICTION - NONCITIZEN'S CONCESSION IN IMMIGRATION COURT DOES NOT CONSTITUTE PART OF RECORD OF CONVICTION
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) ("The Government does not argue, nor could it, that the IJ's reliance on Mandujano-Real's concession would suffice as a basis for removal if the BIA or the court were to determine that his conviction does not, as a matter of law, constitute an aggravated felony."), following Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. 2003) (explaining that an alien's "belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized.... The INS's contention that [the alien] is bound by [his counsel's admission] must fail"); see also Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (rejecting Government's argument that "Huerta waived her ability to challenge deportability before the BIA by conceding that she was removable").

RECORD OF CONVICTION - PROBATION REPORT - COURT NEED NOT RULE ON EVIDENTIARY OBJECTIONS TO INFORMATION CONTAINED IN PROBATION REPORT
United States v. Stoterau, 524 F.3d 988 (9th Cir. Apr. 29, 2008) (Rule 32 of the Federal Rules of Criminal Procedure did not require district court to rule on defendant's objections to information contained in his PSR).

RECORD OF CONVICTION - PROBATION REPORT - COURT NEED NOT RULE ON EVIDENTIARY OBJECTIONS TO INFORMATION CONTAINED IN PROBATION REPORT
United States v. Stoterau, 524 F.3d 988 (9th Cir. Apr. 29, 2008) (Rule 32 of the Federal Rules of Criminal Procedure did not require district court to rule on defendant's objections to information contained in his PSR).

NATURE OF CONVICTION - RECORD OF CONVICTION - PROBATION REPORT
Penuliar v. Mukasey, 523 F.3d 963 (9th Cir. Apr. 22, 2008) ("Finally, insofar as the IJ relied on the probation report to establish that Penuliar pled guilty to a "crime of violence," he was in error. See, e.g., United States v. Vidal, 504 F.3d 1072, 1087 n.25 (9th Cir. 2007) (en banc) (citing United States v. Franklin, 235 F.3d 1165, 1171 (9th Cir. 2000)) (explaining that a presentence report, even when considered in conjunction with charging papers, is insufficient to establish what facts a defendant admitted in his plea).").

RECORD OF CONVICTION - ADMISSIONS OF NONCITIZEN IN IMMIGRATION PROCEEDINGS DO NOT CONSTITUTE PART OF RECORD OF CONVICTION
Villarreal-Rodriguez v. Mukasey, ___ F.3d ___, 2008 WL 1776994 (9th Cir. Apr. 17, 2008) ("[T]he record of conviction and Villarreal's admissions before the IJ do not support use of the convictions as bases for removal.").