MISPRISION - CRIME OF MORAL TURPITUDE
Matter of Giraldo-Valencia, 10 Immig.Rptr. B1-132 (BIA Index Decision, October 22, 1992) (federal conviction of misprision of felony under 18 U.S.C. 4 constitutes a crime involving moral turpitude for purposes of triggering deportation, because, unlike the common law crime, a federal conviction for misprision of felony requires proof that the defendant took an affirmative step to conceal commission of a felony).
CONVICTION - RECORD OF CONVICTION - PLEA AGREEMENT CONSTITUTES PART OF RECORD OF CONVICTION
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.
CASE UPDATE - MARTINEZ PEREZ VACATED
Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004) (record of conviction - i.e., the charge and the absence of any codefendants - negated the possibility the defendant was convicted on an aiding and abetting theory which renders the statute divisible), vacated __ F.3d __ (9th Cir. August 3, 2005). DIVISIBLE STATUTES - AIDING AND ABETTING
RECORD OF CONVICTION - JURY TRIAL - JUDGMENT AND CHARGING DOCUMENTS ALONE INSUFFICIENT
United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Judgment of conviction and charging documents alone insufficient in jury trial to show noncitizen was convicted of aggravated felony portion of a divisible Nevada child abuse statute; jury instructions and/or verdict required to show elements of which noncitizen was found guilty).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310710p.pdf
AGGRAVATED FELONY - FRAUD OFFENSE - LOSS TO THE VICTIM - CHARGE AND JUDGMENT INSUFFICIENT TO SHOW JURY SPECIFICALLY FOUND LOSS IN EXCESS OF $ 10,000
Li v. Ashcroft, ___ F.3d ___ (9th Cir. November 19, 2004) (to prove aggravated felony fraud in which the loss to the victim exceeded $10,000, resulting from jury trial, DHS must show jury specifically found the requisite amount of loss).
http://caselaw.lp.findlaw.com/data2/circs/9th/0272597p.pdf
CONVICTION - RECORD OF CONVICTION - DOCUMENTS EXCLUDED - PROBATION REPORT
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction excludes probation report).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530066p.pdf
RECORD OF CONVICTION - PRESENTENCE REPORT - NOT CONSIDERED IN DETERMINATION OF NATURE OF CONVICTION UNDER MODIFIED CATEGORICAL ANALYSIS
United States v. Gonzalez-Chavez, ___ F.3d ___ , 2005 WL 3196524 (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), citing 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.
RECORD OF CONVICTION - PROBATION REPORT NOT INCLUDED WITHIN RECORD OF CONVICTION FOR PURPOSES OF AGGRAVATED FELONY SENTENCE ENHANCEMENT OF ILLEGAL REENTRY SENTENCE
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 USSG 2L1.2(b)(1)(A) for purposes of imposing a 16-level increase in the base offense level of an illegal reentry sentence).
CONVICTION - PLEA - FACTUAL BASIS - POLICE REPORTS IN RECORD OF CONVICTION - STIPULATING TO CONTENTS
Summary: The Ninth Circuit held in Parrilla v.
RECORD OF CONVICTION
United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code 12020(a)(1) cannot be considered a "firearms offense" where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun).
