Summary: The Ninth Circuit held in Parrilla v.
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).
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) ("Documents and testimony that would require us to make factual determinations that were not necessarily made in the prior criminal proceeding lie outside the scope of our inquiry under the modified categorical approach. Tokatly, 371 F.3d at 623-24 (testimony of a crime victim); Lara-Chacon, 345 F.3d at 1153-54 (a pre-sentencing report); United States v. Melton, 344 F.3d 1021, 1029 n.4 (9th Cir.2003) (police affidavit establishing probable cause).").
The Supreme Court decision in Shepard v. United States, 544 U.S. ___, 125 S.Ct. 1254 (March 7, 2005) in effect overruled the Board's decision in Matter of Vargas, 23 I. & N. Dec. 651 (BIA 2004), in which the BIA inferred the elements of the offense of conviction from the original charge, even though the original charge was not the charge of which the defendant had ultimately been convicted. The Shepard/Taylor holdings apply to immigration cases. In Vargas, the Board had held: In this case, we find that section 125.20 of the New York Penal Law is a divisible statute . . .
United States v. Nobriga, ___ F.3d ___, ___ n.4 (9th Cir. May 20, 2005) (per curiam) (assuming, without deciding, that defendant's admission in district court that victim of prior Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), was "former girlfriend" was not admissible to establish that prior conviction fell within the definition of a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because: "Such a post hoc admission is not pertinent to Taylor's modified categorical approach.
Martinez-Perez v. Ashcroft, __ F.3d __ (9th Cir. August 3, 2005) (Shepard v United States, 125 S.Ct. 1254 (2005) applies to immigration cases).
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), constituted a conviction of a misdemeanor crime of violence, under 18 U.S.C. 921(a)(33)(A)(ii), because the charging papers and the judgment of conviction made clear that Nobriga pleaded guilty to "physically abus[ing] a family or household member," and not to "refus[ing] compliance with a lawful order of a police officer").
United States v. Guerrero-Velasquez, ___ F.3d ___ (9th Cir. Jan. 19, 2006) (in conducting modified categorical analysis, record of conviction includes signed plea agreement admitting facts charged in information, including entry of a residence, so conviction under divisible burglary statute qualified as burglary for purposes of imposing a 16-level increase in base offense level under U.S.S.G. 2L1.2(b)(1)(A)(ii) (2003) for illegal reentry sentence).
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United States v. Torres-Diaz, ___ F.3d ___, 2006 WL 225615 (5th Cir. Jan.
United States v. Hernandez-Hernandez, ___ F.3d ___, ___ n.5, 2005 WL 3440815 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code 236, constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G.