Ninth Circuit holds that a guilty plea is not an admission to every possible theory of conviction.

This wikilog article is a draft, it was not published yet.

by: Rjohnson • September 19, 2012 • no comments

In Young v. Holder, __F.3d__ (9^th Cir. Sept. 17, 2012) (en banc), the Ninth Circuit held that, where the accusatory instrument embraces multiple theories of conviction and the defendant pleads guilty without specifying one, the defendant has admitted only that one of the theories is true. Mr. Young was convicted of a California offense encompassing delivery, transport, and offering to sell drugs. The government sought deportation (or, technically, removal), and Mr. Young sought cancellation of removal.

Mr. Young was ineligible for cancellation of removal if he committed the aggravated felony of "selling" drugs. He was not ineligible if he transported or offered to sell drugs. The record of his conviction did not specify the conduct leading to the conviction. The Ninth Circuit held that, because the record of his conviction did not specify, he could offer evidence in immigration court that his conduct did not qualify as an aggravated felony, and thus he was eligible for cancellation of removal.

Note that the proof that the immigrant can offer is limited to official court records; the indictment, judgment, plea petition, and transcript. The Young opinion refers to those documents as Shepherd documents, after Shepard v. United States, 544 U.S. 13, 26 (2005).

That means that the defendant cannot rely on a vague record; the record must affirmatively show the facts about the offense on which the defendant will later seek to rely. The most obvious example under Oregon law is delivery of a controlled substance because it does not require actual delivery. See State v. Boyd, 92 Or App 51, 54, 756 P2d 1276, rev den 307 Or 77 (1988). Accordingly, counsel should specify that the delivery is a Boyd delivery.

It is not clear whether this analysis is limited to immigration cases. It might affect other federal procedure, such as armed-career-criminal findings or sentencing guidelines calculations. Accordingly, counsel should make a habit of considering whether there are multiple versions of the crime alleged, and, if so, whether it is possible to clarify the record to the defendant's benefit. If, during the plea colloquy during a Boyd delivery case, defense counsel specified that it was a Boyd delivery, I doubt anyone would object, or even notice. For other offenses, such as the different varieties of conduct that could lead to a conviction for, e.g., assault in the second degree (only one requires a weapon) or sexual abuse (many different varieties), an accurate statement of the underlying facts is unlikely to do harm, and might be beneficial to a frequent-flyer client.

If you're interested, there are some additional comments on Young at: http://www.ilrc.org/resources/ninth-circuit-decides-key-issues-about-categorical-approach-overturns-sandoval-lua. That's an immigration-law website, but it is intended to be helpful to criminal defense counsel as well.