Luis Juarez Alvarado v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS FELIPE JUAREZ ALVARADO, No. 10-71236

Petitioner,

Agency No.

v. A017-929-244

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 4, 2014—Seattle, Washington

Filed July 23, 2014

Before: Raymond C. Fisher, Ronald M. Gould

and Morgan B. Christen, Circuit Judges.

Opinion by Judge Fisher

2 JUAREZ ALVARADO V. HOLDER

SUMMARY*

Immigration

The panel dismissed in part and denied in part Luis Felipe

Juarez Alvarado’s petition for review of the Board of

Immigration Appeals’ decision finding him removable

because his conviction for attempted possession of a

dangerous drug, in violation of Arizona Revised Statute

§ 13-3407(A)(1), constituted a violation of state law relating

to a controlled substance.

The panel dismissed in part for lack of jurisdiction,

holding that Alvarado waived before the BIA his argument

that Arizona’s attempt statute is categorically broader than

the federal generic definition. The panel found that, even

construed liberally, his pro se brief to the BIA did not raise a

general argument about attempt, and that neither the IJ nor

the BIA addressed the attempt element of his conviction. The

panel also held that Alvarado was not excused from the

exhaustion requirement pursuant to 8 U.S.C. § 1252(d)(1),

because his argument was not so entirely foreclosed that no

remedies were available as of right before the agency.

The panel also denied in part, holding under the modified

categorical approach that the government met its burden to

prove removability based on attempted possession of

methamphetamine, a controlled substance offense. The panel

held that although it could not consider the indictment

because the count as originally charged was dismissed and

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JUAREZ ALVARADO V. HOLDER 3

Juarez Alvarado pled to a lesser charge in a modified count,

it could consider a page in the indictment that described the

substance as methamphetamine because the statement was

specifically incorporated into Alvarado’s plea agreement as

the factual basis supporting his guilty plea.

COUNSEL

Miguel A. Estrada and Scott P. Martin (argued), Gibson,

Dunn & Crutcher LLP, Washington, D.C., for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Linda

S. Wernery, Assistant Director, Officer of Immigration

Litigation, Kerry A. Monaco, Trial Attorney, and Jamie M.

Dowd (argued), Trial Attorney, Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C., for Respondent.

OPINION

FISHER, Circuit Judge:

We consider whether the Department of Homeland

Security has met its burden of proving that the petitioner,

Luis Felipe Juarez Alvarado, is removable from the United

States as an alien convicted of a violation of state law relating

to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i).

Juarez Alvarado pled guilty to attempted possession of a

dangerous drug, in violation of Arizona Revised Statute § 13-

3407(A)(1). He argues that this conviction does not establish

his removability for two independent reasons: first, because

Arizona’s attempt statute is categorically broader than the

4 JUAREZ ALVARADO V. HOLDER

federal definition; and second, because the government has

not met its burden of establishing under the modified

categorical approach that his conviction involved a substance

listed in the Controlled Substances Act. We lack jurisdiction

to reach the first argument and are not persuaded by the

second. Accordingly, we dismiss in part and deny in part his

petition for review.1

BACKGROUND

Born in Mexico in 1968, Juarez Alvarado was admitted

into the United States as a legal permanent resident before his

first birthday. He was placed into removal proceedings after

his 2006 conviction for possession of drug paraphernalia, but

an IJ granted his application for cancellation of removal in

December 2007.

In April 2009, an Arizona grand jury indicted Juarez

Alvarado on three counts of drug-related offenses. Count

One, the only count pertinent to this petition, alleged that on

April 19, 2009, he had “knowingly possess[ed] a dangerous

drug, to-wit: methamphetamine, a class four felony,” in

violation of Arizona Revised Statute § 13-3407(A)(1).

Three months later, Juarez Alvarado entered a written

plea agreement, in which he agreed to plead guilty to

“Modified Count One: Attempted possession of a dangerous

drugs [sic], a class five felony, . . . committed on the 19th day

of April, 2009.” In exchange, the agreement provided that

“Count One, as originally charged” and “Counts Two and

Three” would be dismissed. The factual basis section recited:

1

We also dismiss the portion of the petition relating to Juarez

Alvarado’s pro se argument. See infra note 4.

JUAREZ ALVARADO V. HOLDER 5

“Please see the attached description of the statutory elements

and factual basis for the offense(s) to which the defendant is

pleading guilty. The attachment has been prepared by the

defense and signed by the defendant.” The plea agreement is

marked as pages 5–7.

The record also includes an untitled, undated document,

marked as page 8, that was signed by Juarez Alvarado, his

attorney and the prosecutor.2 The document recites the text

of the relevant statutes and further states:

On April 19, 2009, I, Luis Felipe Juarez-

Alvarado, was stopped for a traffic violation.

I had a suspended driver’s license at the time

and was placed under arrest. My vehicle was

searched, and approximately 4.5 grams of

methamphetamine was found. When asked, I

stated that I paid about $50 for the bag of

methamphetamine.

At the bottom of the page is a stamp, signed by the deputy

clerk on August 17, 2009, certifying the document to be “a

true copy of the original on file” in Juarez Alvarado’s

criminal case. Juarez Alvarado contends this document “was

not part of the plea agreement” and “seems to have been

added later, without [his] knowledge or consent.”

Juarez Alvarado appeared in court to enter his guilty plea

on August 13, 2009. The record does not include a transcript

of this proceeding. The court entered a judgment of

conviction, finding Juarez Alvarado “guilty of the crime of

Modified Count One, Attempted Possession of Dangerous

2

This document is attached as an appendix to this opinion.

6 JUAREZ ALVARADO V. HOLDER

Drugs, a Class Five Felony,” and sentencing him to 48

months of intensive probation.

Two weeks later, the Department of Homeland Security

issued Juarez Alvarado a Notice to Appear, charging him

with removability under 8 U.S.C. § 1227(a)(2)(B)(i), based

on his conviction for a controlled substance offense. Juarez

Alvarado, who proceeded pro se throughout administrative

proceedings, denied removability and filed a motion to

terminate the removal proceedings, contending that his

conviction was not “categorically a conviction relating to a

substance covered by the CSA,” and “DHS has not met its

burden of proving the substance for which he was convicted

is covered by the CSA.” The IJ denied his motion,

acknowledging that the controlled substance was not

specified in the judgment, but concluding that the drug was

identified as methamphetamine in “part of th[e] plea

agreement.” After determining that Juarez Alvarado was not

eligible for cancellation of removal or any other forms of

relief, the IJ ordered him removed to Mexico. On appeal, the

BIA affirmed the IJ’s decision without written opinion.

STANDARD OF REVIEW

Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to

review questions of law when a final order of removal is

predicated on a criminal conviction. See Mielewczyk v.

Holder, 575 F.3d 992, 994 (9th Cir. 2009). Whether a

particular conviction constitutes a removable offense is a

question of law that we review de novo. See id. Where, as

here, “the BIA summarily affirms the IJ’s decision, we

review the IJ’s decision as the final agency action.” Pagayon

v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011) (quoting

JUAREZ ALVARADO V. HOLDER 7

Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006))

(internal quotation marks omitted).

DISCUSSION

We analyze whether a conviction qualifies as a predicate

offense for removal purposes by employing the framework

the Supreme Court constructed in Taylor v. United States,

495 U.S. 575 (1990). See Mielewczyk, 575 F.3d at 994. We

begin by applying the “categorical approach, examining only

the statutory definition of the crime to determine whether the

state statute of conviction renders an alien removable under

the statute of removal.” Id. We next apply a “modified

categorical approach” if the state statute of conviction is

broader than the generic federal offense and is also

“divisible,” meaning that it “comprises multiple, alternative

versions of the crime,” at least one of which “correspond[s]

to the generic offense.” Descamps v. United States, 133 S.

Ct. 2276, 2284–85 (2013).3 Under the modified categorical

approach, we “consider a limited class of judicially noticeable

documents to determine whether the applicable alternative . . .

was the basis of the conviction.” United States v. Gonzalez-

Monterroso, 745 F.3d 1237, 1241 (9th Cir. 2014).

3

Throughout this opinion, we rely on cases arising out of the criminal

sentencing context, rather than the immigration context. “[W]here a

statute ‘has both criminal and noncriminal applications,’ the statute should

be consistently interpreted in both criminal and noncriminal, i.e.,

immigration, applications.” Martinez-Perez v. Gonzales, 417 F.3d 1022,

1028 n.3 (9th Cir. 2005) (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n.8

(2004)), abrogated on other grounds by United States v. Snellenberger,

548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam), abrogated on other

grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

8 JUAREZ ALVARADO V. HOLDER

Juarez Alvarado raises two challenges to the IJ’s

determination that his conviction for attempted possession of

a dangerous drug is a removable controlled substance

offense.4 First, he contends that the Arizona definition of

attempt is categorically broader than the federal definition.

He acknowledges that we have previously held “that the

Arizona and federal definitions of attempt are coextensive,”

United States v. Taylor, 529 F.3d 1232, 1234 (9th Cir. 2008),

but argues that an intervening unpublished Arizona state court

of appeals opinion, State v. Garcia, No. 2 CA-CR 2008-0020,

2009 WL 104639 (Ariz. Ct. App. Jan. 15, 2009), warrants

revisiting that decision. Second, he argues that, under the

modified categorical approach, the government failed to

prove that his Arizona conviction was for a substance listed

in the Controlled Substances Act. See S-Yong v. Holder,

600 F.3d 1028, 1034 (9th Cir. 2010); see also 21 U.S.C.

§ 802(6); 21 C.F.R. §§ 1308.11–15. We address each

argument in turn.

4

Juarez Alvarado also filed a pro se brief making a third argument: that

his plea was never reviewed or accepted by the trial judge and therefore

the government failed to prove he has been “convicted” of any offense

under the Immigration and Nationality Act. Juarez Alvarado arguably

raised this issue in his notice of appeal to the BIA, which contended that

“the DHS has failed to meet its evidentiary burden to prove the facts of

allege Conviction.” He did not, however, raise this issue in his brief

before the BIA. We therefore lack jurisdiction to review this unexhausted

issue, and we dismiss this portion of the petition. See Abebe v. Mukasey,

554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding that

when a petitioner does not file a brief, “the notice of appeal serves in lieu

of a brief, and he will be deemed to have exhausted all issues raised

therein,” but that “when a petitioner does file a brief,” he will “be deemed

to have exhausted only those issues he raised and argued in his brief

before the BIA” (emphasis added)).

JUAREZ ALVARADO V. HOLDER 9

A.

Before we can reach the merits of Juarez Alavardo’s

attempt argument, we must determine whether it was properly

exhausted. Generally, 8 U.S.C. § 1252(d)(1) “mandates

exhaustion and therefore . . . bars us, for lack of subject-

matter jurisdiction, from reaching the merits of a legal claim

not presented in administrative proceedings below.” Barron

v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).5 We conclude

5

We note that some circuits have held that issue exhaustion, as opposed

to exhaustion of administrative remedies, is not a statutory jurisdictional

requirement, but a judicially created case processing rule, allowing courts

the “discretion” to “choose to review [petitioners’] arguments not

previously made to the BIA.” Lin Zhong v. U.S. Dep’t of Justice,

480 F.3d 104, 118–22 (2d Cir. 2006) (holding “that 8 U.S.C. § 1252(d)(1)

does not make issue exhaustion a statutory jurisdictional requirement”);

see also, e.g., Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010) (holding

that the requirement that a petitioner “first to present to the Board any

arguments that lie within its power to address” is not “a jurisdictional rule

in the strict sense,” but is “a case-processing rule that limits the arguments

available to an alien in this court when those arguments have not been

raised properly at the agency level”); Mambwe v. Holder, 572 F.3d 540,

550 (8th Cir. 2009) (noting that “[t]here is a split of authority in this

circuit” about whether issue exhaustion is a statutory jurisdictional

requirement).

Our precedent, however, has squarely held that issue exhaustion is a

jurisdictional requirement. See Sola v. Holder, 720 F.3d 1134, 1135 (9th

Cir. 2013) (per curiam) (“A petitioner’s failure to raise an issue before the

BIA generally constitutes a failure to exhaust, thus depriving this court of

jurisdiction to consider the issue.”); see also, e.g., Kinisu v. Holder,

721 F.3d 29, 34 (1st Cir. 2013) (“The law of this circuit is clear that, if a

petitioner fails to press an argument before the BIA, the petitioner has not

exhausted [his] administrative remedies as to that issue, which, in turn,

forecloses this court from exercising jurisdiction over [the issue].”

(alterations in original) (quoting Chhay v. Mukasey, 540 F.3d 1, 5–6 (1st

Cir. 2008)) (internal quotation marks omitted)); Ni v. Holder, 613 F.3d

10 JUAREZ ALVARADO V. HOLDER

that because Juarez Alvarado did not sufficiently exhaust his

argument that the Arizona definition of attempt is

categorically broader than the federal generic definition, we

lack jurisdiction to reach this issue.

Juarez Alvarado contends that he sufficiently exhausted

his attempt argument by arguing that his state law conviction

was not categorically a removable controlled substance

offense under 8 U.S.C. § 1227(a)(2)(B)(i). Although “[a]

petitioner need not . . . raise [his] precise argument” in

administrative proceedings, Vizcarra-Ayala v. Mukasey,

514 F.3d 870, 873 (9th Cir. 2008), he “cannot satisfy the

exhaustion requirement by making a general challenge to the

IJ’s decision, but, rather, must specify which issues form the

basis of the appeal,” Zara v. Ashcroft, 383 F.3d 927, 930 (9th

Cir. 2004). Juarez Alvarado’s only argument in his brief

before the BIA concerned the sufficiency of the government’s

proof that the controlled substance involved in his conviction

was methamphetamine. See Abebe v. Mukasey, 554 F.3d

1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding

that when a petitioner files a brief before the BIA, he is

deemed to have exhausted only the issues raised and argued

in that brief). Even liberally construing Juarez Alvarado’s

pro se claims, see Vizcarra-Ayala, 514 F.3d at 873, his brief

did not raise a “general argument” about attempt. See

Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th

Cir. 2007). Moreover, neither the IJ nor the BIA addressed

415, 431 (4th Cir. 2010) (holding that because the petitioner “failed to

exhaust his administrative remedies with regard to this issue,” the court

“lack[ed] jurisdiction to entertain it”); Lin v. Att’y Gen. of the U.S., 543

F.3d 114, 120 n.6 (3d Cir. 2008) (noting that although “there is reason to

cast doubt upon the continuing validity of our precedent holding that issue

exhaustion is a jurisdictional rule, short of a review en banc, we must

dutifully apply that precedent”).

JUAREZ ALVARADO V. HOLDER 11

the attempt element of his conviction. See Vizcarra-Ayala,

514 F.3d at 874 (holding that “claims addressed on the merits

by the BIA are exhausted”). Accordingly, Juarez Alvarado

failed to exhaust this issue because his argument regarding

the controlled substance underlying his conviction was not

“sufficient to put the BIA on notice that he was challenging”

the categorical match between the Arizona attempt statute and

the federal generic attempt definition, and the agency did not

have “an opportunity to pass on this issue.” Zhang v.

Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).

Juarez Alvarado argues in the alternative that, even if he

failed to exhaust his attempt argument, we may nevertheless

reach its merits because the argument was “so entirely

foreclosed . . . that no remedies [were] ‘available . . . as of

right’ with regard to [it] before IJs and the BIA.” Sun v.

Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004) (quoting 8 U.S.C.

§ 1252(d)(1)).6 Under 8 U.S.C. § 1252(d)(1), a petitioner

need only exhaust all administrative remedies available “as

of right.” Sun, 370 F.3d at 941. A remedy is available as of

right only when the agency can “give unencumbered

consideration to whether relief should be granted.” Id. at 942.

Accordingly, if an issue is entirely foreclosed, such that the

agency cannot give it unencumbered consideration, it is not

available as of right and the statute does not require it to be

exhausted, although “prudential exhaustion requirements still

apply.” Id.

6

Although Sun involved a habeas petition, and this cases involves direct

review, Sun held that the exhaustion requirement in 8 U.S.C. § 1252(d)(1),

which by its terms applies to judicial review over “final order[s] of

removal,” also applies to habeas petitions. See 370 F.3d at 941. Sun’s

interpretation of the scope of § 1252(d)(1) therefore applies with equal

force to this context.

12 JUAREZ ALVARADO V. HOLDER

Juarez Alvarado specifically argues that because the BIA

was bound by our conclusion in Taylor that “Arizona’s

definition of attempt is coextensive with the federal

definition,” 529 F.3d at 1238, it could not have given

unencumbered consideration to his attempt argument. See In

re Sanudo, 23 I. & N. Dec. 968, 973–74 (B.I.A. 2006)

(holding that the Ninth Circuit’s determination that battery

under California Penal Code § 242 does not categorically

qualify as a crime of violence “is binding on this Board and

the Immigration Judges in cases arising within the

jurisdiction of the Ninth Circuit”); see also Jama v.

Immigration & Customs Enforcement, 543 U.S. 335, 350 n.10

(2005) (“With rare exceptions, the BIA follows the law of the

circuit in which an individual case arises . . . .” (citations

omitted)).

Although the statute may not require exhaustion if the

BIA – bound by our prior precedent – would be precluded

from granting relief, those are not the circumstances here.

Juarez Alvarado’s argument on the merits is that we are no

longer bound by Taylor because Garcia, 2009 WL 104639,

constitutes a “subsequent indication from the [Arizona] courts

that [Taylor]’s interpretation” of state law is “incorrect.”

Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464–65

(9th Cir. 1983); see also FDIC v. McSweeney, 976 F.2d 532,

535 (9th Cir. 1992) (“As a three-judge panel, we are bound

by our prior decisions interpreting state as well as federal law

in the absence of intervening controlling authority.”). This

merits argument falls outside the exhaustion requirement only

if the BIA was foreclosed from determining whether it

remained bound by Taylor in light of Garcia. Accordingly,

Juarez Alvarado’s futility argument rests on the assumption

that the BIA would be required to apply circuit precedent

JUAREZ ALVARADO V. HOLDER 13

even when confronted with a meritorious argument that such

precedent no longer constitutes binding law.7

Our review of BIA practice does not support this

assumption. Instead, we conclude that nothing prevents the

BIA from giving “unencumbered consideration” to whether

it remains bound by our decision in Taylor in light of Garcia.

In other circumstances, the BIA has considered whether

circuit precedent remains binding in light of intervening

events. See, e.g., In re Carachuri-Rosendo, 24 I. & N. Dec.

382, 385–86 & n.3 (B.I.A. 2007) (en banc) (holding that

because the precedent in many circuits “may well be

consistent with” intervening Supreme Court authority, “they

may need to be followed in removal proceedings, unless

altered by the circuits in some respect”); In re Luna-Aranda,

2006 WL 2183478 (B.I.A. June 14, 2006) (holding that

circuit precedent remained binding because it had not been

“reversed or meaningfully distinguished” by this court and

because the subsequent case cited by the respondent did not

apply to the respondent’s case); In re Hernandez-Barrondo,

2005 WL 1104188 (B.I.A. Mar. 25, 2005) (recognizing that

although the BIA ordinarily would be required to follow a

Fifth Circuit case “interpret[ing] the same statute at issue in

this case and conclud[ing] that it does not categorically define

a crime of violence,” the situation presented was “more

complex” because that case had “been materially augmented”

by a “subsequent en banc decision” applying a different

methodology to the analysis of divisible state statutes);

Matter of Mangabat, 14 I. & N. Dec. 75, 77–78 (B.I.A. 1972)

(declining to apply circuit precedent on an issue when the

7

We express no opinion on whether Juarez Alvarado’s merits argument

is actually meritorious, because that is the very issue we lack jurisdiction

to reach.

14 JUAREZ ALVARADO V. HOLDER

Supreme Court granted certiorari on the question, but

terminated the case without rendering a decision on the

merits); cf. Garfias-Rodriguez v. Holder, 702 F.3d 504, 508,

511 (9th Cir. 2012) (en banc) (describing how the BIA

decided it was not bound by circuit precedent when the case

on which that precedent rested had been abrogated).

Similarly, district courts in analogous circumstances apply

the same standard as three-judge panels of this court to decide

whether circuit precedent remains binding after an

intervening decision of a court of last resort. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (per curiam) (en

banc) (holding that when intervening authority from a court

of last resort “is clearly irreconcilable with our prior circuit

authority,” both “a three-judge panel of this court and district

courts should consider themselves bound by the intervening

higher authority and reject the prior opinion of this court as

having been effectively overruled”).

There is accordingly no reason to believe the BIA would

rigidly apply circuit precedent when confronted with a

meritorious argument that such precedent is no longer

binding. It follows that if Juarez Alvarado had raised his

attempt argument during removal proceedings and persuaded

the BIA, the BIA would not have been precluded from

granting him relief. Accordingly, because the BIA could

have given unencumbered consideration to Juarez Alvarado’s

argument that Taylor no longer constitutes binding law in

light of Garcia, we conclude that Juarez Alvarado had an

“administrative remed[y] available . . . as of right,” and

therefore this argument “falls within the scope of

§ 1252(d)(1)’s exhaustion requirement.” Sun, 370 F.3d at

944.

JUAREZ ALVARADO V. HOLDER 15

We acknowledge that prudential considerations may well

militate in favor of reaching the merits of Juarez Alvarado’s

attempt argument. Cf., e.g., Fregozo v. Holder, 576 F.3d

1030, 1036 (9th Cir. 2009) (noting that this “inquiry involves

parsing the elements of a state criminal statute to determine

whether it criminalizes conduct that falls outside of the

generic federal offense, a task for which . . . the BIA lacks

any particular statutory expertise that would be brought to

bear on remand”). Because issue exhaustion is a

jurisdictional requirement, however, see supra note 5, such

considerations may not influence our analysis. Having

concluded that Juarez Alvarado did not exhaust this argument

before the BIA, and that the BIA was not precluded from

giving the argument unencumbered consideration, we are

jurisdictionally barred from reaching the merits.

B.

We therefore turn to Juarez Alvarado’s second contention,

that the government failed to meet its burden of proving

removability because it did not establish that his Arizona

conviction constituted a “controlled substance offense” under

8 U.S.C. § 1227(a)(2)(B)(i). To establish removability under

§ 1227(a)(2)(B)(i), the government must “prove that the

substance underlying an alien’s state law conviction for

possession is one that is covered by Section 102 of the CSA.”

S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2009). The

government does not dispute that Arizona’s definition of

“dangerous drug” is categorically broader than the federal

definition of “controlled substance.” Compare Ariz. Rev.

Stat. § 13-3401(6) (defining “dangerous drug”), with

21 U.S.C. §§ 802(6), 812 (defining “controlled substance”).

We therefore apply the modified categorical approach to

determine whether Juarez was convicted of attempting to

16 JUAREZ ALVARADO V. HOLDER

possess a substance listed in the CSA. See S-Yong, 600 F.3d

at 1034–35.

In the context of a guilty plea, the modified categorical

approach inquires “whether a guilty plea to an offense

defined by a nongeneric statute necessarily admitted elements

of the generic offense.” Young v. Holder, 697 F.3d 976, 983

(9th Cir. 2012) (en banc) (quoting United States v. Aguila-

Montes de Oca, 655 F.3d 915, 921 (9th Cir. 2011) (en banc)

(per curiam)) (internal quotation marks omitted). This

inquiry considers only “the charging instrument, transcript of

the plea colloquy, plea agreement, and comparable judicial

record of this information.” Id. (citing Shepard v. United

States, 544 U.S. 13, 26 (2005)). A statement of the factual

basis supporting the guilty plea “may be considered if

specifically incorporated into the guilty plea or admitted by

a defendant.” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th

Cir. 2005).

The government contends that it met its burden of

showing that Juarez Alvarado’s conviction related to a

substance listed in the CSA by producing two documents

describing the substance as methamphetamine: (1) the

indictment and (2) a written statement, which the government

argues is incorporated in the plea agreement as the “attached

description of the statutory elements and factual basis.” See

21 U.S.C. § 812 scheds. II(c), III(a)(3) (listing

methamphetamine as a controlled substance). Juarez

Alvarado counters that the government cannot rely on the

indictment because the plea agreement dismissed the

pertinent count as originally charged, and maintains that the

written statement was not part of the plea agreement but was

“added later, without [his] knowledge or consent.” Although

we agree with Juarez Alvarado that the government may not

JUAREZ ALVARADO V. HOLDER 17

rely on the reference to methamphetamine in the indictment,

we nevertheless deny his petition because we are convinced

that the disputed page was incorporated into the plea

agreement, making it sufficient to establish that the

conviction was for an offense relating to methamphetamine.

1. Indictment

Count One of the indictment charged Juarez Alvarado

with “knowingly possess[ing] a dangerous drug, to-wit:

Methamphetamine.” In the plea agreement, however, Juarez

Alvarado agreed to plead guilty to “Modified Count One:

Attempted possession of a dangerous drugs [sic], a class five

felony,” and the prosecution agreed to dismiss “Count One,

as originally charged,” as well as the other two counts

charged in the indictment. Similarly, the judgment of

conviction found Juarez Alvarado “guilty of the crime of

Modified Count One, Attempted Possession of Dangerous

Drugs, a Class Five Felony,” and granted the prosecution’s

“Motion to Dismiss Count One of the Indictment as originally

charged and Counts Two and Three of the Indictment.” The

government argues that describing the offense of conviction

as “Modified Count One” refers back to the indictment,

allowing us to incorporate the indictment’s reference to

methamphetamine into the plea agreement.

We disagree. The charging instrument may be considered

“in conjunction with a signed plea agreement,” S-Yong,

600 F.3d at 1035, but may not be considered when the

original charges are dismissed and the defendant pleads guilty

to a different offense. See Cisneros-Perez v. Gonzales, 465

F.3d 386, 393 (9th Cir. 2006) (holding that the petitioner had

not “necessarily pleaded no contest to the allegations in the

original complaint” when “the originally charged crimes were

18 JUAREZ ALVARADO V. HOLDER

dismissed and replaced by a lesser crime”); Martinez-Perez

v. Gonzales, 417 F.3d 1022, 1028–29 (9th Cir. 2005) (holding

that because the petitioner “pled guilty to an offense different

from the one charged in the information,” the criminal

information could not be relied upon for purposes of the

modified categorical approach), abrogated on other grounds

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

2008) (en banc) (per curiam), abrogated on other grounds by

Young, 697 F.3d 976.

Here, Count One, as originally charged, was dismissed,

and Juarez Alvarado pled guilty to “Modified Count One,”

attempted possession of an unspecified dangerous drug. That

one could easily infer that “Modified Count One” arose from

the same conduct as “Count One” is not sufficient. See

Cisneros-Perez, 465 F.3d at 393 (“Inferences . . . are

insufficient under the modified categorical approach.”).

We therefore reject the government’s argument that the

indictment establishes that Juarez Alvarado’s conviction

related to methamphetamine.

2. Written Statement

The government argues it also carried its burden of

proving removability because a written statement describing

the substance as methamphetamine was incorporated into the

plea agreement as the factual basis supporting Juarez

Alvarado’s guilty plea. We agree.

Generally, under the modified categorical approach, “any

enquiry beyond statute and charging document must be

narrowly restricted to implement the object of the statute and

avoid evidentiary disputes.” Shepard, 544 U.S. at 23 n.4.

JUAREZ ALVARADO V. HOLDER 19

However, a statement of the factual basis for a guilty plea

“may be considered if specifically incorporated into the

guilty plea or admitted by a defendant.” Parrilla, 414 F.3d at

1044 (emphasis added); see also Shepard, 544 U.S. at 20

(noting that the modified categorical approach allows

consideration of “the statement of factual basis for the

charge . . . shown by a transcript of plea colloquy or by

written plea agreement presented to the court”).

Here, the written plea agreement specifically incorporated

an “attached description” as the factual basis for Juarez

Alvardo’s guilty plea. It is undisputed that the modified

categorical approach allows such an “attached description” to

be considered. The question is whether the disputed page in

the record actually is that “attached description.”

We confronted a similar question in United States v.

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

guides our analysis. There, the defendant stipulated during

his state court guilty plea colloquy that “‘the police reports

and other documents within the Court file’ contained a factual

basis for the plea, without identifying specifically which

police reports contained the factual basis.” Id. at 1098. The

defendant argued that under the modified categorical

approach, this absence of specificity prevented the court from

looking to the police reports included in the state court file

pertaining to the defendant’s conviction. We rejected that

argument, concluding that the affidavit of a United States

Probation Officer describing his process for obtaining the

state court conviction file allowed us to be “confident that the

police reports obtained from the . . . state court are the only

police reports in that court’s file,” and therefore were the

same reports stipulated to by the defendant. Id. at 1099.

20 JUAREZ ALVARADO V. HOLDER

Here, the record does not contain a transcript from the

change of plea colloquy, but it does contain the plea

agreement’s explicit incorporation of an “attached

description” as the factual basis in the plea agreement, which

is sufficient under the modified categorical approach. See

Parrilla, 414 F.3d at 1044. Moreover, just as the Almazan-

Becerra court was “confident” that the police reports

considered by the district court were the same police reports

stipulated to by the defendant as the factual basis for his

guilty plea, we too are confident, based on circumstantial

evidence in the record, that the disputed page is the attached

description incorporated by reference.

First, the disputed page exactly matches the plea

agreement’s description of the incorporated document. It

describes “the statutory elements and factual basis for the

offense(s) to which the defendant is pleading guilty,” and is

“signed by the defendant.” Second, the state deputy clerk’s

certification stamp appears on the last page of each of the

documents provided to the Department of Homeland Security

from the state court clerk, and it appears on the disputed page.

The stamp therefore supports the inference that the page was

entered into the record as the last page of the plea agreement

and indicates the page was a “description” that was

“attached” to the plea agreement.8 Third, the parties agreed

8

We reject Juarez Alvarado’s contention that the modified categorical

approach does not allow us to draw inferences about a document in the

record of conviction. It is true, as noted above, that we need more than

inferences to conclude that a petitioner was necessarily convicted of a

controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). See

Cisneros-Perez, 465 F.3d at 393; supra section B.1, at page 18. In this

case, however, we are not inferring that Juarez Alvarado’s conviction

related to methamphetamine; rather, we are inferring from circumstantial

evidence that the disputed page, which unequivocally describes the

JUAREZ ALVARADO V. HOLDER 21

at oral argument that the page numbers at the bottom of the

disputed page and the plea agreement were from the state

court record. Because the plea agreement was numbered

pages 5–7 and the disputed page was numbered page 8, the

numbering provides further evidence that the disputed page

was attached to the plea agreement. Finally, as in Almazan-

Becerra, the disputed page “unequivocally describe[d]” the

offense conduct as involving methamphetamine, “and there

is no indication that any other documents in the court file

contradict that description.” 537 F.3d at 1099.

We acknowledge that, as Juarez Alvarado points out, the

disputed page is untitled and undated – indeed, the only date

on the page is in the certification stamp, and that certification

date is four days later than the judgment of conviction and

over a month later than the signatures on the plea agreement.

Had the page included a title specifically incorporated into

the plea agreement, or had the disputed page been dated on

the same date as the plea agreement, we could be even more

confident that the plea agreement incorporated the disputed

page. Based on the circumstantial evidence in the record and

the absence of any contradictory evidence, however, we are

confident that the disputed page is the “attached description”

incorporated by reference into the plea agreement and

stipulated as providing the factual basis for Juarez Alvarado’s

guilty plea.

We therefore hold that the government met its burden of

establishing that Juarez Alvarado was convicted of a

removable controlled substance offense by producing a

factual basis for his guilty plea that described the substance

controlled substance as methamphetamine, is the “attached description”

referenced in the plea agreement.

22 JUAREZ ALVARADO V. HOLDER

as methamphetamine and that was incorporated into his

written plea agreement.

CONCLUSION

Because we lack jurisdiction to reach Juarez Alvarado’s

argument that the Arizona definition of attempt is

categorically broader than the federal generic definition, we

do not address that argument on its merits. We reject Juarez

Alvarado’s argument that the controlled substance at issue in

his Arizona conviction cannot be established by applying the

modified categorical approach. Although the indictment may

not be considered when Count One “as originally charged”

was dismissed and Juarez Alvarado pled guilty to “Modified

Count One,” a lesser charge, we are confident based on

circumstantial evidence that a page describing the substance

as methamphetamine was specifically incorporated into the

plea agreement as the factual basis for Juarez Alvarado’s

guilty plea. We therefore deny in part and dismiss in part

Juarez Alvarado’s petition.

PETITION DENIED IN PART AND DISMISSED IN

PART.

JUAREZ ALVARADO V. HOLDER 23

APPENDIX