AGGRAVATED FELONY - DRUG TRAFFICKING - A PLEA TO A DISJUNCTIVE CHARGE ALLEGING SALE OR TRANSPORTATION OR OFFER TO SELL UNDER A DIVISIBLE STATUTE DOES NOT UNEQUIVOCALLY ESTABLISH A DRUG TRAFFICKING CONVICTION
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir.
AGGRAVATED FELONY - DRUG TRAFFICKING - WHERE A CHARGE IS DISJUNCTIVE IN PART (ALLEGING SALE/TRANSPORTATION/OFFER TO SELL) AND CONJUNCTIVE IN PART, IT IS NOT "UNEQUIVOCALLY CLEAR" THAT THE DEFENDANT WAS PLEADING TO A DEPORTABLE OFFENSE UNDER A DIVISIBLE ST
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir.
CONVICTION - PLEA - CONJUNCTIVE - A PLEA IN THE CONJUNCTIVE ESTABLISHES EACH FACT ALLEGED AS TRUE
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) (a guilty plea to facts stated in the conjunctive establishes each factual allegation as true), following United States v. Smith, 390 F.3d 661, 665 (9th Cir. 2004).
http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf
Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.
JUDICIAL REVIEW - PETITION FOR REVIEW - WAIVER OF ARGUMENT BY FAILURE TO RAISE IT IN OPENING BRIEF
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) ("The government tried to save the enhancement at oral argument by pointing to a statement of the counsel of Almazan-Becerra suggesting that the charged conduct involved sales. This argument is waived, however, both for the government's failure to raise it in its opening brief, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) ("on appeal, arguments not raised by a party in its opening brief are deemed waived"), and for its failure to raise it before the district court, see Monetary II Ltd. P'ship v.
RECORD OF CONVICTION - POLICE REPORTS STIPULATED AS FACTUAL BASIS FOR DISJUNCTIVE PLEA TO DIVISIBLE STATUTE DO NOT UNEQUIVOCALLY ESTABLISH PLEA TO DEPORTABLE OFFENSE
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) (police reports stipulated as factual basis for plea do not unequivocally establish plea to deportable offense where plea is in disjunctive: "First, although Almazan-Becerra stipulated that the police reports formed a factual basis to support his plea, the plea was disjunctive. He therefore could have been stipulating that the police reports supported a plea to transporting or offering to sell marijuana.
CONVICTION - RECORD OF CONVICTION - POLICE REPORTS - POLICE REPORTS STIPULATED AS FACTUAL BASIS FOR PLEA DO NOT CONSTITUTE PART OF RECORD OF CONVICTION UNLESS THEY CONTAIN DEFENDANT'S OWN ACCOUNT OF EVENTS OR A MUTUALLY AGREED-UPON STATEMENT OF FACTS
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) (police reports stipulated as factual basis for plea are not the functional equivalent of either a plea agreement or plea colloquy, and are therefore not the functional equivalent of either a plea agreement or plea colloquy, unless they "contain either the defendant's own account of the events, or a mutually agreed-upon statement of facts."), distinguishing United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217-19(9th Cir. 2005).
http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf
CONVICTION - RECORD OF CONVICTION - POLICE REPORTS CANNOT CONSTITUTE PART OF RECORD OF CONVICTION UNLESS GOVERNMENT DISTINGUISHES THE CASE FROM SHEPARD
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) ("If the government on remand continues to assert that the police reports, which Almazan-Becerra's counsel stipulated constituted a factual basis for his disjunctive plea, support application of the enhancement, the district court will need to determine whether this case can be distinguished from United States v. Shepard.").
http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf
RELIEF - REINSTATEMENT OF DEPORTATION - JUDICIAL REVIEW - DUE PROCESS
United States v. Charleswell, 456 F.3d 347 (3d Cir. Aug. 1, 2006) (collateral attack of deportation order upon prosecution for illegal re-entry may include an attack on the original deportation order as well as the reinstated order upon which the illegal re-entry charges are based; "[r]einstatement orders do not exist independent and separate from their prior orders of removal but are instead explicitly premised on the prior order. See 8 U.S.C. 1231(a)(5)")
http://caselaw.lp.findlaw.com/data2/circs/3rd/044513p.pdf
AGGRAVATED FELONY - FORGERY
Bobb v. Atty Gen. of the United States, __ F.3d __ (9th Cir. Aug. 3, 2006) (to constitute aggravated felony "forgery" under INA 101(a)(43)(R) the offense must be "related to" forgery, i.e., show or establish a logical connection with forgery; a forgery offense does not necessarily require proof of an intent to defraud; 18 U.S.C. 510(b) [exchange of forged Treasury instruments] given as example of a forgery offense that is "related to" forgery, but does not involve fraud), following Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001).
http://caselaw.lp.findlaw.com/data2/circs/3rd/052891p.pdf
JUDICIAL REVIEW - ABUSE OF DISCRETION - ERROR OF LAW
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) ("A district court by definition abuses its discretion when it makes an error of law."), quoting Koon v. United States, 518 U.S. 81, 100 (1996).
Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.