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Ninth Circuit Decision In Martinez-Perez v. Ashcroft

by Kathy Brady, Esq.

On August 2, 2005 the Ninth Circuit withdrew its flawed opinion in Martinez-Perez v Ashcroft, 393 F.3d 1018 (9th Cir. 2004) and issued a new opinion finding that the conviction in the case is not an aggravated felony. The ILRC's brief in support of the petition for reconsideration discusses the below issues in more detail, and will be available shortly at

The change from the original opinion relates to the modified categorical analysis, which immigration attorneys often refer to as the record of conviction and divisible statutes. The modified categorical analysis governs which documents relating to a prior conviction a reviewing body can consult in order to determine the specific elements of the offense of conviction.

In the new opinion the Ninth Circuit:

  1. Reaffirmed its initial holding that aiding and abetting an offense under California law is not an aggravated felony even if the principal offense is.

  2. Acknowledged that under California law, an aider and abettor can be adequately charged in language accusing him or her of directly committing the offense. Therefore a plea to a charge alleging direct commission of a theft does not establish that the offense pled to was not aiding and abetting, and therefore does not establish that the offense is an aggravated felony. (See also Penuliar v Aschroft, 395 F.3d 1037, 1045-46 (9th Cir. 2005)).

  3. Held that Shepard v United States, 125 S.Ct. 1254 (2005) applies to immigration cases. In this very good decision, the Supreme Court held that in a modified categorical analysis of a conviction by guilty plea, the court can consult only limited documents as part of the record of conviction. Describing Shepard, the Ninth Circuit said:
  4. "The Court explained that the sentencing court can look only to “the charging document, written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the defendant assented.” Id. at 1257. These are documents from which “a later court could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary as generic . . . just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.” Id. at 1260; see also Corona-Sanchez, 291 F.3d at 1211 (explaining that the court can consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime). Charging papers alone, however, are never sufficient." (emphasis added)

  5. Provides us with a Ninth Circuit ruling supporting Shepard, with which to attack the notion that a charging document alleging Count X, coupled only with an Abstract of Conviction identifying that a plea was made to Count X, is proof that all of the elements charged in Count X actually were pled to. See United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002) (Abstract plus charging document is sufficient); see also United States v Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (written notation in the Abstract of Conviction cannot be reviewed, but the Court did consider the Abstract's notation of the Count of conviction combined with the charging document). In fact, charges frequently are amended before plea, to change either the offense charged as in this case, the language of the charge, or factual details. Thus the fact that some version of "Count I" ultimately was pled to does not by itself prove that all of the allegations in the original "Count I" were pled to.
In Martinez the relevant record was only a charging paper alleging robbery in Count I, and an Abstract of Judgment showing that the defendant had pled guilty to theft in Count I. In the original opinion the Ninth Circuit wrongly held that because the robbery charge did not mention aiding and abetting, this proved the person was charged with directly committing the offense. (Again, in the new opinion the Court acknowledges that this is not true under California law.) In the original opinion the Court then took its (wrong) assumption that the robbery charge could not include aiding and abetting, and wrongly used this information from the dropped robbery charge to categorize the plea to theft. Use of such information from a dropped charge not only is against Shepard, but violates well-established Ninth Circuit precedent. The Court corrects that in this opinion.

ICE may try to limit the effect of this decision by asserting that an Abstract of Conviction coupled with a charging document is insufficient only when the offense charged is different from the offense pled to -- e.g. as here where robbery was charged and theft was pled to. Counsel should oppose this interpretation of Martinez, as well as argue straight from Shepard. While the Martinez court did note that the charged and pleaded offenses were different, it went on to cite the Shepard requirement that a record must contain a plea agreement, transcript, or other specific evidence of the actual elements pled to, in order to establish those elements as part of the offense of conviction.

"Further, because the administrative record does not include a plea agreement, a transcript of the plea colloquy, or a statement of the factual basis for the guilty plea, cf., Parilla v. Gonzales, No. 03-74010, slip op. at 8031-32 (9th Cir. Jul. 11, 2005), we likewise cannot determine whether Martinez pled guilty to the taking of property, without consent, with the criminal intent to deprive the owner of rights and benefits of ownership, as a principal and not as an aider or abettor, as required by the generic definition of a theft offense. Corona-Sanchez, 291 F.3d at 1205."

About The Author

Katherine Brady, Esq. is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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