Cabantac v. Holder

• Decision Date: 09 August 2013
• Docket Number: 12–71459 .,Nos. 09–71336,s. 09–71336
• Citation: 736 F.3d 787
• Parties: Randy Penaranda CABANTAC, aka Randy Reyes, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

736 F.3d 787

Randy Penaranda CABANTAC, aka Randy Reyes, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 09–71336, 12–71459 ^*.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 9, 2011.

Filed Aug. 23, 2012.

Amended Aug. 9, 2013.

Kara L. Hartzler, Florence Immigrant and Refugee Rights Project, Florence, AZ; Kari Elisabeth Hong, Law Offices of Kari E. Hong, Oakland, CA, for Petitioner.

Linda Y. Cheng, Francis William Fraser, Gary J. Newkirk, Aaron R. Petty, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A045–078–802.

Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, and CARLOS T. BEA, Circuit Judges.

ORDER

The opinion filed on August 23, 2012, and appearing at 693 F.3d 825, is amended as follows:

At slip opinion page 9632, 693 F.3d at 827, replace with this court because it was not part of the administrative record on which the order of removal is based. See8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”). However, it bears emphasizing that even the amended abstract does not necessarily establish that Cabantac pleaded guilty only to the general state offense.>

With this amendment, the panel has unanimously voted to deny Petitioner's petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. A majority of the non-recused active judges did not vote in favor of rehearing en banc.

The petition for rehearing and the petition for rehearing en banc are DENIED. Judge Murguia's dissent from the denial of en banc rehearing is filed concurrently herewith.

No further petitions shall be entertained.

MURGUIA, Circuit Judge, with whom PREGERSON, REINHARDT, WARDLAW, W. FLETCHER, PAEZ, CHRISTEN and HURWITZ, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Immigration judges are often asked to determine whether a person has been previously convicted of a crime that fits into a certain category, e.g., a “controlled substance offense” or an “aggravated felony.” ¹ In turn, non-citizen criminal defendants contemplating a plea offer must predict how an immigration judge could later categorize the conviction. The impact of this categorization can be profound—in this case, it determines whether a 34–year–old lawful permanent resident who has lived in the United States since he was 17 will be deported to a country in which he has no family, or whether he will remain in this country with his father. Unfortunately, we have provided incoherent guidance to the immigration judges making these important decisions and to defendants contemplating plea agreements. I would have reheard this case en banc to resolve the conflict that it creates with United States v. Vidal, 504 F.3d 1072 (9th Cir.2007) (en banc).

This case required the immigration judge to determine whether Randy Cabantac's conviction for violating California Health & Safety Code § 11377(a) was a “controlled substance offense” that makes him removable under the Immigration and Nationality Act. See8 U.S.C § 1227(a)(2)(B)(i). Section 11377(a) punishes the possession of a number of substances, some of which are prohibited by the Controlled Substances Act but some of which are not. Ruiz–Vidal v. Gonzales, 473 F.3d 1072, 1076–78 (9th Cir.2007). Thus, because § 11377(a) punishes conduct that is not a “controlled substance offense” under federal law, it is a categorically overbroad statute, requiring us to apply the modified categorical approach to identify “which statutory phrase was the basis for the conviction,” and determine if that statutory phrase only prohibits conduct that would be a “controlled substance offense.” Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013) (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).²

The panel here purported to define the circumstances under which the facts alleged in a criminal complaint may be considered by a judge in identifying the statutory phrase in an overbroad statute that was the basis for a prior conviction. But we have already resolved this question. In Vidal, an en banc panel held, “[Vidal] pled guilty [ ] only to ‘Count 110851(a) VC Driving a Stolen Vehicle.’ The plea does not, therefore, establish that Vidal admitted to all, or any, of the factual allegations in the Complaint.' ” Vidal, 504 F.3d at 1087.Vidal explained that “to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain the critical phrase ‘as charged in the information.’ ” Id. (citation omitted).

According to the panel here, Cabantac's amended abstract of judgment “indicates that he pleaded to count one of the complaint.” Am. Op. at 14. And “that where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.” Id. at 15. But Cabantac's abstract of judgment does not say “as charged in the information”—what Vidal called “the critical phrase,” 504 F.3d at 1087. There is simply a box labeled “CNT.” and in that box is the number “1.” ³

Both Vidal and Cabantac pled guilty to “Count 1.” Compare Vidal, 504 F.3d at 1078 (“He pled guilty ... only to ‘Count 1 ...’ ”); and id. at 1075 (“Vidal pled guilty ... to Count One....”) with Appendix. The Vidal en banc panel held that reference to “Count 1” does not allow consideration of the allegations in the indictment. This panel holds the opposite.⁴

When we review district and immigration judges, we often require them to provide a reasoned explanation of how they reached their decision. See, e.g., Padgett v. Loventhal, 706 F.3d 1205, 1208 (9th Cir.2013) (“Show your work!”). However, the panel does not cite—let alone distinguish—Vidal, leaving us to guess how the two cases can be reconciled.⁵ I fear that the panel has created an intra-circuit split that will inevitably require an en banc panel to resolve. See Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1479 (9th Cir.1987) (holding that a panel faced with an intracircuit split must call for en banc review, which will normally be granted). I would have reheard this case en banc to avoid creating such a split in the first place.

This is not the first case to create confusion about the rule articulated in Vidal. In United States v. Valdavinos–Torres, 704 F.3d 679 (9th Cir.2012), the defendant pled guilty to violating California Health & Safety Code § 11378, which also criminalizes the possession of more substances than does federal law. According to the panel, the record in that case, in contrast to Vidal, “unequivocally establish[ed]” that Valdavinos–Torres's crime involved methamphetamine, id. at 688, despite the fact that the only reference to methamphetamine was in the complaint, id., and there is no indication that the plea contained the critical phrase “as charged in the indictment.”

The Valdavinos–Torres panel also suggested that Vidal was no longer good law in light of United States v. Snellenberger, 548 F.3d 699 (9th Cir.2008) (en banc), which replaced the Snellenberger panel opinion that was cited in Vidal and held that a clerk's minute order can be considered in the modified categorical approach. Valdavinos–Torres, 704 F.3d at 688–89. Similarly, in United States v. Leal–Vega, 680 F.3d 1160, 1168 (9th Cir.2012), the panel considered the impact of a guilty plea to “Count 1,” found the Snellenberger en banc opinion “to be directly on point,” and declined to follow Vidal. It is possible that the Snellenberger en banc opinion overruled Vidal, but it remarkably fails to cite Vidal and it seems more likely that the two cases are consistent and addressed distinct issues. Vidal considered what language was necessary to allow consideration of allegations in a criminal complaint when applying the modified categorical approach. 504 F.3d at 1087.Snellenberger considered whether a minute order was a sufficiently reliable judicial document to warrant consideration under the modified categorical approach. 548 F.3d at 701–02. Snellenberger did not argue that even if the minute order was considered, it was insufficient to allow consideration of the complaint.

At best, our precedent in this area of the law can be called a mess. The lack of uniformity and clarity is particularly troubling because “changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1480, 176 L.Ed.2d 284 (2010). Often, the immigration consequences of a plea agreement are “more important to the client than any potential jail sentence,” id. at 1483 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)), but calculating those consequences can be difficult, id. By muddying the waters in this area of already confusing law, the panel makes this calculation even more difficult. ⁶See Padilla, 130 S.Ct. at 1489 (Alito, J., concurring) (noting that advising criminal defendants is difficult because “the Ninth Circuit has conflicting opinions” relating to aggravated felonies) (quoting R. McWhirter, ABA, The Criminal Lawyer's Guide to Immigration Law: Questions and Answers § 5.35 (2d ed.2006)). Based on the current state of the law in this circuit there is a real risk that criminal defendants will be deprived of the intended benefit of their plea, a prospect that “ ‘would...