United States of America v Strickland - Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30091

Plaintiff-Appellee, D.C. No.

v.  6:07-CR-00021-

DENNIS STRICKLAND, CCL-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

September 23, 2009—San Francisco, California

Filed April 19, 2010

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Stephen Reinhardt, Diarmuid F. O’Scannlain,

Pamela Ann Rymer, Sidney R. Thomas, Barry G. Silverman,

Marsha S. Berzon, Jay S. Bybee, Consuelo M. Callahan and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Chief Judge Kozinski;

Concurrence by Judge Thomas;

Dissent by Judge Berzon;

Dissent by Judge Reinhardt

5767

UNITED STATES v. STRICKLAND 5771

COUNSEL

Anthony R. Gallagher, Federal Defendant, and Michael

Donahoe (argued), of Helena, Montana, for defendant-

appellant Dennis Strickland.

Will W. Mercer, United States Attorney, Ryan M. Archer

(argued), Marcia Hurd, and Eric B. Wolff, Assistant United

States Attorneys, of Billings, Montana, for the United States.

5772 UNITED STATES v. STRICKLAND

OPINION

CALLAHAN, Circuit Judge:

Dennis Strickland appeals following his guilty-plea convic-

tion for receipt and possession of child pornography. He chal-

lenges the government’s proof at sentencing that a prior

Maryland conviction for child abuse was a predicate offense

relating to sexual abuse of a minor under 18 U.S.C.

§ 2252A(b)(1) and (2) resulting in an increased statutory

minimum and maximum sentence. To show that the prior

Maryland conviction was a predicate offense, the government

offered a Maryland court docket sheet and sex offender regis-

tration documents signed by Strickland from the states of

Washington and Montana. We affirm the district court’s judg-

ment on the basis that the docket sheet for the Maryland con-

viction establishes that the predicate offense was for sexual

abuse of a child, and accordingly, do not reach the question

of whether the district court could consider Strickland’s sex

offender registration forms.

I

Strickland was charged in a two-count indictment with

Receipt of Child Pornography (Count I), in violation of 18

U.S.C. § 2252A(a)(2), and Possession of Child Pornography

(Count II), in violation of 18 U.S.C. § 2252A(a)(5)(B). He

pleaded guilty to both counts without a plea agreement. Str-

ickland’s presentence report (“PSR”) noted that he had been

convicted in Maryland in 2002 for child abuse.1 The PSR

described the incidents of abuse in graphic detail, and treated

the conviction as a sexual offense. Strickland subsequently

pleaded guilty, and the prior sexual offense triggered height-

ened statutory minimum and maximum sentences.2 The PSR

1

Strickland was convicted under former MARYLAND CODE ART. 27,

§ 35C (currently codified at MD. CODE ANN., CRIM. LAW § 3-601(West

2009)).

2

Strickland’s statutory minimum and maximum sentence for Count I

was increased from 5 to 20 years to 15 to 40 years. See 18 U.S.C.

UNITED STATES v. STRICKLAND 5773

determined that Strickland’s total offense level was 35, his

criminal history category was III, and his advisory sentencing

guideline range was 210 to 262 months.

Strickland objected that his Maryland conviction was not

categorically a predicate offense under 18 U.S.C. § 2252A(b)

and could not be used to enhance his statutory penalties. Str-

ickland reasoned that the Maryland statute proscribed both

physical and sexual abuse of a minor, and was therefore over-

inclusive because a prior conviction solely for physical abuse

would not be a qualifying offense under § 2252A(b). He

argued that the government failed to introduce acceptable

documentation to prove that his prior offense was related to

sexual abuse.3

At the sentencing hearing, the government introduced sev-

eral documents in support of the enhancement. It offered an

uncertified docket sheet from the Circuit Court for Baltimore

County, Maryland, showing that in July 2002, Strickland had

been charged with one count of “child abuse” pursuant to

MARYLAND CODE ART. 27, § 35C; two counts of sexual

offense-fourth degree; two counts of attempted sexual

offense-fourth degree; and one count of perverted practice. In

November 2002, Strickland pleaded guilty to the count of

“child abuse” and the other charges were dismissed. Under

the heading “Docket Information,” the docket sheet stated:

“Registration required under Criminal Procedure Sec. 11-704.

Defendant to register DNA. Defendant is a child sex offend-

er.”

§ 2252A(b)(1). His sentencing range for Count II was increased from “not

more than 10 years” to “not less than 10 years nor more than 20 years.”

See 18 U.S.C. § 2252A(b)(2).

3

Strickland also objected to several other sentencing enhancements in

the PSR, but he abandoned those objections at the sentencing hearing and

they are not part of the instant appeal.

5774 UNITED STATES v. STRICKLAND

The government also offered sex offender registration doc-

uments signed by Strickland from the states of Washington

and Montana. Strickland had registered in these states as

required by their laws when he had moved to those states fol-

lowing his Maryland conviction.

The district court held that the Baltimore County docket

sheet was part of the state court record and therefore could

properly be considered. The court concluded that the docket

sheet was accurate beyond a reasonable doubt given the other

information and evidence before the court, including the two

state sexual offender registration forms. The court overruled

Strickland’s objection and concluded that the PSR calcula-

tions were correct. The court sentenced Strickland to concur-

rent terms of 240 months incarceration on each count of the

indictment.

Strickland appealed and a three-judge panel of our court

affirmed the district court’s judgment, holding that the sex

offender registration forms could be considered when deter-

mining the nature of Strickland’s 2002 Maryland conviction.

United States v. Strickland, 556 F.3d 1069, 1070 (9th Cir.

2009). We then voted to rehear this appeal en banc. United

States v. Strickland, 569 F.3d 956, 957 (9th Cir. 2009).

II

On appeal, Strickland argues that the government failed to

produce judicially noticeable documents sufficient to prove

that his Maryland conviction for child abuse was a predicate

offense under 18 U.S.C. § 2252A(b). He contends that the

court misapplied the modified categorical approach and

improperly relied on the PSR, the Maryland docket sheet, and

the two sex offender registration forms when determining that

his prior conviction was a predicate offense. “We review de

novo a district court’s conclusion that a prior conviction qual-

ifies for a sentencing enhancement.” United States v.

Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008).

UNITED STATES v. STRICKLAND 5775

[1] A defendant convicted for violating § 2252A is subject

to an enhanced sentence if he has a prior state conviction “re-

lating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.” 18 U.S.C. § 2252A(b)(1),

(2). We have broadly interpreted this statute to apply not sim-

ply to state offenses that are equivalent to sexual abuse, but

rather to “any state offense that stands in some relation, bears

upon, or is associated with that generic offense.” United

States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007).

[2] The determination of whether a prior conviction quali-

fies as a predicate sex offense under § 2252A(b) is governed

by the categorical approach announced in Taylor v. United

States, 495 U.S. 575, 600-02 (1990). The categorical

approach “generally requires the trial court to look only to the

fact of conviction and the statutory definition of the prior

offense.” Id. at 602. This approach requires a comparison of

the elements of the state criminal offense with the predicate

offense as defined in the federal statute. Sinerius, 504 F.3d at

740. Here, the terms “aggravated sexual abuse,” “sexual

abuse,” and “abusive sexual conduct involving a minor”

found in § 2252A(b) must be compared with the elements of

the Maryland child abuse statute under which Strickland was

convicted. Under this approach, a conviction under the Mary-

land statute will categorically qualify as a predicate offense

“only if the full range of conduct covered by the [Maryland]

statute falls within the meaning of those terms.” Id.; see also

United States v. Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir.

2006) (“[I]n order for a violation of the state statute to qualify

as a predicate offense, the full range of conduct covered by

the state statute must fall within the scope of the federal statu-

tory provision.”) (internal quotation marks and citation omit-

ted) (alteration in original).

[3] The government here concedes that Strickland’s con-

viction for the Maryland offense of child abuse is not categor-

ically an offense “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor” because

5776 UNITED STATES v. STRICKLAND

at the time of Strickland’s offense the Maryland statute

defined child abuse to include both “physical injury” and

“sexual abuse.”4 The Maryland statute thus covered conduct

that is broader than the conduct contemplated by § 2252A(b),

which requires that the prior offense be related to sexual

abuse to qualify for an enhanced federal sentence. Because

the full range of conduct covered by the Maryland statute

does not fall within the meaning of the federal statute, Strick-

land’s prior conviction is not categorically a predicate offense

under § 2252A(b).

[4] Where, as here, the state statute is broader than the fed-

eral definition of a predicate offense, “we must use the so cal-

led modified categorical approach, which requires us to

determine — if we can — whether the conduct for which the

defendant was convicted fits within the federal definition of

the offense.” United States v. Snellenberger, 548 F.3d 699,

701 (9th Cir. 2008) (en banc) (citing Taylor, 495 U.S. at 602).

In doing so, the Supreme Court has directed that the inquiry

is “generally limited to examining the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” Shepard v. United States, 544

U.S. 13, 16 (2005). This list, however, is illustrative and other

“documents of equal reliability may also be considered.”

Snellenberger, 548 F.3d at 701. Our purpose is to determine

whether documentation or judicially noticeable facts clearly

establish that the defendant pleaded guilty to facts covered by

the predicate offense. United States v. Gomez-Leon, 545 F.3d

777, 783-84 (9th Cir. 2008) (noting that “we may make a lim-

ited inquiry into the facts of the underlying conviction to

determine whether the conviction was based on all of the ele-

ments of a qualifying predicate offense”) (internal quotation

4

See MD. CODE ART. 27, § 35C(a)(2) (2002) (repealed eff. Oct. 1, 2002).

Physical injury and sexual abuse of children are now covered in separate

statutory provisions. See MD. CODE ANN., CRIM. LAW, §§ 3-601, 3-602

(West 2009).

UNITED STATES v. STRICKLAND 5777

marks and citation omitted); United States v. Crawford, 520

F.3d 1072, 1078 (9th Cir. 2008) (noting that a prior offense

may qualify as a career offender predicate offense if “docu-

mentation or judicially noticeable facts clearly establish that

the conviction is a predicate conviction for enhancement pur-

poses”) (quotation marks and alteration omitted).

III

We determine that the docket sheet from the Maryland Cir-

cuit Court clearly establishes that Strickland pleaded guilty to

sexual abuse of a minor, and thus the district court properly

gave him an enhanced sentence. In reaching this conclusion

we determine that: (1) pursuant to our decision in Snellenber-

ger, the district court properly considered the docket sheet; (2)

in this instance, there was no need for the docket sheet to be

certified; and (3) the docket sheet clearly indicates that Strick-

land pleaded guilty to sexual abuse of a minor.

A. The district court properly reviewed the docket sheet.

[5] In Snellenberger, we held that a court may consider a

clerk’s minute order when applying the modified categorical

approach. 548 F.3d at 702. We held that the minute order had

the requisite reliability because (1) it was “prepared by a court

official at the time the guilty plea is taken (or shortly after-

ward),” (2) the “official is charged by law with recording the

proceedings accurately,” and (3) “the defendant had the right

to examine and challenge its content.” Id.

[6] The docket sheet from the Circuit Court of Maryland

meets these criteria. First, the Maryland Rules provide that the

clerks of Maryland Circuit Courts are responsible for main-

taining dockets. Md. Rule 16-305. Second, Maryland law pro-

vides that the court clerk has “custody of the books, records,

and papers of his office” and shall “[m]ake proper legible

entries of all proceedings of the court and keep them in well-

bounded books or other permanent form.” MD. CODE ANN.,

5778 UNITED STATES v. STRICKLAND

CTS. & JUD. PROC. § 2-201(a)(1)-(2) (West 2009). Moreover,

Maryland Rule 8-202(f) states that entry of a judgment in a

case “occurs . . . when the clerk . . . first makes a record in

the writing of the judgment . . . on the file jacket, on a docket

within the file, or in a docket book . . . and records the actual

date of the entry.” We determine that under the applicable

state law, the docket sheet meets the first two criteria set forth

in Snellenberger for use of a document by a court when deter-

mining whether “the conduct for which the defendant was

convicted fits within the federal definition of the offense.”

548 F.3d at 701.

[7] Our review of Maryland case and statutory law shows

that the docket sheet also meets the third prong of the Snellen-

berger standard. Rule 4-621 of the Maryland Rules states that

“[c]lerical mistakes in . . . parts of the record may be cor-

rected by the court at any time on its own initiative, or on

motion of any party after such notice.” The rules also provide

that “[o]n motion or on its own initiative, the appellate court

may order that an error or omission in the record be correct-

ed.” Md. Rule 8-414(a). Furthermore, Maryland courts have

held that mistakes in the docket entry should be corrected.

Caldwell v. State, 884 A.2d 199, 220 (Md. Ct. Spec. App.

2005) (holding that the clerk must correct the docket entries

to reflect the not guilty verdict reflected in the transcript).

Accordingly, we conclude that Strickland and his counsel had

the right under Maryland law to examine and challenge the

content of the docket sheet. Indeed, Strickland has not con-

tended otherwise.

B. In this instance, the docket sheet did not have to be

certified.

Despite existing Maryland law, Strickland argues that the

district court should not have considered the docket sheet

because it was not certified. When pressed at oral argument,

counsel could not offer any reason for questioning the accu-

racy of the docket sheet, but nonetheless asserted that unless

UNITED STATES v. STRICKLAND 5779

it was certified the docket sheet could not be considered.

Some support for this position might be extracted from the

fact that “the government bears the burden to demonstrate that

the prior conviction was a qualifying offense.” Gomez-Leon,

545 F.3d at 785; see also United States v. Kelly, 422 F.3d 889,

895 (9th Cir. 2005) (noting that “the government has the bur-

den to establish clearly and unequivocally the conviction was

based on all of the elements of a qualifying predicate

offense”) (internal quotation marks and citation omitted).

[8] This burden, however, does not require that the govern-

ment routinely provide a certified copy of a docket sheet or

minute order, at least where, as here, there is no reason to

question the proffered docket sheet’s authenticity or content.

Although certification was not raised in Snellenberger, our

conclusion that certification is not a prerequisite to consider-

ation of a docket sheet flows from our discussion of a defen-

dant’s responsibility to challenge a minute order.5 In

Snellenberger, we held that a defendant’s ability to check the

case file and to ensure its accuracy, coupled with defense

counsel’s professional obligation to do so, allowed a court to

find that a minute order met the reliability standard set forth

in Shepard. Snellenberger, 548 F.3d at 702. Pursuant to this

5

We wrote:

It’s not clear from the record whether parties to a criminal case

in California are given copies of the clerk’s minute order at the

time it is placed in the case file, but there is certainly no sugges-

tion that it’s a secret document. A defendant can always check

the case file and ensure that any materials placed there accurately

reflect the proceedings; presumably, doing so is part of every

criminal defense lawyer’s professional obligation. In any event,

by analogy to transcripts, it’s enough that the minute order was

prepared by a neutral officer of the court, and that the defendant

had the right to examine and challenge its content, whether or not

he actually did. Having failed to challenge or correct the minute

order in state court — perhaps because there wasn’t a basis for

doing so — Snellenberger is now bound by what it says . . . .

Snellenberger, 548 F.3d at 702.

5780 UNITED STATES v. STRICKLAND

approach, the fact that a docket sheet is not certified is not, in

itself, a legitimate ground for questioning its reliability.

Rather, in light of the ability of a defendant to check the case

file and the obligation of counsel to do so, a docket sheet, reg-

ular on its face, is entitled to a presumption of authenticity. Of

course, if the defendant offers any reasonable ground for

questioning the document, a district court may require that the

document be certified or otherwise authenticated. However,

here, counsel offered no reason to question the docket sheet.

Accordingly, we hold that even without certification, the

docket sheet, which Maryland law requires be prepared and

maintained by a court clerk, and which defendant has a right

to review and correct, is of sufficient reliability under Shepard

and Snellenberger. Thus, the district court properly consid-

ered it in determining whether Strickland was convicted of

sexual abuse of a minor.6

C. The docket sheet clearly indicates that Strickland

pleaded guilty to sexual abuse of a minor.

[9] Although the docket sheet is not a model of clarity, a

fair reading of the document leaves no doubt that Strickland

pleaded guilty to “abusive sexual conduct involving a minor.”

18 U.S.C. § 2252A(b)(1), (2). It is true that the statute to

which he pleaded guilty, MARYLAND CODE ART. 27§ 35C,

included both “physical injury” and “sexual abuse” of a child.

However, two entries on the docket sheet confirm that the

plea was to sexual abuse. First, the docket sheet states, “De-

fendant is a child sex offender.” As Strickland only pleaded

guilty to one count, that count must be the basis for this deter-

mination. Certainly, if it were inaccurate, Strickland or his

attorney could have objected as allowed by Maryland law. See

6

As our analysis makes clear, we hold that the district court properly

relied upon the docket sheet because Maryland’s numerous statutes and

rules ensure that it complies with the requirements we announced in Snel-

lenberger. We express no opinion as to whether a different state’s docket

sheet would pass muster under those requirements.

UNITED STATES v. STRICKLAND 5781

Caldwell, 884 A.2d at 220. Second, the docket sheet states:

“Registration required under Criminal Procedure Sec. 11-704.

Defendant to register DNA.” Section 11-704(a) requires regis-

tration of sexual offenders and child sexual offenders. MD.

CODE ANN., CRIM. PROC. § 11-704(a) (West 2009). Because

Strickland pleaded guilty to a single count, the requirement

that he register under § 11-704(a) confirms that the plea was

to sexual abuse rather than physical abuse of a child.7 Thus,

the only fair reading of the docket sheet is that Strickland

pleaded guilty to sexual abuse of a minor.

IV

The modified categorical approach is not a judicial version

of three-card monte. Rather, the challenge is to determine

whether a conviction under a non-categorical state statute was

clearly based on facts that meet the federal generic definition

of the crime. See Taylor, 495 U.S. at 600-02; Shepard, 544

U.S. at 25; Snellenberger, 548 F.3d at 701. Here, the docket

sheet, like the minute order in Snellenberger, has the requisite

reliability to be considered and allows for no reasonable con-

clusion other than that Strickland pleaded guilty to sexual

abuse of a child. Nothing more is required by statute or case

law.8 Accordingly, the district court’s enhancement of Strick-

land’s sentence is AFFIRMED.

7

Section 11-704(a) requires the registration of “a child sexual offender,”

an “offender,” a “sexually violent offender” and a “sexually violent preda-

tor.” Strickland was not alleged to be a “sexually violent offender” or a

“sexually violent predator.” Accordingly, the registration requirement was

premised on Strickland being a “child sexual offender” unless there is

some plausible argument that he might have been an “offender,” and that

an “offender” might include a person who had not engaged in abusive sex-

ual conduct involving a minor. There is no such argument because under

the definition of “offender” set forth in Section 11-701(h) of the Maryland

Code of Criminal Procedures, the only definitions of “offender” that fit the

charge against Strickland involve abusive sexual conduct with a minor.

8

We express no opinion on the propriety of the district court’s consider-

ation of Strickland’s sex offender registration forms.

5782 UNITED STATES v. STRICKLAND

KOZINSKI, Chief Judge, concurring:

While I concur with much of the majority opinion, I agree

with Judge Reinhardt that the failure to decide whether the

district court erred in relying on Strickland’s sexual offender

registration forms is both wrong and unfortunate. It’s wrong

for the reasons given by Judge Reinhardt and one more: The

district judge below relied on the registration forms in finding

that Strickland had been convicted of a predicate offense

under 18 U.S.C. § 2252A(b)(1); we don’t know whether he

would have made the same finding in the absence of the

forms. If his reliance on the registration forms was improper

as a matter of law, we should remand and give the district

judge an opportunity to make findings without relying on any

improper documents.

Which brings me to why it’s unfortunate that the majority

doesn’t address the registration forms. As this case illustrates,

obtaining reliable information about past convictions—some

going back many years or decades—can be difficult. The evi-

dence that the government presented here is marginal. The

docket sheet, on which the majority relies in affirming the dis-

trict court, suffers from the defects Judge Berzon points out

in her dissent. Berzon Dissent at 5793-94. Had Strickland pre-

served the argument that the lack of authentication or certifi-

cation barred the district court from relying on the docket

sheet, I’m not at all sure we could affirm, as there is almost

nothing in the record about what this document is or where it

came from. But Strickland waived that argument. In his open-

ing brief he refers to the document as “an uncertified State

court docket sheet.” He thus concedes it’s a docket sheet but

doesn’t argue that the district court erred in relying on it

because it’s uncertified. The government’s brief, naturally,

says nothing on this point. This important issue should be

decided in a case where the parties actually brief it so we can

make an informed decision. I would therefore deem that

objection waived. See, e.g., Dream Games of Ariz., Inc. v. PC

Onsite, 561 F.3d 983, 994-95 (9th Cir. 2009).

UNITED STATES v. STRICKLAND 5783

That said, it would certainly have been better if the govern-

ment had produced the “agreed statement of facts” that Judge

Berzon refers to in her dissent. Berzon Dissent at 5795. This

document sounds like it falls squarely within the ambit of

Shepard v. United States, 544 U.S. 92 (2005), and would have

eliminated all cavil as to whether Strickland was convicted of

a sex crime. Judge Berzon accuses the government of sloth,

but I suspect the problem is actually one of unavailability:

The case materials pertaining to Strickland’s 2002 Maryland

conviction may not be available at all, or available only with

great difficulty. This may be typical of many cases across the

country, particularly those from the era before electronic case

filing. The kind of evidence the Supreme Court described in

Shepard, 544 U.S. at 26—the charging document, the terms

of a plea agreement, the transcript of a colloquy in which

defendant confirms the factual basis for his plea—may not be

available for many convictions that serve as predicates for

federal sentencing enhancements.

Hence the significance of sex offender registration forms:

They are ubiquitous, locally available and frequently updated.

Most importantly, they are personally signed by defendants

pursuant to a legal obligation backed by criminal penalties.

The government here was able to come up with three such

forms signed by Strickland over the course of two years, all

certifying that he had been convicted of a sex offense. The sex

offender change-of-address form Strickland filed with the

City of Great Falls on August 4, 2006, has an attached data-

base printout that describes his crime as “Maryland Sexual

Child Abuse” and provides the precise date of Strickland’s

sentencing. The Montana Department of Justice form Strick-

land signed on February 8, 2006, notes that Strickland was

sentenced for the Maryland offense in November 2002, and

identifies it as a sexual offense involving Strickland’s 16-

year-old step-son. These documents, when taken together

with the docket sheet, leave no room for doubt that Strickland

was previously convicted of a crime “relating to . . . abusive

5784 UNITED STATES v. STRICKLAND

sexual conduct involving a minor or ward.” 18 U.S.C.

§ 2252A(b)(1).

This kind of problem is sure to arise again, so it’s important

to decide whether sex offender registration forms may be used

to clarify the nature of a prior conviction or guilty plea under

the modified categorical approach of Taylor v. United States,

495 U.S. 575 (1990). By ducking the question, the majority

leaves the field to the dissenters, who present a superficially

plausible argument that the district court’s reliance on such

records violated Shepard, 544 U.S. at 24-26. I present the

contrary view, lest my agreement be inferred from silence.

The most one can say about Shepard is that it doesn’t affir-

matively authorize the use of these registration forms. This

may be because the Shepard majority wanted to limit the Tay-

lor inquiry to a narrow range of judicially-created documents

(as the dissenters here argue), but more likely it’s because the

Court wasn’t thinking about registration forms and other post-

conviction admissions by the defendant. Shepard dealt with

statements made and documents created at the time the plea

was entered and the Court thus had no occasion to address

any admissions made by the defendant at a later point in time.

When Shepard pleaded guilty to his earlier crime, the

police reports were not part of the plea agreement and Shep-

ard therefore did not admit to them by pleading guilty. Nor

did the police reports have any judicial imprimatur; for all we

know the judge who accepted the guilty plea was not even

aware of them and certainly did not adopt them as true. The

Supreme Court therefore held that the police reports couldn’t

be considered in determining the nature of that conviction.

Some of the Court’s reasons involved practical considerations

about avoiding “collateral trials” and “evidentiary disputes.”

Shepard, 544 U.S. at 19-23 & n.4. Equally significant, how-

ever, was the concern that importing a third-party narrative to

which defendant didn’t affirmatively assent would violate the

rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

UNITED STATES v. STRICKLAND 5785

See Shepard, 544 U.S. at 24-26; id. at 26-28 (Thomas, J., con-

curring). The Shepard plurality and Justice Thomas were con-

cerned that the factual reconstruction process would bind

defendants to facts (there, Shepard’s entry into a building)

that they never admitted and that no jury had found beyond

a reasonable doubt.

Our case is materially different. The government here is not

trying to saddle Strickland with facts to which he never

assented. Rather, the government asks us to determine what

facts Strickland did admit. The best evidence of that would be

the agreed factual statement presented with his plea, the plea

colloquy or some similar document contemporaneous with the

plea itself. But almost as good would be Strickland’s own

admission, in open court, that his prior conviction was for

sexually abusing a child, as such an admission complies with

Apprendi. See United States v. Booker, 543 U.S. 220, 244

(2005) (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” (emphasis added)).

Sex offender registration forms are not quite the same as in-

court admissions, but they share many of the same attributes:

They are personally assented to by the defendant; they are

official, formal statements made in an environment where the

necessity of being truthful is likely to be impressed on the

registrant; filling them out is strongly against the registrant’s

personal interest, as being a registered sex offender will likely

make him an outcast in the community; they do not attempt

to reconstruct or re-interpret the facts and circumstances of

the earlier crime, but merely report the prior conviction; and

the registrant is speaking pursuant to an obligation imposed

by law, which requires that the information provided be truth-

ful and accurate.

Some registrants may not seek advice of counsel before

completing a registration form, though I’m certain many do

5786 UNITED STATES v. STRICKLAND

consult lawyers before filling out forms that they must find

oppressive and odious. It’s entirely possible that a registrant

may be mistaken about his obligation to register, though I’m

reasonably confident that—just as people seldom commit tax

errors in the government’s favor—far more people mistakenly

fail to register than those who mistakenly sign up. But this

risk of error, just like that in the minute order we approved in

United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.

2008) (en banc), isn’t fatal. If a defendant is confronted with

a registration form that he signed in error, he can try to amend

the form, see id., or explain the error and present contempora-

neous records showing that he was not actually required to

register as a sex offender. I don’t see what’s unfair or

improper about placing on defendant the burden of showing

that a registration form he signed before a witness, under pen-

alty of law, does not prove what it purports to say on its face.

Judge Berzon argues that the forms in this case “do not

include direct admissions by Strickland,” Berzon Dissent at

5798, because Strickland’s signature generally appeared on

pages of each form different than those containing the most

incriminating information. I don’t see why a signature on the

last page of a multi-page form doesn’t indicate assent to the

entire document. See, e.g., 2 Williston on Contracts § 6:44

(4th ed., West 2009) (“[W]here an offeree signs a document

it is generally held to be bound by the document’s terms, even

if the offeree signs in ignorance of those terms.”). Take the

Montana Department of Justice form, which is only two

pages. On page one it notes that Strickland’s offense was

“sexual” rather than “violent” or “both,” and has a box

labeled “Sex Offender Treatment Status,” showing that Str-

ickland “Completed Treatment” in “April 2005.” And on the

second page, just three lines below Strickland’s signature, it

clearly says that it’s a two-page form, so we know that the

page with Strickland’s signature wasn’t simply attached after-

the-fact. Moreover, Strickland’s signature certifies that he

“understand[s his] duty to register.” By certifying that he

understands his duty to register on a form which expressly

UNITED STATES v. STRICKLAND 5787

predicates that duty on his prior sexual offense, Strickland

clearly acknowledged the sexual nature of his prior convic-

tion.

Judge Berzon’s objection to the use of these forms is, in

any event, a side-show. The question we must decide is

whether sex offender registration forms, in general, may be

relied on by a district court. That these forms are more ambig-

uous than Judge Berzon would prefer is neither here nor there.

Many other defendants will have signed much clearer forms

and the alleged ambiguity of these forms has no bearing on

the larger question of whether such forms are usable at all.

See, e.g., Snellenberger, 548 F.3d at 702 (authorizing the use

of any minute order that “conform[s] to the essential proce-

dures described above”).

In any event, the registration form wouldn’t be sufficient by

itself to support a finding that a defendant had committed the

predicate offense. Under the approach advanced by the gov-

ernment, the form would have to be supported by evidence

from the court of conviction that defendant had, in fact, been

convicted of a crime that could serve as a predicate offense.

The registration form—constituting defendant’s own admis-

sion of the prior offense—could resolve any ambiguity about

what crime he had long ago been convicted of. Such ambigui-

ties are bound to arise with some regularity, depending on the

completeness and efficacy of record-keeping by the thousands

of court systems in the United States. It is unwise to turn our

backs on registration forms as a tool for resolving them.

Unless and until the Supreme Court holds otherwise, I would

hold that district courts may consider these forms, in conjunc-

tion with other evidence, to determine whether a defendant’s

prior conviction is a qualifying predicate offense.

Because the district court here considered Strickland’s reg-

istration forms together with the docket sheet, and the docu-

ments together leave no doubt that his Maryland conviction

was for sexual conduct involving a minor or ward, I would

5788 UNITED STATES v. STRICKLAND

endorse what the district court did here and affirm on that

basis.

THOMAS, Circuit Judge, concurring:

I agree with Judge Berzon that docket sheets, as a general

category, are not inherently reliable and do not qualify as doc-

uments that satisfy the rigorous standard necessary to be used

as conclusive proof of a prior conviction. Shepard v. United

States, 544 U.S. 13, 21 (2005); United States v. Navidad-

Marcos, 367 F.3d 903, 908 (9th Cir. 2004).

However, I am persuaded, under the unique circumstances

of this case, that the tendered evidence was sufficient to prove

that the defendant’s Maryland conviction for child abuse was

a predicate offense under 18 U.S.C. § 2252A(b). Therefore, I

concur in Judge Callahan’s majority opinion.

The majority opinion does not reach the question as to

whether the registration documents qualify as judicially

noticeable documents sufficient to satisfy the requirements of

Shepard and its progeny. If I were to reach that question, I

would agree with Judge Berzon that they do not. Therefore,

I join the observations contained in Section III of Judge Ber-

zon’s dissent, although it does not affect my joinder of the

majority opinion.

BERZON, Circuit Judge, with whom Judges SCHROEDER

and REINHARDT join, and with whom Judge THOMAS

joins as to Part III, dissenting:

Dennis Strickland was convicted of receipt and possession

of child pornography. He was sentenced pursuant to 18

U.S.C. § 2252A, which permits a sentencing enhancement if

UNITED STATES v. STRICKLAND 5789

the defendant has a prior state conviction “relating to aggra-

vated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor.” Id. Strickland’s prior conviction was for

child abuse, an offense that, under Maryland law, encom-

passes both physical and sexual abuse of a child. It is not cate-

gorically a predicate offense under § 2252A.

The majority now holds that a Maryland state court docu-

ment is adequate to prove that Strickland was convicted of a

sexual offense. The majority concludes, essentially, that what

it refers to as the “docket sheet” in Strickland’s Maryland

conviction is “close enough” to the minute order we approved

in United States v. Snellenberger, 548 F.3d 699, 701-2 (9th

Cir. 2008), to form the basis for judicial enhancement of his

criminal sentence. This conclusion is wrong for three reasons:

First, docket sheets, as a general category, are not inherently

reliable. Second, the Maryland statutes and court rules cited

by the majority do not demonstrate that docket sheets created

in Maryland state courts meet the Snellenberger criteria.

Third, the specific document the majority describes as a

docket sheet and views as conclusively proving that Strick-

land committed a sexual offense is actually a document of

some other kind, was not created at the time of his guilty plea,

and does not contain a description of the offense of conviction

that unambiguously meets the federal criteria. Because the

document relied upon by the majority does not satisfy the “de-

mand for certainty when identifying a generic offense”

required by Shepard v. United States, 544 U.S. 13, 21 (2005),

I dissent.

I.

As the Supreme Court explained in Apprendi v. New Jer-

sey, 530 U.S. 466, 490 (2000), “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” This rule

is founded on “constitutional protections of surpassing impor-

5790 UNITED STATES v. STRICKLAND

tance,” namely the Sixth Amendment right to trial by an

impartial jury. Id. at 476.

Because the constitutional rights at stake are so central in

criminal cases, “documents used to satisfy a modified-

categorical analysis must meet a rigorous standard.” United

States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004)

(internal quotation omitted). The record must “unequivocally

establish[ ]” that the defendant was convicted of the generi-

cally defined crime. Id. The sentencing court may determine

whether a guilty plea necessarily required the defendant to

admit the elements of the generic offense by reference to “the

charging document . . . a plea agreement or transcript of collo-

quy between judge and defendant . . . or [ ] some comparable

judicial record.” Shepard, 544 U.S. at 26.

Docket sheets are, as a general proposition, simply not as

reliable as the documents approved in Shepard. Nor are they

as reliable as the minute order we approved in Snellenberger.

Minute orders are prepared at the time of the judicial action

in question by a clerk who is present and observing the pro-

ceedings. Docket sheet entries are often made after the fact

based on review of pertinent judicial documents. The process

of transposing information onto docket sheets can result in

error far more frequently than contemporaneous recording of

judicial events by a direct observer.

Indeed, errors on docket sheets are so common that courts

often assume discrepancies between conflicting documents

have resulted from a clerical error on a docket sheet entry. As

we have recognized, elementary oversights in data entry can

result in unconstitutional deprivations of liberty. See Oviatt v.

Pearce, 954 F.2d 1470, 1476 n.4 (9th Cir. 1992) (holding that

a county jail system could be held liable under 42 U.S.C.

§ 1983 for failing to “have some check on the ability of a sin-

gle clerical error to result in prolonged incarceration without

arraignment, a bail hearing, or a trial” after the plaintiff was

held for 114 days without trial).

UNITED STATES v. STRICKLAND 5791

The case law is replete with references to docket sheet

errors involving dates on which judgments or motions were

filed. See Voravongsa v. Wall, 349 F.3d 1, 2 n.2 (1st Cir.

2003); Missouri v. Ring, 86 S.W.3d 481, 481 n.3; Curiel v.

Fleker, 558 F. Supp. 2d 1047, 1052 (C.D. Cal. 2008); Sec.

Exch. Comm’n v. Breed, No. 01 Civ. 7798 (CSH), 2004 WL

1824358, at *8 n.2 (S.D.N.Y. Aug 13, 2004) (“Confusingly,

there appear[ ] to be two errors in the Clerk of the Court’s

docket sheet. . . . Perhaps the lesson to be learned is that attor-

neys should not merely trust the docket sheet to provide nec-

essary deadlines.”); Browning v. Walters, 620 N.E.2d 28, 30

(Ind. Ct. App. 1993); Guardianship of Hurley, 476 N.E.2d

941, 943-44 & n.4 (Mass. 1985) (observing that the docket

sheet reflected that the plaintiff filed a motion to amend his

petition over five months after he actually filed it); Pemiscot

County Mem’l Hosp. v. Bell, 770 S.W.2d 499, 501 (Mo. Ct.

App. 1989) (noting that the docket sheet recorded the notice

of appeal as being filed eighteen days after it was actually

received).

Docket sheets also often contain substantive errors. Stafford

v. Ward, 60 F.3d 668, 669 n.3 (10th Cir. 1995) (assuming that

a missing notation was more likely an error on the docket

sheet than an indication that a record was not transmitted to

state court judges); United States v. Ewing, 445 F.2d 945, 947

n.3 (10th Cir. 1971) (noting that the docket sheet erroneously

indicated that the jury had returned a verdict of not guilty,

leading to the impression that the appellant had been retried

on a count of which he’d been acquitted); Panko v. Eighth

Judicial Dist. Court, 908 P.2d 706, 707 n.2 (Nev. 1995)

(observing that the docket sheet failed to list a real party in

interest); Ferrell v. Wall, 971 A.2d 615, 622 (R.I. 2009) (“The

docket sheet . . . indicates that . . . the motion to reduce appli-

cant’s sentence . . . had been withdrawn . . . . The docket sheet

entry must be in error.”).

Docket errors may also result in records that reflect a con-

viction for a crime other than that to which the defendant pled

5792 UNITED STATES v. STRICKLAND

guilty. In Homan v. Hughes, 708 S.W.2d 449 (Tex. Ct. App.

1986), the court denied relief to a petitioner who challenged

the trial court’s nunc pro tunc adjustment of his conviction

after a significant error was discovered. The clerk’s affidavit

read:

The defendant . . . pled guilty to the offense of

aggravated robbery. . . . The defendant signed his

plea papers . . . reflecting his plea was to aggravated

robbery. For some reason, when I prepared the judg-

ment and sentence in this case, I incorrectly showed

the defendant pled to a reduced charge of robbery. .

. . Subsequently, I discovered the mistake.

Id. at 454 n.4.

In light of the error-prone nature of docket sheets, a district

court could not with certainty rely on one without inspecting

the state statutes and regulations that govern the creation and

maintenance of docket sheets to ensure their accuracy. That

is not what Shepard approved. In any event, the Maryland

rules and statutes on which the majority relies do not establish

that guilty pleas are entered into the docket sheet “at the time

the guilty plea is taken [ ] or shortly afterward.” Snellenber-

ger, 548 F.3d at 702. Nor do Maryland Rule 16-305 or the

Maryland Code provision cited by the majority contain any

reference to the clerk’s duty to enter promptly sentences, con-

victions, or judgments generally. Maryland Rule 8-202(f),

similarly, merely states that “entry” of judgment occurs, for

the purposes of starting the thirty-day period during which

notice of appeal may be filed, “on the day when the clerk of

the lower court first makes a record in writing of the judg-

ment, notice, or order on the file jacket, on a docket within the

file, or in a docket book.” Md. R. 8-202(a), (f). Nothing in this

multifarious provision assures that the entry of judgment is

even made on a docket sheet, much less that the docket sheet

is accurate. Moreover, our approval of the minute order in

Snellenberger hinged on the fact that such orders are created

UNITED STATES v. STRICKLAND 5793

“when judgment upon a conviction is rendered.” 548 F.3d at

701 (quoting Cal. Penal Code § 1207) (brackets omitted).

There is nothing in the Maryland code or court rules prevent-

ing the clerk of the court from recording the conviction

weeks, months, or years after the judgment is rendered.

If there are any states in which the clerk of court’s legal

duties guarantee the accuracy and timely entry of their docket

sheets, Maryland is not among them.

II.

In fact, the particular Maryland document at issue here

proves the fallibility of docket sheets and similar documents.

The information which, according to the majority, proves that

Strickland was convicted of a sexual offense was assuredly

not entered at the time of his conviction. The document

(which I refer to as “the Document” for lack of any indication

of what it actually is) has no heading and seems to have been

generated as a result of a probation revocation proceeding.1

The Document shows, under the heading “Charge and Dispo-

sition Information,” that Strickland’s conviction for child

abuse was entered on November 6, 2002. A segment of the

Document titled “Document Tracking” contains, among other

materials reporting the content of related documents, “docket

information” as of November 4, 2005, and is headed “Dock-

et.” This section includes, after the date November 6, 2002,

the statements “Registration required under Criminal Proce-

dure Sec. 11-704. Defendant to register DNA. Defendant is a

child sex offender.” The Document also bears the notation

“[c]ase data converted on 11/04/2005.” This note suggests

that the November 4, 2005 entry includes information ostensi-

bly reproduced from the docket sheet in Strickland’s 2002

conviction, but it does not with the required “certainty,” Shep-

ard, 544 U.S. at 21, establish that the “case data” was “con-

verted” from a document created at the time of the waiver of

1

A copy of the Document is attached to this dissent.

5794 UNITED STATES v. STRICKLAND

jury trial, conviction, or sentencing, or that it was reproduced

accurately.

Moreover, none of several entries for November 2002 that

appear under “Docket” on the 2005 Document states unequiv-

ocally that the conviction was for sexual abuse. One entry

does state that “Registration is required” under the sex

offender statute and that “Defendant is a child sex offender.”

Neither comment directly ties the registration requirement or

the status to the crime of conviction.

In short, it appears the only information indicating that the

child abuse conviction was for a sexual offense was entered

on the Document three years after the guilty plea, conviction

and sentencing. It would be plausible to infer that the 2005

“Docket” entry describing events of November 6, 2002 was

created by cutting and pasting a docket sheet entry that was

created earlier. “Inferences, however, are insufficient under

the modified categorical approach.” Cisneros-Perez v. Gonza-

lez, 465 F.3d 386, 393 (9th Cir. 2006). The Document also

indicates that Strickland was at some point convicted of a sex-

ual offense. But the sentencing judge necessarily had to draw

an inference from the confusing and ambiguous Document to

find as a “fact” that the particular conviction in question was

for child sexual abuse. By doing so, the district court compro-

mised Strickland’s constitutional rights, as protected under

Apprendi, to a trial by jury of uncertain facts essential to the

sentence.

It is worth noting, in this connection, that Almendarez-

Torres v. United States, 523 U.S. 224, 243-47 (1998), created

a narrow exception whereby the fact of a prior conviction

need not be alleged in an indictment or proven to a jury

beyond a reasonable doubt. Subsequent cases illustrate that

Almendarez-Torres stands on shaky constitutional ground,

giving rise to an obligation strictly to police, rather than to

expand, the parameters of that exception lest it topple as

entirely without basis. See Shepard, 544 U.S. at 25 (caution-

UNITED STATES v. STRICKLAND 5795

ing that Almendarez-Torres does not permit a sentencing

judge to resolve any fact that “can be described as a fact about

a prior conviction”); Apprendi, 530 U.S. at 487, 489 (charac-

terizing Almendarez-Torres as “arguabl[y] . . . incorrectly

decided” and “at best an exceptional departure from” the

Court’s sentencing jurisprudence); United States v. Booker,

543 U.S. 220, 244 (2005) (reaffirming Apprendi); Butler v.

Curry, 528 F.3d 624, 643-45 (9th Cir. 2008) (emphasizing

that the “exception applies only to facts directly reflected in

the documents of conviction, not to secondary facts that are

derived or inferred from . . the conviction documents” or to

“documents that were not developed as a result of [a process

with Sixth Amendment safeguards]”) (internal quotation

omitted). We have accordingly held that Apprendi precludes

us from broadening Almendarez-Torres to encompass past

juvenile convictions, United States v. Tighe, 266 F.3d 1187,

1194-95 (9th Cir. 2001); removal proceedings, United States

v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006);

or a defendant’s probation status, Butler, 528 F.3d at 645.

The same principles dictate that a sentencing court may not

“read[ ] between the lines” to establish a predicate conviction.

United States v. Sandoval-Venegas, 292 F.3d 1101, 1109 (9th

Cir. 2002). Supreme Court precedent “demand[s] certainty”

as to the factual basis for the earlier conviction, Shepard, 544

U.S. at 21, as it must if the Almendarez-Torres prior convic-

tions exception to the Apprendi requirements is to survive.

The Document here does not provide the requisite unequivo-

cal proof.

I note that the inadequacy of the Document supplied by the

prosecution was the result of lack of diligence, not unavaila-

bility of unequivocal proof. The 2002 conviction was, accord-

ing to the Document, based on an “agreed statement of facts.”

That statement, assuming it showed that Strickland had com-

mitted child sexual abuse, would presumably have sufficed

under Shepard.

5796 UNITED STATES v. STRICKLAND

III.

The sentencing court in this case relied not only on the

Document but also on two sexual offender registration forms.

See United States v. Strickland, 556 F.3d 1069, 1071 (9th Cir.

2009). These non-judicial forms clearly fall outside the scope

of the judicial documents approved in Shepard and Snellen-

berger.

Shepard limits the use of documentary evidence to “conclu-

sive records made or used in adjudicating guilt,” Shepard, 544

U.S. at 21. Shepard went on to explain that the requirement

that “evidence of generic conviction be confined to the

records of the convicting court approaching the certainty of

the record of conviction in a generic crime State . . . was the

heart of the decision” in Taylor v. United States, 495 U.S. 575

(1990), the progenitor of the modified categorical approach to

prior convictions. Shepard, 544 U.S at 23.

A sex offender registration form is not a “record[ ] of the

convicting court.” It is filled out by a lay person, not by an

official familiar with court proceedings; often, as here, it post-

dates the conviction by a number of years; and it may be filled

out in connection with a non-judicial matter in a distant juris-

diction. A sentencing court simply may not rely on non-

judicial documents signed by a defendant for a non-judicial

purpose years later.

Even if Strickland’s signatures on the registration forms

were viewed as admissions that he was convicted of a sexual

offense, admissions that are not part of the record of convic-

tion or the sentencing record cannot establish the crime of

conviction. Cisneros-Perez, 465 F.3d at 393. Post-conviction

admissions in sex offender registration forms, made outside

the judicial process and likely made without the assistance of

counsel, do not dictate the legal definition of the offense.

Moreover, the registration forms in the record in this case

are not fairly read as admissions by Strickland himself. One

UNITED STATES v. STRICKLAND 5797

form is headed “Montana Department of Justice Sexual and

Violent Offender Registration Form,” followed by the admo-

nition “Form must be completed by the agency.” It is that

form, apparently filled out by a state agency and not by Str-

ickland, that checks “sexual” with regard to “offense type.” It

then goes on to record the Maryland offense as “2nd Degree

Assault,” not as a generic sexual offense. Although the form

also identifies the “victim” as a 16-year-old step-son, that

information goes to the underlying facts of the case, rather

than the nature of the conviction, and so is not informative on

the relevant question: what was Strickland convicted of. On

an attached page, Strickland initialed various advisements and

then signed. But the initialed advisements pertain to both sex-

ual and violent offenses. So Strickland himself did not admit

whether his offense was one or the other.

Strickland also signed a form from the City of Great Falls

entitled “Change of Address for Sex Offender — None.” That

strangely titled form, on the page signed by Strickland, does

not identify the particular offense triggering the signature.

There is, as Chief Judge Kozinski notes, an attached data

printout from the Montana Department of Justice. That print-

out says that the conviction was under a “non-Montana stat-

ute” specified as “Maryland Sexual Child Abuse.” No

statutory number or source of information is stated — and, of

course, there was no “Maryland Sexual Child Abuse” statute

at the relevant time, only a more general child abuse statute.

So the printout is both inaccurate and not attested to by Str-

ickland. We are left with the odd title of the Change of

Address form, with nothing at all in Strickland’s own words,

as indicating what Strickland in fact signed.

Finally, the third form Strickland signed was a “Sex and

Kidnapping Offender Registration Notification” from King

County, Washington. The form contains three-and-a-half

dense pages of instruction and covers offenses, including kid-

napping, that are not sexual offenses. All Strickland signed

was the statement that he “ha[s] read or had read to me and

5798 UNITED STATES v. STRICKLAND

received a copy of the Registration Notification, thereby

informing me of the registration requirements.” Nothing in

that form indicates that Strickland was admitting to child sex-

ual abuse.

The upshot is that even if these long-after-the fact forms

could be relevant to the question of what Strickland was con-

victed of — which, under Shepard they cannot — they are

ambiguous and partially inaccurate, do not include direct

admissions by Strickland, and require judicial inference and

reading between the lines before they can be interpreted as

Chief Judge Kozinski would interpret them. Again,

“[i]nferences, however, are insufficient under the modified

categorical approach.” Cisneros-Perez v. Gonzalez, 465 F.3d

386, 393 (9th Cir. 2006).

That the judge felt compelled to consider the registration

forms to buttress the information in the docket sheet indicates

that he doubted the reliability of the docket sheet. Yet, those

forms cannot serve as a basis in whole or in part for the sen-

tencing enhancement, as they lack the requisites acceptable to

meet the exceedingly narrow exception to Apprendi for

unequivocally established prior convictions.

CONCLUSION

If Strickland was actually convicted of child sexual abuse,

the government could have introduced the charging docu-

ments, agreed statement of facts, or other conviction records

approved under Shepard to show that fact. The government

instead offered several unreliable documents that do not,

alone or in tandem, unequivocally establish the fact that Str-

ickland was convicted of a sexual offense. The majority opin-

ion, by permitting trial courts to “go[ ] beyond conclusive

records made or used in adjudicating guilt,” Shepard, 544

U.S. at 21, erodes the constitutional protections at the heart of

our system of criminal adjudication.

UNITED STATES v. STRICKLAND 5805

REINHARDT, Circuit Judge, dissenting:

I concur in Judge Berzon’s dissent. I write separately to

register my strong objection to the majority’s failure to rule

upon the issue of the Montana sex offender registration forms.

The three-judge panel erroneously relied on those forms in

determining that Strickland’s prior child abuse conviction

constituted a sexual offense. We took this case en banc to

decide whether the forms at issue and similar extra-judicial

forms fit within the narrow category of documents that may

be considered in determining whether a past conviction falls

within a particular category of offense. As Judge Berzon per-

suasively explains, they do not. In my view, to fail entirely to

address the issue that caused the court to go en banc consti-

tutes an abuse of the en banc process. It allows future district

courts and future panels of our court to repeat the Strickland

panel’s error, resulting in erroneous decisions which could

easily be avoided by resolving the issue in this proceeding.

The issue is not a difficult one. Although the majority

explicitly declines to reach it, the four dissenting judges agree

that the forms may not be considered and there is no indica-

tion that any judge on the en banc court, other than our icono-

clastic Chief Judge, approves of their use. The majority’s duty

was to resolve the question that caused the court to go en

banc. It should have done so by holding that sex offender reg-

istration forms and similar extra-judicial forms may not be

considered for purposes of the modified categorical approach.

Instead, by avoiding the issue, it perpetuates exactly the kind

of unnecessary confusion on an important issue that the en

banc process is designed to avoid. The purpose of an en banc

proceeding is not simply to determine whether a result in a

particular case is correct, nor is an en banc court convened

simply to second guess a three-judge panel. The reason for

invoking the en banc process is to maintain the consistency of

the law of the circuit and to resolve issues of exceptional

importance. Fed. R. App. P. 35. Here, the en banc court fails

in its essential obligation.