The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses.

The sentencing guidelines for illegal reentry cases were amended on November 1, 2001 to add Application Note 4, which provided: "4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." This Application Note was in effect until November 1, 2003, when it was deleted from the guideline commentary. USSG, 2L1.2, 18 U.S.C.A.

Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

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).

United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (district court erred in relying on presentence report from prior conviction in determining whether prior conviction constituted drug trafficking aggravated felony for purposes of triggering a sentence enhancement for illegal reentry after deportation).

United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).

United States v. Gutierrez-Ramirez, __ F.3d __, 2005 WL 762664 (5th Cir. April 2, 2005) (Although strict limitation to examination of statutory elements of statute of conviction is not required to determine whether an offense is a "drug trafficking offense" for sentence enhancement purposes, the courts are limited to examination of the indictment and/or jury instructions; California abstract of judgment could not be used to determine that noncitizens prior drug conviction was a "drug trafficking offense").

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

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.

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).