Aguilar-Turcios v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIGOBERTO AGUILAR-TURCIOS, 

Petitioner, No. 06-73451

v.

 Agency No.

A045-301-132

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 21, 2012—San Francisco, California

Filed August 15, 2012

Before: William A. Fletcher, Richard A. Paez, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Bybee

9219

9222 AGUILAR-TURCIOS v. HOLDER

COUNSEL

David B. Landry, San Diego, California, for petitioner Rigo-

berto Aguilar-Turcios.

Steven F. Hubacheck, Federal Defenders of San Diego, Inc.,

San Diego, California, amicus for petitioner Rigoberto

Aguilar-Turcios.

AGUILAR-TURCIOS v. HOLDER 9223

Andrew C. MacLachlan (argued), Tony West, Assistant

Attorney General, Donald E. Keener, Deputy Director, Robert

N. Markle, Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C., for

respondent Eric H. Holder Jr., Attorney General.

OPINION

PAEZ, Circuit Judge:

In this petition for review of a decision by the Board of

Immigration Appeals (BIA or Board), we address whether

Petitioner Rigoberto Aguilar-Turcios’ conviction under Arti-

cle 92 of the Uniform Code of Military Justice (UCMJ) quali-

fies as an “aggravated felony” under the modified categorical

approach as explained by our recent en banc decision in

United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th

Cir. 2011). For the reasons discussed below, we conclude that

Aguilar-Turcios’ Article 92 conviction is not an aggravated

felony. We therefore grant the petition and remand this case

to the BIA with instructions to vacate the removal order

against him.

I.

Aguilar-Turcios is a citizen and native of Honduras who

came to the United States as a legal permanent resident (LPR)

in 1996. He married his wife, Vicenta, in June of 2000,

shortly before he enlisted in the United States Marine Corps.

They have at least one child together.

While in the Marine Corps, Aguilar-Turcios used a govern-

ment computer to access pornographic Internet sites and to

download pornographic images of female minors.

Court Martial — 2003

In 2003, Aguilar-Turcios pleaded guilty to and was con-

victed by special court-martial of violating UCMJ Article 92,

9224 AGUILAR-TURCIOS v. HOLDER

which prohibits “violat[ing] or fail[ing] to obey any lawful

general order or regulation,” see 10 U.S.C. § 892(1), and

UCMJ Article 134, which renders punishable, inter alia, “all

conduct of a nature to bring discredit upon the armed forces,”

see id. § 934.

In particular, Aguilar-Turcios pleaded guilty to violating

UCMJ Article 92 as a result of his violation of Department of

Defense (DOD) Directive 5500.7-R § 2-301(a), which pro-

vides that government computers “shall be for official use and

authorized purposes only” and that such “authorized pur-

poses” do not include “uses involving pornography.”

Aguilar-Turcios also pleaded guilty to and was convicted of

bringing discredit upon the armed forces under UCMJ Article

134 by “wrongfully and knowingly possess[ing] visual depic-

tions of minors engaging in sexually explicit conduct, which

conduct was prejudicial to good order and discipline of the

armed forces.”

The Military Judge (MJ) sentenced Aguilar-Turcios to ten

months of confinement, a pay-grade reduction, and a bad-

conduct discharge from the Marine Corps.

Removal Proceedings — 2005

In 2005, the federal government initiated removal proceed-

ings against Aguilar-Turcios, charging him as removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted

of an aggravated felony. In particular, the government alleged

that Aguilar-Turcios’ convictions under UCMJ Articles 92

and 134 amounted to violations of 18 U.S.C. § 2252(a)(2)1

1

Section 2252(a)(2) makes it a felony to “knowingly receive[ ], or dis-

tribute[ ], any visual depiction . . . , or knowingly reproduce[ ] any visual

depiction for distribution . . . , if — (A) the producing of such visual

depiction involves the use of a minor engaging in sexually explicit con-

duct; and (B) such visual depiction is of such conduct.”

AGUILAR-TURCIOS v. HOLDER 9225

and (a)(4),2 both of which address conduct involving child

pornography, and therefore qualified as aggravated felonies

under 8 U.S.C. § 1101(a)(43)(I).3

Agency Decisions — 2006

The Immigration Judge (IJ) assigned to Aguilar-Turcios’

removal proceeding determined that neither the Article 92 nor

the Article 134 violations categorically qualified as an aggra-

vated felony under 8 U.S.C. § 1101(a)(43)(I). Turning to the

modified categorical approach, the IJ first held that Aguilar-

Turcios’ Article 134 conviction was not an aggravated felony

because Article 134 does not refer to child pornography and

he was not persuaded that a charge of specific facts becomes

an element of Article 134.4 The IJ reached the opposite con-

clusion for Aguilar-Turcios’ Article 92 conviction, conclud-

ing that because “child pornography is a subset of

pornography” and Aguilar-Turcios pleaded guilty to a charge

containing the phrase “minor engaging in sexually explicit

conduct”—the same language that appears in § 2252(a)(2)

and (a)(4)—Aguilar-Turcios’ Article 92 conviction qualified

as an aggravated felony.5

Aguilar-Turcios appealed the IJ’s Article 92 decision to the

2

The version of 18 U.S.C. § 2252(a)(4)(A) that was in effect until 2008

made it a felony to “knowingly possess[ ] 1 or more books, magazines,

periodicals, films, video tapes, or other matter which contain any visual

depiction . . . , if — (i) the producing of such visual depiction involves the

use of a minor engaging in sexually explicit conduct; and (ii) such visual

depiction is of such conduct.”

3

Section 1101(a)(43)(I) defines “aggravated felony” as “an offense

described in section 2251, 2251A, or 2252 of Title 18 (relating to child

pornography).”

4

The IJ also commented that “clearly, he was convicted of conduct

which is punishable under 18 U.S.C. [§ ] 2252.”

5

The IJ’s oral decision does not address the fact that the phrase “minor

engaging in sexually explicit conduct” from § 2252(a)(2) and (a)(4) only

appears in the Article 134 charge, not the Article 92 charge.

9226 AGUILAR-TURCIOS v. HOLDER

BIA. The government did not appeal the Article 134 ruling.

The BIA affirmed the IJ’s decision in a per curiam order.

Initial Ninth Circuit Decision — 2009

Aguilar-Turcios petitioned for review of the BIA’s order,

and we granted the petition and remanded the case to the BIA.6

Aguilar-Turcios v. Holder, 582 F.3d 1093, 1094, 1098 (9th

Cir. 2009), withdrawn by 652 F.3d 1236 (9th Cir. 2011). Like

the IJ, we concluded that an Article 92 conviction for violat-

ing DOD Directive 5500.7-R § 2-301(a) is not categorically

an aggravated felony.

We also held that the modified categorical approach did not

apply at all to the analysis of whether Aguilar-Turcios’ Arti-

cle 92 conviction was an aggravated felony. We applied the

so-called “missing element rule” from Navarro-Lopez v. Gon-

zales, 503 F.3d 1063 (9th Cir. 2007) (en banc), which limited

the application of the modified categorical approach to stat-

utes of conviction that are divisible into several crimes and

barred application of the rule where a statute of conviction

was “missing” an element of the generic crime. Concluding

that both Article 92 and DOD Directive 5500.7-R § 2-301(a)

were “missing” the element of “a visual depiction of a minor

engaging in sexually explicit conduct,” we held that the modi-

fied categorical approach did not apply and that Aguilar-

Turcios’ Article 92 conviction was therefore not an aggra-

vated felony.

Judge Bybee dissented, calling into question the validity

and wisdom of the Navarro-Lopez “missing element rule” and

concluding that Aguilar-Turcios’ Article 92 conviction “nec-

6

While Aguilar-Turcios’ appeal was pending before this court, and an

order was in place staying his removal, the government mistakenly

removed Aguilar-Turcios to Honduras. Although his whereabouts were

unknown as of the date of publication of our initial opinion in this case,

his counsel has since been in contact with him via e-mail.

AGUILAR-TURCIOS v. HOLDER 9227

essarily shows that he committed the aggravated felony of

knowing possession of child pornography” because “[t]he

only pornography that Aguilar-Turcios admitted to accessing

on his government computer during the plea colloquy were

the six images of child pornography.”

Following publication of our original opinion in this case,

the government filed a petition for rehearing en banc. The

petition sought reconsideration of the Navarro-Lopez rule.

Before we could rule on the government’s petition, a majority

of the court’s active judges granted rehearing in another case,

United States v. Aguila-Montes de Oca (“Aguila-Montes”), to

consider the same question. We therefore held this case in

abeyance pending the en banc opinion in Aguila-Montes.

Aguila-Montes — 2011

Aguila-Montes overruled Navarro-Lopez’s “missing ele-

ment rule.” 655 F.3d at 916-17. As a result of the holding in

Aguila-Montes, we withdrew our original opinion in this case

and requested supplemental briefing from the parties on the

question of what effect, if any, the Aguila-Montes decision

had on the outcome of Aguilar-Turcios’ case. Aguilar-

Turcios, 652 F.3d at 1236. Having considered the supplemen-

tal briefing, we revisit the merits of this case.

II.

A.

We review de novo the BIA’s determinations of questions

of law and legal conclusions. Tamang v. Holder, 598 F.3d

1083, 1088 (9th Cir. 2010). “[W]hether an offense constitutes

an aggravated felony for which an alien is removable” is a

question of law reviewed de novo. Carrillo-Jaime v. Holder,

572 F.3d 747, 750 (9th Cir. 2009) (citing Cazarez-Gutierrez

v. Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004)).

9228 AGUILAR-TURCIOS v. HOLDER

B.

Generally, we have jurisdiction to review final orders of

removal under 8 U.S.C. § 1252(a)(1). We lack jurisdiction,

however, to review final orders of removal against aliens who

have committed certain criminal offenses, including aliens

convicted of aggravated felonies. See id. § 1252(a)(2)(C). Of

course, we have jurisdiction to determine our own jurisdic-

tion. See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000).

Because our resolution of the merits of whether Aguilar-

Turcios’ Article 92 conviction qualifies as an aggravated fel-

ony under federal law determines whether we have jurisdic-

tion over his final order of removal, “the jurisdictional

question and the merits collapse into one.” Id. (quoting Ye v.

INS, 214 F.3d 1128, 1131 (9th Cir. 2000) (internal quotation

marks omitted)). If we determine that Aguilar-Turcios’ Arti-

cle 92 conviction is not an aggravated felony, then we have

jurisdiction over the final order of removal and must grant his

petition; if we determine, however, that it is an aggravated fel-

ony, we lose our jurisdiction and the agency has the final

word on Aguilar-Turcios’ removal.

III.

The question before us is whether Aguilar-Turcios’ UCMJ

Article 92 conviction qualifies as an aggravated felony under

the modified categorical approach.7 Applying the modified

categorical approach as explained in Aguila-Montes, we hold

that Aguilar-Turcios’ Article 92 conviction is not an aggra-

vated felony because the facts on which his conviction “nec-

essarily rested” do not satisfy the elements of either 18 U.S.C.

§ 2252(a)(2) or (a)(4).8

7

We originally held that Aguilar-Turcios’ Article 92 conviction is not

categorically an aggravated felony. On rehearing, the parties do not chal-

lenge that determination. Therefore, we limit our discussion to the modi-

fied categorical approach.

8

Aguilar-Turcios argues that Aguila-Montes should be applied prospec-

tively only, because it “represents a clean break from past precedent, and

AGUILAR-TURCIOS v. HOLDER 9229

A. The Modified Categorical Approach

[1] “The categorical and modified categorical frameworks,

first outlined by the Supreme Court in Taylor v. United States,

495 U.S. 575 (1990), establish the rules by which the govern-

ment may use prior state convictions to enhance certain fed-

eral sentences and to remove certain aliens.”9 Aguila-Montes,

655 F.3d at 917 (internal citation omitted). Importantly, the

categorical and modified categorical approaches look only to

because of the reliance interests of aliens pleading guilty prior to it.”

Aguilar-Turcios’ argument is unconvincing. We recently held that Aguila-

Montes applies retroactively whether or not a petitioner had a reliance

interest on Navarro-Lopez, the case that Aguila-Montes overruled. Flores-

Lopez v. Holder, 08-75140, slip op. 7905, 7919 n.3 (9th Cir. Jul. 9, 2012);

Robles-Urrea v. Holder, 678 F.3d 702, 712 n.9 (9th Cir. 2012).

In Robles-Urrea, we held that Aguila-Montes applies retroactively

where a noncitizen’s conviction became final prior to our 2007 decision

in Navarro-Lopez, because he could not have relied on the missing ele-

ment rule when he pleaded guilty. 678 F.3d at 712 n.9. Similarly, Aguilar-

Turcios pleaded guilty and his conviction became final in 2003, long

before our Navarro-Lopez decision.

In Flores-Lopez, we held that Aguila-Montes applies retroactively even

where a noncitizen may have relied on the Navarro-Lopez rule. Slip op.

at 7919 n.3. This is because Aguila-Montes “eliminated the ‘missing ele-

ment’ rule without indicating whether the rule would apply prospectively

only. Therefore, the ‘default principle’ applies and the rule should apply

to all cases currently pending before the Courts . . . .” Id.

Aguila-Montes therefore applies retroactively to all cases pending

before this court, including this one.

9

We have found no other case from our circuit or our sister circuits dis-

cussing the application of the categorical and modified categorical

approaches to convictions under the UCMJ, although clearly the federal

government does rely on UCMJ convictions to remove noncitizens. See

United States v. Denedo, 556 U.S. 904, 907-08 (2009). In light of our dis-

position of this case, we assume without deciding that a conviction under

the UCMJ may provide a proper basis for the government to initiate

removal proceedings against a lawful permanent resident alien, and that

we may look not only to the UCMJ but to the elements of a lawful general

order like that at issue in this case when applying the modified categorical

approach.

9230 AGUILAR-TURCIOS v. HOLDER

the prior conviction, not to the facts outside the record of con-

viction. As the Supreme Court recently stated, the categorical

approach requires that federal courts “look[ ] to the statute

defining the crime of conviction, rather than to the specific

facts underlying the crime.” Kawashima v. Holder, 132 S. Ct.

1166, 1172 (2012); see also Carachuri-Rosendo v. Holder,

130 S. Ct. 2577, 2589 (2010) (“[T]he defendant must also

have been actually convicted of a crime that is itself punish-

able as a felony under federal law. The mere possibility that

the defendant’s conduct, coupled with facts outside of the

record of conviction, could have authorized a felony convic-

tion under federal law is insufficient to satisfy the statutory

command that a noncitizen be ‘convicted of a[n] aggravated

felony’ . . . .”); Aguila-Montes, 655 F.3d at 928 (noting that

courts are required to “focus on what the defendant was con-

victed of rather than the acts he committed”).

We have identified two important goals served by this lim-

ited inquiry into a past conviction: “First, it confines our

inquiry to the fact of conviction and avoids the need to rum-

mage through the ‘actual proof at trial’ to see ‘whether the

defendant’s conduct constituted [a] generic [offense],’ ” pre-

venting any possible “ ‘trial over trials.’ ” Aguila-Montes, 655

F.3d at 928 (quoting Taylor, 495 U.S. at 601). “Second, by

relying exclusively on the crime of conviction, we avoid situ-

ations where the government arguably could prove that the

defendant actually committed a greater offense, one that

would satisfy the generic crime, but would deprive the defen-

dant of the benefit of his conviction for (or plea to) a lesser

crime.” Id. at 928-29.

In applying the categorical approach, we compare the stat-

ute of conviction with the generic federal offense “to deter-

mine whether the latter encompasses the former.” Hernandez-

Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir. 2011). When

the statute of conviction requires proof of the same elements

as the generic federal offense, or is narrower than the generic

federal offense, the state conviction is “categorically” the

AGUILAR-TURCIOS v. HOLDER 9231

equivalent of the federal offense. See Taylor, 495 U.S. at 599;

Aguila-Montes, 655 F.3d at 920.

When the statute of conviction is broader than the generic

federal offense, however, the modified categorical approach

applies. The modified categorical approach requires that we

“determine, in light of the facts in the judicially noticeable

documents, (1) what facts the conviction necessarily rested on

(that is, what facts the trier of fact was actually required to

find); and (2) whether these facts satisfy the elements of the

generic offense.” Aguila-Montes, 655 F.3d at 940. Judicially

noticeable documents, also known as Shepard documents, are

limited to:

(1) charging documents; (2) the terms of a written

plea agreement; (3) transcripts of a plea colloquy

between a judge and the defendant in which the fac-

tual basis for the plea was confirmed by the defen-

dant; (4) jury instructions; (5) any explicit factual

finding by the trial judge to which the defendant

assented; and (6) some comparable judicial record of

this information.10

Id. at 921. Limiting a court’s inquiry to such documents pro-

vides “the ‘certainty of a generic finding’ ” and “avoid[s]

‘evidentiary disputes.’ ” Id. at 937 (quoting Shepard v. United

States, 544 U.S. 13, 23 n.4, 24 (2005)).

[2] We counseled in Aguila-Montes that we “must exercise

caution” when determining upon what facts a prior conviction

necessarily rested. Id. “It is not enough that an indictment

merely allege a certain fact or that the defendant admit to a

fact.” Id. Instead, to conclude that “the factfinder necessarily

found the elements of the generic crime,” the modified cate-

10

We have held that documents of “equal reliability,” such as a state

court’s minute order, may also be considered. United States v. Snellenber-

ger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en banc).

9232 AGUILAR-TURCIOS v. HOLDER

gorical approach requires that “the defendant could not have

been convicted of the offense of conviction unless the trier of

fact found the facts that satisfy the elements of the generic

crime.” Id.

We reject the dissent’s call to deviate from clearly-

established precedent and apply a less demanding modified

categorical approach in immigration cases. Dissent at

9266-68. We have repeatedly applied the modified categorical

approach as announced in Taylor, and Shepard’s limitations

on judicially noticeable documents, in immigration cases

where the government charges that a noncitizen is removable

or ineligible for relief on the basis of a prior conviction. See,

e.g., Perez-Mejia v. Holder, 663 F.3d 403, 410-13 (9th Cir.

2011); Hernandez-Cruz, 651 F.3d at 1100; S-Yong v. Holder,

600 F.3d 1028, 1035 (9th Cir. 2010). That precedent guides

our analysis of the modified categorical approach in this case.

Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003).

Furthermore, we disagree with the dissent’s vague “flexi-

ble” approach. First, “the concern motivating the entire cate-

gorical/modified categorical exercise” is not, in fact, that we

“be certain of the conduct that an alien committed before the

alien is removed,” Dissent at 9268 (emphases added), but

instead that we “focus on what the defendant was convicted

of rather than the acts he committed.” Aguila-Montes, 655

F.3d at 928 (emphases added). This is not a minor distinction

but the linchpin of the categorical and modified categorical

approaches.11

11

The dissent also argues in favor of a more “flexible” approach in cases

“where the Shepard documents leave no doubt as to what occurred.” Dis-

sent at 9269-70 n.12. Again, what occurred is not the focus of our inquiry

under the categorical or modified categorical approach. Instead, we focus

only on the offense of which the defendant was convicted. See, e.g.,

Kawashima, 132 S. Ct. at 1172; Carachuri-Rosendo, 130 S. Ct. at 2589;

Aguila-Montes, 655 F.3d at 928.

AGUILAR-TURCIOS v. HOLDER 9233

[3] Second, the categorical and modified categorical

approaches apply in immigration proceedings in the same

manner as they do in criminal sentencing proceedings, except

in a very narrow class of cases where the statutory definition

of the aggravated felony at issue “does not refer to generic

crimes but refers to specific circumstances.” Nijhawan v.

Holder, 557 U.S. 29, 129 S. Ct. 2294, 2300 (2009) (discuss-

ing 8 U.S.C. § 1101(a)(43)(M)(i)). In recent years, the

Supreme Court has repeatedly applied the categorical and

modified categorical approaches in immigration cases.

Kawashima, 132 S. Ct. at 1172; Carachuri-Rosendo, 130 S.

Ct. at 2586-87; Gonzales v. Duenas-Alvarez, 549 U.S. 183,

185-87 (2007). Our sister circuits have also recognized that

Congress’ use of the term “convicted” in the Immigration and

Nationality Act requires application of this framework in

immigration cases.12 See Farjado v. U.S. Att’y Gen., 659 F.3d

1303, 1307 (11th Cir. 2011) (“[C]ourts have consistently held

that Congress’s use of the term ‘conviction,’ . . . demonstrated

its intent to require adjudicators to apply the categorical and

modified categorical approach.”); Jean-Louis v. Att’y Gen.,

582 F.3d 462, 473-74 (3d Cir. 2009) (“[T]he BIA, prior attor-

neys general, and numerous courts of appeals have repeatedly

held that the term ‘convicted’ forecloses individualized

inquiry in an alien’s specific conduct and does not permit

examination of extra-record evidence.”); Gertsenshteyn v.

U.S. Dep’t of Justice, 544 F.3d 137, 145 (2d Cir. 2008)

(“[T]he INA premises removability not on what an alien has

done, or may have done, or is likely to do in the future (tempt-

ing as it may be to consider those factors), but on what he or

she has been formally convicted of in a court of law. . . . One

way to ensure proper focus on the conviction, we decided,

12

Moreover, before the Supreme Court decision in Taylor, executive

branch agencies and the federal courts applied a pre-Taylor version of the

categorical approach to determine if a non-citizen’s prior conviction

would have immigration consequences. See Alina Das, The Immigration

Penalties of Criminal Convictions: Resurrecting Categorical Analysis in

Immigration Law, 86 N.Y.U. L. Rev. 1669, 1688-1702 (2011).

9234 AGUILAR-TURCIOS v. HOLDER

was the method the Supreme Court applied in Taylor and

Shepard.”). The Supreme Court’s recent decision in Nijhawan

v. Holder does not change this analysis. The dissent’s citation

to Nijhawan, Dissent at 9266, provides no support for a more

“flexible” modified categorical approach here because the

Court in Nijhawan specifically placed the statutory definition

at issue in Aguilar-Turcios’ case, 8 U.S.C. § 1101(a)(43)(I),

among those offenses described in “language that must refer

to [a] generic crime,” thus requiring application of the cate-

gorical or modified categorical approaches.13 Id. Furthermore,

the Court recognized the narrowness of its Nijhawan holding

in Carachuri-Rosendo. 130 S. Ct. at 2586 n.11 (“Our analysis

was tailored to the ‘circumstance-specific’ language contained

in that particular subsection of the aggravated felony defini-

tion.” (emphasis added)).

Third and finally, to the extent that the dissent agrees that

the categorical and modified categorical approaches apply in

immigration proceedings, and that the Shepard limitations on

judicially noticeable documents also apply in the immigration

context, we fail to see why a supposedly different and “flexi-

ble” approach is necessary. See Dissent at 9268-69 n.12. If the

sum total of the dissent’s “flexible” approach is an argument

relating to the court’s ability to examine only certain portions

of the Shepard documents in particular types of cases, see id.,

we address that issue infra. We see no need to turn that minor

disagreement into an entirely new and less demanding modi-

fied categorical approach.

13

The dissent’s citation of our final opinion in the long-running case of

Kawashima v. Holder is equally unhelpful. See Dissent at 9266. Our state-

ment in that opinion that “the BIA is not limited to only those documents

which a court applying the modified categorical approach may review,”

addressed only the “circumstance-specific” inquiry mandated by Nijhawan

into the second requirement of 8 U.S.C. § 1101(a)(43)(M)(i), that “the loss

to the victim or victims exceeds $10,000.” Kawashima, 615 F.3d 1043,

1056 (9th Cir. 2010), aff’d 132 S. Ct. 1166 (2012). It was not a general

statement, much less a “holding,” Dissent at 9266, applicable to all immi-

gration cases.

AGUILAR-TURCIOS v. HOLDER 9235

Thus, we proceed to apply the modified categorical

approach as outlined in Aguila-Montes to Aguilar-Turcios’

case.

B. Applying the Modified Categorical Approach to

Aguilar-Turcios’ Article 92 Conviction

Under Aguila-Montes, we first examine what facts were

“necessary” to support Aguilar-Turcios’ Article 92 convic-

tion. Concluding that Aguilar-Turcios’ admissions that (1) he

used a government computer (2) to obtain access to porno-

graphic Internet sites were the only facts necessary to support

his Article 92 conviction, we then analyze whether those facts

satisfy the elements of 18 U.S.C. § 2252(a)(2) or (a)(4). We

conclude that they satisfy neither.14

Aguilar-Turcios pleaded guilty to and was convicted under

UCMJ Article 92 of violating DOD Directive 5500.7-R § 2-

301(a), which provides that government computers “shall be

for official use and authorized purposes only” and that such

“authorized purposes” do not include “uses involving pornogra-

phy.”15 In particular, Aguilar-Turcios was charged as follows:

14

The dissent argues that by failing to consider Aguilar-Turcios’ factual

admissions in connection with his plea of guilty to the Article 134 charge,

we have effectively resurrected the “missing element rule” from Navarro-

Lopez and undermined the holding in Aguila-Montes and the modified cat-

egorical approach in general. See Dissent at 9259-61. Respectfully, we fail

to understand this concern. Only one of Aguilar-Turcios’ UCMJ convic-

tions is at issue on appeal. The Shepard documents reveal that the govern-

ment’s only “theory of the case” for that conviction was that Aguilar-

Turcios used a government computer to obtain access to pornographic

Internet sites, charges which Aguilar-Turcios admitted in his plea collo-

quy. There is no other explicit theory behind the Article 92 conviction, and

we decline to invent one. We therefore apply the modified categorical

approach as explained by Aguila-Montes and restrict our analysis to the

limited universe of Shepard documents that the approach permits us to

consult. It is the dissent’s approach that is not sanctioned by either Aguila-

Montes or Shepard.

15

“The elements of an Article 92, UCMJ, violation for failure to obey

a lawful general order or regulation are: (a) a certain lawful general order

9236 AGUILAR-TURCIOS v. HOLDER

In that Lance Corporal Rigoberto Aguilarturcios

[sic], U.S. Marine Corps, on active duty, did, . . . on

divers occasions, from on or about 1 November

2007, to on or about 18 July 2002, violate a lawful

general regulation, to wit: Department of Defense

Directive 5500.7-R, Section 2-301, Change 2, dated

25 March 1996, by wrongfully using a government

computer, Fujitsu MPB3032AT (HD), serial number

03065335 (3.24 gb), to obtain access to porno-

graphic internet sites.

(Emphases added.) In order to find an adequate factual basis

that would support Aguilar-Turcios’ guilty plea to this charge,

the MJ would only need to determine that Aguilar-Turcios (1)

used a government computer (2) to obtain access to porno-

graphic Internet sites. The MJ could not accept Aguilar-

Turcios’ guilty plea and convict him under Article 92 unless

he found that Aguilar-Turcios admitted those two facts; he

was not, however, required to find anything further.

The judicially noticeable documents that we may examine

in applying the modified categorical approach here consist of

(1) the Charge Sheet; (2) the Memorandum of Pretrial Agree-

ment; (3) the Stipulation of Fact, which was incorporated into

the Memorandum of Pretrial Agreement and accepted by the

MJ at the plea proceeding;16 and (4) the transcript of the plea

or regulation was in effect; (b) the accused had a duty to obey that order

or regulation; and (c) the accused violated or failed to obey the order or

regulation.” United States v. Pope, 63 M.J. 68, 71-72 (C.A.A.F. 2006).

During the plea colloquy, the MJ informed Aguilar-Turcios that the first

two elements of the offense were (1) that Directive 5500.7-R § 2-301 was

a lawful general regulation that was in effect, and (2) that Aguilar-Turcios

had a duty to obey it. In response, Aguilar-Turcios conceded that these

two preliminary elements were met.

16

Here, the Stipulation of Fact was explicitly incorporated into the

Memorandum of Pretrial Agreement, and is therefore a judicially notice-

able document for purposes of applying the modified categorical approach

in this case. See United States v. Almazan-Becerra, 537 F.3d 1094, 1097-

98 (9th Cir. 2008) (discussing United States v. Espinoza-Cano, 456 F.3d

1126, 1128-29, 1132-33 (9th Cir. 2006); United States v. Hernandez-

Hernandez, 431 F.3d 1212, 1215, 1218-20 (9th Cir. 2005); Parilla v. Gon-

zales, 414 F.3d 1038, 1043-44 (9th Cir. 2005)).

AGUILAR-TURCIOS v. HOLDER 9237

colloquy between the MJ and Aguilar-Turcios.17

As noted above, the Charge Sheet simply sets forth the

basic facts and elements of the Article 92 charge. The Memo-

randum of Pretrial Agreement states only that Aguilar-Turcios

agreed to plead guilty to the Article 92 charge and to violating

DOD Directive 5500.7-R § 2-301, without mentioning any

specific acts that he committed to violate it.

The Stipulation of Fact lists separately the facts underlying

the Article 92 charge and the Article 134 charge, including

the two specifications of the Article 134 charge. Each charge

is noted in bold type, and the facts supporting that charge are

presented directly below the charge itself. There is no overlap

or cross-referencing in the stipulation between the facts sup-

porting the Article 92 charge and those supporting the Article

134 charge. The paragraph in the Stipulation of Fact that sup-

ports the Article 92 charge parrots the Charge Sheet, stating

that “LCpl Aguilarturcios [sic] used the government computer

in his workspace . . . to knowingly and wrongfully obtain

access to pornographic internet sites.”

The plea colloquy between Aguilar-Turcios and the MJ

reveals little more. (In the transcript, Aguilar-Turcios is listed

as “ACC” for “accused.”) After reading the elements of the

Article 92 charge, and the specific charge from the charge

sheet, the MJ asked Aguilar-Turcios:

MJ: Do you understand those elements?

17

The dissent’s frequent references to pieces of evidence admitted at the

sentencing phase of Aguilar-Turcios’ court martial, including photographs

and a sworn statement signed by Aguilar-Turcios, are irrelevant to our

application of the modified categorical approach, as they are not “included

in the ‘narrow, specified set of documents that are part of the record of

conviction,’ ” that may be considered as part of the modified categorical

approach. See, e.g., Perez-Mejia, 663 F.3d at 410 (quoting S-Yong, 600

F.3d at 1035-36).

9238 AGUILAR-TURCIOS v. HOLDER

ACC: Yes, sir.

MJ: Are they accurate? When I say “are they accu-

rate,” do they describe what you did?

ACC: Yes, sir.

Later in the court martial, the MJ and Aguilar-Turcios

engaged in the following exchange:

MJ: And do you believe that downloading porno-

graphic — or visiting, rather, pornographic internet

sites violated that regulation?

ACC: Yes, sir.

[. . .]

MJ: And you realize these sites that you were going

to were in fact pornographic internet sites?

ACC: Yes, sir.

MJ: Pardon me?

ACC: Yes, sir.

MJ: “Pornography” is defined as writings, pictures,

etc., that are intended primarily to arouse sexual

desire. Is that what the nature of these sites were?

ACC: Yes, sir.

The MJ discussed each charge and its elements, and asked

Aguilar-Turcios about the factual basis for each charge.

Again, there was no overlap in the plea colloquy between the

charges or the facts underlying them. At the end of the hear-

ing, the MJ found that Aguilar-Turcios’ guilty pleas were sup-

AGUILAR-TURCIOS v. HOLDER 9239

ported by an adequate factual basis, but did not make specific

factual findings about the conduct underlying each charge.

[4] Although the limited information regarding the Article

92 charge in these documents reveals little about what

Aguilar-Turcios actually did, it does establish both facts nec-

essary to support his guilty plea to the Article 92 charge. First,

Aguilar-Turcios admitted that he used a government com-

puter, and second, he admitted that he obtained access to or

visited pornographic Internet sites on that computer, as the MJ

defined “pornography.” These admissions provided a suffi-

cient factual basis for Aguilar-Turcios’ guilty plea and

allowed the MJ to convict him of violating Article 92. See In

re Ellis, 356 F.3d 1198, 1204-05 (9th Cir. 2004) (finding that

a guilty plea and a stipulation of fact provided “ample evi-

dence” of guilt); see also United States v. Rivera-Ramirez,

715 F.2d 453, 457-58 (9th Cir. 1983) (explaining that,

although there was a limited factual record, there was an ade-

quate factual basis for the defendant’s guilty plea because

nothing in the record placed the accuracy of the plea in doubt).18

As we discuss more fully infra, these factual admissions do

not mention child pornography or minors and therefore do not

satisfy the generic federal offense under 18 U.S.C.

§ 2252(a)(2) or (a)(4).

[5] The dissent argues that we may look beyond Aguilar-

Turcios’ Article 92 conviction to his Article 134 conviction in

our application of the modified categorical approach.19 Dis-

18

The standard under the UCMJ requires the MJ to “ ‘determin[e]

whether there is an adequate basis in law and fact to support the plea

before accepting it.’ ” United States v. Jones, 69 M.J. 294, 299 (C.A.A.F.

2011) (quoting United States v. Inabinette, 66 M.J. 320, 321-22 (C.A.A.F.

2008)). The UCMJ requires that a defendant admit his guilt and articulate

the facts that objectively establish his guilt. Id. An MJ may consider a stip-

ulation of facts and the accused’s responses on the record in making that

determination. Id.

19

The charge sheet alleged that Aguilar-Turcios violated Article 134 as

follows:

9240 AGUILAR-TURCIOS v. HOLDER

sent at 9261-63. The dissent contends that if we do that, it is

clear that Aguilar-Turcios only admitted to accessing child

pornography. Dissent at 9255-56. We disagree. First, as we

discuss below, our inquiry is limited to the conviction on

which the government bases its charge that an alien is remov-

able. Here, that is Aguilar-Turcios’ Article 92 conviction.

Second, even if we could look to Aguilar-Turcios’ Article 134

conviction, none of the factual admissions that related to the

Article 134 charge were “necessary” to support his Article 92

conviction. Finally, the different allegations in the Article 92

charge and the Article 134 charge mean that we cannot read

the conduct alleged with respect to each charge as co-

extensive.

[6] First, there is no legal precedent that allows a court, in

its application of the modified categorical approach, to look

beyond the record of conviction of the particular offense that

the government alleges is an aggravated felony. We agree

with the Eleventh Circuit’s conclusion that there is “no

authority . . . that permits the combining of two offenses to

determine whether one or the other is an aggravated felony.”

Jaggernauth v. Att’y Gen., 432 F.3d 1346, 1355 (11th Cir.

2005). Furthermore, we decline to create such authority here.

Aguilar-Turcios’ Article 92 and Article 134 convictions were

for separate offenses that charged different conduct, and we

are reluctant to conflate the two into one or allow one to seep

into the other when applying the modified categorical

approach.

In that Lance Corporal Rigoberto Aguilarturcios [sic], U.S.

Marine Corps, on active duty, did, . . . on six (6) occasions, from

on or about 1 November 2007, to on or about 18 July 2002, on

a government computer hard drive, Fujitsu MPB3032AT (HD),

serial number 03065335 (3.24 gb), wrongfully and knowingly

possess visual depictions of minors engaging in sexually explicit

conduct . . . .

AGUILAR-TURCIOS v. HOLDER 9241

[7] The dissent argues that we may consider the factual

basis supporting the Article 134 charge to conclude that

Aguilar-Turcios was convicted under Article 92 of conduct

proscribed by § 2252(a)(2) and/or (a)(4). Dissent at 9261-62.

The government argues the same, reasoning that nothing in

Taylor or Shepard prevents the court from looking at the facts

underlying Aguilar-Turcios’ Article 134 conviction to con-

clude that his Article 92 conviction is an aggravated felony.

We err on the side of caution and hold that under the modified

categorical approach, we consider only those sections of the

Shepard documents that pertain to the specific conviction or

convictions that (1) the government charges render the alien

removable or ineligible for relief and (2) are at issue on

appeal. This holding is in line with the “cautio[us],” “circum-

scribed” analysis required by Aguila-Montes, and “ensure[s]

that [the modified categorical approach] remains a narrow

exception to the categorical approach.” Aguila-Montes, 655

F.3d at 937, 938.

[8] In this case, each of Aguilar-Turcios’ convictions had

a separate factual basis, as outlined in the Stipulation of Fact.

This is not a case where multiple convictions rested on the

same set of facts. Our inquiry here is therefore limited to

those portions of the Shepard documents that pertain to

Aguilar-Turcios’ Article 92 conviction. Id. at 940.

Second, even if we could look at the record as a whole,

including the sections pertaining to Aguilar-Turcios’ Article

134 conviction, none of the facts supporting his Article 134

conviction were necessary to support his Article 92 convic-

tion. The modified categorical approach limits our inquiry to

the “facts the conviction necessarily rested on.” Id. at 940. We

explained above that the only facts on which Aguilar-Turcios’

Article 92 conviction “necessarily rested” were (1) his use of

a government computer (2) to obtain access to pornographic

Internet sites. He admitted to both acts and pleaded guilty to

the Article 92 charge at the beginning of his court-martial.

The MJ carefully addressed each charge and its elements sep-

9242 AGUILAR-TURCIOS v. HOLDER

arately and in turn, not together. The factual bases for the two

convictions were separate and distinct and none of the facts

that related to the Article 134 conviction were necessary to

support the Article 92 conviction.20 Therefore, a more expan-

sive review of the Shepard documents adds nothing to our

analysis under the modified categorical approach.

Aguila-Montes also instructs that we apply the following

test to determine “the facts necessarily found by the trier of

fact in support of the conviction”: “If the defendant could not

have been convicted of the offense of conviction unless the

trier of fact found the facts that satisfy the elements of the

generic crime, then the factfinder necessarily found the ele-

ments of the generic crime.” 655 F.3d at 937. Here, to con-

clude that the MJ “necessarily found the elements” of 18

U.S.C. § 2252(a)(2) or (a)(4) would mean that unless the MJ

found facts satisfying the elements of § 2252(a)(2) or (a)(4),

Aguilar-Turcios could not have been convicted of violating

UCMJ Article 92. Such factual findings or admissions were,

however, entirely unnecessary to permit the MJ to find an

20

The dissent’s conclusion that the MJ “must have found Aguilar-

Turcios guilty of an Article 92 violation based on his viewing of child por-

nography” relies in part on a sworn statement from Aguilar-Turcios that

was admitted only at the sentencing phase of his court-martial and which

we are not permitted to consult when applying the modified categorical

approach. Dissent at 9258. The dissent justifies its references to this non-

Shepard document by arguing that, under the modified categorical

approach, we may consider factual stipulations. Dissent at 9258 n.3. We

do not dispute that under the modified categorical approach factual stipu-

lations may be relevant Shepard documents, and indeed we consider and

discuss the Stipulation of Fact between Aguilar-Turcios and the prosecu-

tion. See supra at 9237. The Stipulation of Fact, which was mentioned

explicitly in the Memorandum of Pretrial Agreement, is distinct from

Aguilar-Turcios’ sworn statement that he signed during his interrogation

by investigating officers. The sworn statement, offered by the prosecutor

at the sentencing phase of the court martial, does not qualify on its own

as a Shepard document, see Shepard, 544 U.S. at 16; Aguila-Montes, 655

F.3d at 921, and is not mentioned in any of the judicially noticeable docu-

ments in this case. See Almazan-Becerra, 537 F.3d at 1097-98.

AGUILAR-TURCIOS v. HOLDER 9243

adequate factual basis for Aguilar-Turcios’ plea to violating

Article 92. Although we discuss the elements of § 2252(a)(2)

and (a)(4) more fully infra, an example here will help illus-

trate this point. One of the elements of both § 2252(a)(2) and

(a)(4) is that the offense conduct involves a minor. But the

Article 92 charge says nothing about minors, and it was not

necessary for the MJ to find that minors were involved in

order to convict Aguilar-Turcios of using a government com-

puter to obtain access to pornographic internet sites. As we

discussed above, the MJ had the authority to accept Aguilar-

Turcios’ guilty plea on the basis of his admissions to that con-

duct, without more. Therefore, the involvement of minors,

one of the elements of § 2252(a)(2) and (a)(4) and a fact sup-

porting Aguilar-Turcios’ Article 134 conviction, was not a

“fact[ ] necessarily found by the trier of fact in support of the

[Article 92] conviction.” Id.

Finally, the different allegations in the Article 92 charge

and the Article 134 charge mean that we cannot construe the

charged conduct as co-extensive, as the dissent and the gov-

ernment seem to assume.21 There is no logical reason why

Aguilar-Turcios’ admission to accessing pornographic Inter-

net sites under the Article 92 charge would serve to limit the

scope of his Internet use during the period at issue to the six

instances of downloading images of child pornography

charged under Article 134. Both charges reference the same

computer serial number and the same date range. But those

similarities alone do not lead inevitably to the conclusion that

21

The government argues that “[t]he conclusion is thus unavoidable that

Aguilar’s admission to viewing ‘pornographic internet sites’ [in the Arti-

cle 92 charge] on the same computer, on the same dates [as in the Article

134 charge], refers to the child pornography.” The dissent makes a similar

argument: “Aguilar-Turcios’ admission to viewing ‘pornographic internet

sites’ on the same computer, on the same dates [as in the Article 134

charge], undoubtedly refers to the child pornography.” Dissent at 9257-58.

Although the Article 134 charge is irrelevant here, as the government did

not appeal the IJ’s adverse ruling on that conviction, we address this argu-

ment because the dissent and government stress it to such a degree.

9244 AGUILAR-TURCIOS v. HOLDER

Aguilar-Turcios only used that particular computer six times

over the course of the eight-and-a-half-month period alleged,

and only to download images of child pornography. Indeed,

the allegations in the charges make that conclusion unlikely:

the Article 92 charge alleges that Aguilar-Turcios “obtain[ed]

access to pornographic internet sites” “on divers occasions,”

while the Article 134 charge alleges more specifically that

Aguilar-Turcios possessed child pornography images “on six

(6) occasions.”22 Because the two charges are worded differ-

ently, we cannot conclude that the two convictions necessarily

rested on the same facts.

[9] Having established, on the basis of judicially noticeable

documents, that Aguilar-Turcios’ Article 92 conviction “nec-

essarily rested” only on the facts that (1) he used a govern-

ment computer (2) to obtain access to pornographic Internet

sites, the modified categorical approach directs us to deter-

mine “whether these facts satisfy the elements of the generic

offense.” Aguila-Montes, 655 F.3d at 940.

[10] The generic federal offenses at issue here are 18

U.S.C. § 2252(a)(2) and (a)(4). Both qualify as “aggravated

felonies” under 8 U.S.C. § 1101(a)(43)(I). Section 2252(a)(2)

criminalizes “knowingly receiv[ing], or distribut[ing], any

visual depiction . . . , or knowingly reproduc[ing] any visual

depiction for distribution . . . , if — (A) the producing of such

22

The dissent is correct that “divers” could refer to six, but it could also

refer to any other number greater than one. Dissent at 9261 n.6. “ ‘When

members find an accused guilty of an “on divers occasions” specification,

they need only determine that the accused committed two acts that satis-

fied the elements of the crime as charged—without specifying the acts, or

how many acts, upon which the conviction was based.’ ” United States v.

Jones, 66 M.J. 704, 708 (A.F. Ct. Crim. App. 2008) (quoting United States

v. Rodriguez, 66 M.J. 201, 203 (C.A.A.F. 2008)). And while “[s]ix occa-

sions would easily fall within th[e] definition [of ‘divers’],” so would two

occasions, or twenty, or one hundred. Dissent at 9261 n.6. We cannot

know the number of occasions to which the government was referring

when it used the term “on divers occasions,” but we easily conclude that

we cannot read “divers” as necessarily referring to “six.”

AGUILAR-TURCIOS v. HOLDER 9245

visual depiction involves the use of a minor engaging in sexu-

ally explicit conduct; and (B) such visual depiction is of such

conduct.” The version of § 2252(a)(4) that was in effect until

2008 similarly criminalized “knowingly possess[ing] 1 or

more books, magazines, periodicals, films, video tapes, or

other matter which contain any visual depiction . . . , if — (i)

the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and (ii) such

visual depiction is of such conduct.”

Under the modified categorical approach as explained by

Aguila-Montes, in order for Aguilar-Turcios to have been

“convicted of” one of these generic federal aggravated felo-

nies, his Article 92 conviction must necessarily have rested on

facts that satisfy the following elements: (1) knowingly

receiving, distributing, reproducing for distribution, or pos-

sessing visual depictions of (2) a minor (3) engaging in sexu-

ally explicit conduct. A comparison of the necessary facts of

Aguilar-Turcios’ Article 92 conviction and the elements of

these two federal offenses illustrates that the facts do not sat-

isfy the elements.

[11] (1) Receiving, distributing, reproducing, possessing

visual depictions: Aguilar-Turcios’ Article 92 conviction,

including the Stipulation of Fact, shows only that he “ob-

tain[ed] access to” pornographic Internet sites. The MJ clearly

described the conduct charged under Article 92 as “visiting”

or “going to . . . pornographic internet sites.” The act of

accessing, visiting, or going to an Internet site is not the

equivalent of possessing or receiving a visual depiction.23 In

23

It is possible to “possess” a visual depiction by visiting an Internet site

if the image from the site is saved in a cache file and there is some evi-

dence that the defendant has “knowledge of and access to the files.”

United States v. Flyer, 633 F.3d 911, 919 (9th Cir. 2011). Nothing in the

Shepard documents in this case establishes that Aguilar-Turcios had

knowledge of and access to whatever images were saved in the cache file

on the computer that he used. See United States v. Kuchinski, 469 F.3d

9246 AGUILAR-TURCIOS v. HOLDER

fact, § 2252(a)(4) was amended in 2008 to criminalize addi-

tionally the action of someone who “knowingly accesses with

intent to view” child pornography, underscoring that posses-

sion is distinct from both accessing and viewing.24 Addition-

ally, there is no suggestion that Aguilar-Turcios distributed or

reproduced any visual depictions. Therefore, Aguilar-Turcios’

conviction for obtaining access to pornographic Internet sites

does not equate to any of the acts specified in § 2252(a)(2) or

(a)(4).

Moreover, a pornographic Internet site, as the MJ defined

pornography, does not necessarily contain any visual depic-

tions. The MJ described pornography as “writings, pictures,

etc., that are intended primarily to arouse sexual desire,” a

very broad definition. There is nothing in the MJ’s definition

of pornography that would limit Aguilar-Turcios’ admission

to the accessing of images or pictures only.

[12] (2) Minor: The facts necessary to Aguilar-Turcios’

Article 92 conviction do not mention minors.

[13] (3) Engaging in sexually explicit conduct: Again, the

facts necessary to Aguilar-Turcios’ Article 92 conviction do

not mention this phrase or even incorporate the concept.

Aguilar-Turcios pleaded guilty and admitted to accessing por-

853, 863 (9th Cir. 2006) (“Where a defendant lacks knowledge about the

cache files, and concomitantly lacks access to and control over those files,

it is not proper to charge him with possession and control of the child por-

nography images located in those files, without some other indication of

dominion and control over the images. To do so turns abysmal ignorance

into knowledge and a less than valetudinarian grasp into dominion and

control.”). The dissent argues that Aguilar-Turcios “possessed” visual

depictions by downloading images from the Internet to his computer, but

only refers to factual stipulations relating to the Article 134 charge, which

are irrelevant here.

24

See Enhancing the Effective Prosecution of Child Pornography Act of

2007, Pub. L. No. 110-358, § 203, 122 Stat. 4001.

AGUILAR-TURCIOS v. HOLDER 9247

nographic Internet sites on his government computer, as the

MJ defined pornography at his court martial. That is all that

he admitted to for the purposes of Article 92, and those are

the only facts necessary to support his conviction.

Even if Aguilar-Turcios’ Article 92 conviction was some-

how understood to encompass the phrase “engaging in sexu-

ally explicit conduct,” we could not hold that Aguilar-

Turcios’ admission under Article 134 of possessing images of

minors engaged in such conduct satisfies this element of

§ 2252(a)(2) and (a)(4) because the definition of “sexually

explicit conduct” offered by the MJ does not correspond to

the federal definition. The MJ defined “sexually explicit con-

duct” during the plea colloquy with Aguilar-Turcios as “con-

duct that is plainly or clearly involving sexually [sic] activity;

the organs of sex; or the instincts, drives, or behavior associ-

ated with sexual activity.” For the purposes of § 2252(a)(2)

and (a)(4), however, federal law defines “sexually explicit

conduct” as “actual or simulated — (i) sexual intercourse,

including genital-genital, oral-genital, anal-genital, or oral-

anal, whether between persons of the same or opposite sex;

(ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic

abuse; or (v) lascivious exhibition of the genitals or pubic area

of any person.” 18 U.S.C. § 2256(2)(A); see also United

States v. Adams, 343 F.3d 1024, 1034 (9th Cir. 2003).

Aguilar-Turcios’ guilty plea to the Article 134 charge of

possessing images of minors involved in sexually explicit

conduct, as the MJ defined the term, could therefore have

referred only to images of minors involved in conduct plainly

or clearly involving the instincts or drives associated with

sexual activity. That would not satisfy the “sexually explicit

conduct” element of § 2252(a)(2) or (a)(4) as that term is

defined by federal law, because an image might depict minors

engaging in conduct involving the instincts or drives associ-

ated with sexual activity without depicting actual or simulated

sexual intercourse, bestiality, masturbation, sadistic or mas-

ochistic abuse, or a lascivious exhibition of their genitals or

9248 AGUILAR-TURCIOS v. HOLDER

pubic areas—for example, an image of minors kissing would

satisfy the MJ’s definition, while falling far short of the fed-

eral definition.25 Aguilar-Turcios’ conviction under Article

134 did not necessarily rest on facts satisfying the federal def-

inition of “sexually explicit conduct.”

Aguilar-Turcios’ Article 92 conviction does not necessarily

rest on facts satisfying the elements of either § 2252(a)(2) or

(a)(4). It is possible that his separate conviction under Article

134 would satisfy those elements—although doubtful, given

the differing definitions of “sexually explicit conduct”—but

the government did not appeal the IJ’s ruling that Article 134

could not serve as a basis for removal. The government must

accept the consequences of its litigation strategies, as must

any defendant.

[14] In conclusion, Aguilar-Turcios’ Article 92 conviction

was not an aggravated felony under the modified categorical

approach and he is therefore not removable.

IV.

Because we conclude that Aguilar-Turcios’ UCMJ Article

92 conviction is not an aggravated felony, we have jurisdic-

tion over this case, and we grant the petition for review and

remand to the BIA with instructions for the agency to vacate

the removal order against the petitioner.

GRANTED and REMANDED.

25

The dissent objects to our reasoning, Dissent at 9263-66, but again

relies on evidence from the administrative record that is not with the lim-

ited universe of Shepard documents that we are permitted to consult when

applying the modified categorical approach.

AGUILAR-TURCIOS v. HOLDER 9249

BYBEE, Circuit Judge, dissenting:

Judge Frankel once wrote that “[a]s people, we know or

powerfully suspect a good deal more than we are prepared as

lawyers to admit.” Marvin E. Frankel, The Search for Truth:

An Umpireal View, 123 U. Pa. L. Rev. 1031, 1039 (1975).

This case demonstrates the principle perfectly. Everyone

knows what Lance Corporal Aguilar-Turcios was looking at

on his computer, but the lawyers—at least the majority—

cannot bring themselves to admit it. Even when it is plain on

the record before us.

The majority concludes that we cannot tell whether

Aguilar-Turcios knowingly received or possessed visual

depictions of a minor engaging in sexually explicit conduct,

Maj. Op. at 9245, because:

• “[t]he act of accessing, visiting, or going to an Internet site

is not the equivalent of possessing or receiving a visual depic-

tion,” id. at 9245;

• “a pornographic Internet site . . . does not necessarily con-

tain any visual depictions,” id. at 9246;

• “Aguilar-Turcios’ Article 92 conviction do[es] not mention

minors,” id.; and

• “Aguilar-Turcios’ guilty plea to the Article 134 charge of

possessing images of minors involved in sexually explicit

conduct” might be based on “an image of minors kissing,” id.

at 9247-48.

This is fatuous. The idea that viewing pornography and down-

loading pornographic images does not involve possessing or

receiving a visual depiction, that a pornographic website does

not contain visual depictions, that Aguilar-Turcios was not

viewing child pornography, or that any sexually explicit con-

9250 AGUILAR-TURCIOS v. HOLDER

duct Aguilar-Turcios was viewing might just have involved

minors kissing is contrary to all that we know.

We know—or, in Frankel’s words at least “powerfully

suspect”—that the Marine Corps does not sentence its

Marines to ten months of confinement, a pay-grade reduction,

and a bad-conduct discharge for viewing pictures of minors

kissing. But we need not speculate because, with military pre-

cision, the Special Court Martial laid out exactly what

Aguilar-Turcios was doing. As Lance Corporal Aguilar-

Turcios forthrightly admitted in his plea colloquy, he knew

that the “individuals [were] engaged in sexually explicit con-

duct, that “they were minor children,” that it was his “purpose

to download and view those photographs,” that he was “actu-

ally in possession of those images,” and that he “realize[d] it

was wrong at the time [he] did it.” Lest there be any lingering

doubt as to what Aguilar-Turcios was admitting to, the BIA’s

administrative record has three of the pictures he downloaded

and that were introduced at his court martial. They do not

depict minors kissing.

This exercise is contrary to all reason. I respectfully, but

emphatically, dissent.

I

Under 8 U.S.C. § 1227, an alien is removable for commit-

ting an “aggravated felony” after entry into the United States.

See 8 U.S.C. § 1227(a)(2)(A)(iii). An “aggravated felony”

includes, among other things, offenses described in 18 U.S.C.

§ 2252, see 8 U.S.C. § 1101(a)(43)(I) (listing crimes relating

to child pornography, including those described in 18 U.S.C.

§ 2252, as part of the definition of “aggravated felony”), two

provisions of which are relevant here. First, it is an aggravated

felony to “knowingly receive[ ] . . . any visual depiction that

has been . . . transported in interstate or foreign commerce . . .

by any means including by computer . . . if (A) the producing

of such visual depiction involves the use of a minor engaging

AGUILAR-TURCIOS v. HOLDER 9251

in sexually explicit conduct; and (B) such visual depiction is

of such conduct.” 18 U.S.C. § 2252(a)(2) (2003). Second,

§ 2252(a)(4), as it existed at the time of Aguilar-Turcios’ con-

viction, criminalized the “knowing[ ] possess[ion of] 1 or

more books, magazines, periodicals, films, video tapes, or

other matter which contain any visual depiction . . . , if—(i)

the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and (ii) such

visual depiction is of such conduct.” Id. § 2252(a)(4)(B). In

my view, both of these provisions can form the basis for

Aguilar-Turcios’ removal.

A

I agree with the majority that we cannot find that Aguilar-

Turcios committed an aggravated felony as a categorical mat-

ter unless, after comparing the elements of the statute of con-

viction and the definition of the aggravated felony, we

conclude that the entire range of conduct prohibited by the

statute fits within the statutory definition of an aggravated fel-

ony. Taylor v. United States, 495 U.S. 575, 600-02 (1990).

There is no question that Aguilar-Turcios’ conviction

would not constitute a removable offense under this inquiry.

Aguilar-Turcios pled guilty to violations of two broad provi-

sions of the UCMJ: one violation of Article 92 for violating

a lawful general order, see 10 U.S.C. § 892, and one violation

of Article 134 for conduct unbecoming a Marine, see 10

U.S.C. § 934.

Article 92 makes any member of the military who “violates

or fails to obey any lawful general order or regulation” pun-

ishable by a court martial. 10 U.S.C. § 892(1). Aguilar-

Turcios pled guilty to violating § 2-301(a)(2)(d) of Depart-

ment of Defense Directive 5500.7-R, which prohibits “put[t-

ing] federal government communications systems to uses that

would reflect adversely on DoD or the DoD component (such

as uses involving pornography; chain letters; unofficial adver-

9252 AGUILAR-TURCIOS v. HOLDER

tising, . . . and other uses that are incompatible with public ser-

vice).”1

The broad language of § 2-301(a)(2)(d) clearly encom-

passes conduct unrelated to possession of child pornography

as defined in 18 U.S.C. § 2252(a)(2) or 2252(a)(4); thus, a

violation of § 2-301(a)(2)(d) is not categorically an aggra-

vated felony.

B

The Taylor Court recognized that there would be situations

1

The majority “assume[s] without deciding that . . . the elements of a

lawful general order like that at issue in this case” may be considered in

determining whether Aguilar-Turcios’ Article 92 conviction is a categori-

cal aggravated felony. Maj. Op. at 9229 n.9. I have no hesitation conclud-

ing that we may look to the elements of the lawful general order when

applying the categorical and modified categorical analysis. The purpose of

the UCMJ is to reconcile the need for a command structure in the military

with the need for criminal law safeguards in administering military justice.

See John S. Cooke, Introduction: Fiftieth Anniversary of the Uniform

Code of Military Justice Symposium Edition, 165 Mil. L. Rev. 1, 7-10

(2000). For that reason, the UCMJ shares many characteristics of the civil-

ian criminal law system, and provides important procedural rights such as

the right against self-incrimination and the right to assistance of counsel.

Id. at 9-10. The UCMJ is thus properly viewed as a parallel system of law

enforcement, akin to a state criminal system.

The categorical and modified categorical analysis was designed to cali-

brate the disparate criminal laws in our federal system to the national

criminal and immigration laws. Had Aguilar-Turcios pled guilty to a vio-

lation of California’s child pornography statute, Cal. Penal Code § 311.11,

the panel would have no reservations applying the categorical and modi-

fied categorical analysis to determine if § 311.11 was an aggravated fel-

ony. I see no principled difference between looking at the elements of the

lawful general order underlying Aguilar-Turcios’ convictions and looking

at the elements of a state criminal statute. To conclude otherwise would

be to render the immigration removal laws inapplicable to any alien sub-

ject to the UCMJ who is prosecuted for violating an order that would have

been prosecuted as a removable crime had it occurred off the military

base.

AGUILAR-TURCIOS v. HOLDER 9253

where “the sentencing court [may look] beyond the mere fact

of conviction in a narrow range of cases where a jury was

actually required to find all the elements of [the generic

crime].” Taylor, 495 U.S. at 602. The Supreme Court has

extended that approach to cases, such as this, where the alien

has pled guilty to the predicate crime. See Shepard v. United

States, 544 U.S. 13, 20 (2005). The substantial (and at times

confusing) body of law that has developed to define this “nar-

row range of cases” where a court can look “beyond the mere

fact of conviction” has come to be known as the modified cat-

egorical approach. Taylor, 495 U.S. at 602; see United States

v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en

banc).

When the modified categorical analysis applies, we consult

charging documents, signed plea agreements, jury instruc-

tions, guilty pleas, transcripts of plea proceedings, and judg-

ment, and “comparable judicial record[s] of this information,”

Shepard, 544 U.S. at 26, to determine if the conduct for which

the alien was actually convicted satisfies the definition of an

aggravated felony. Aguila-Montes, 655 F.3d at 922; see also

Shepard, 544 U.S. at 20-21. Thus, in the present case I would

examine these documents to determine “whether a plea of

guilty to [the Article 92 conviction] necessarily admitted [the]

elements of the [aggravated felony].” Shepard, 544 U.S. at 26.

In other words, we should ask the following question: “in the

course of finding that the defendant violated the statute of

conviction, was the factfinder actually required to find the

facts satisfying the elements of the generic offense?” Aguila-

Montes, 655 F.3d at 936. “[I]n the plea context,” “the modi-

fied categorical approach asks what facts the conviction ‘nec-

essarily rested’ on in light of the theory of the case . . . .” Id.

at 936-37.

The phrases “actually required” and “necessarily rested”

may be subject to varying interpretations, but we have already

elaborated on these concepts in our en banc decision in

Aguila-Montes. In that decision, we said:

9254 AGUILAR-TURCIOS v. HOLDER

Aguila’s argument interprets the concepts of “actu-

ally required” and “necessarily rested” in Taylor and

Shepard in a strictly elemental sense—that is, a pros-

ecutor must be “actually required to prove the

generic elements in every case brought under the

state statute so that a jury’s finding must have “nec-

essarily rested” on that element in every trial brought

under the provision. . . . As a consequence, accord-

ing to Aguila . . . the modified categorical approach

can never demonstrate that the factfinder was “actu-

ally required,” as a formal matter, to find a non-

element fact. . . . In other words, Aguila’s reading of

“actually required” collapses the modified categori-

cal approach into the categorical approach, because

the only time that the factfinder in the state case is

“actually required” to find a particular generic ele-

ment in that way is when conviction under the state

statute always satisfies the generic statutory defini-

tion regardless of the particular facts of the case . . . .

Thus, in order to preserve any role for the modified

categorical approach, “actually required” cannot

mean “actually required by specific words in the

statute of conviction.”

Id. at 936. Rejecting the “strictly elemental” interpretation of

these phrases, we “acknowledge[d] that ‘actually required’

means something like ‘actually required in light of the facts

the defendant admitted’ or ‘actually required in light of the

facts referred to in jury instructions’ . . . .” Id. at 937 (empha-

sis added). This analysis should guide us here.

II

The majority agrees that the modified categorical approach

is applicable, but concludes that under the modified categori-

cal approach, “Aguilar-Turcios’ Article 92 conviction is not

an aggravated felony because the facts on which his convic-

tion ‘necessarily rested’ do not satisfy the elements of either

AGUILAR-TURCIOS v. HOLDER 9255

18 U.S.C. §§ 2252(a)(2) or (a)(4).” Maj. Op. at 9228. But

because the Shepard documents—here, the Record of Trial by

Special Court Martial, at which Aguilar-Turcios pled guilty to

the charges—leave no doubt that Aguilar-Turcios’ conviction

necessarily rested on his admission that he accessed child por-

nography within the meaning of 18 U.S.C. § 2252(a), I cannot

agree.

A

We should have no difficulty finding that Aguilar-Turcios’

conviction for violating Article 92 necessarily shows that he

committed the aggravated felony of knowing possession of

child pornography. This is so for one unavoidable reason: The

only pornography that Aguilar-Turcios admitted to accessing

on his government computer during the plea colloquy was

images of child pornography.

The charging document in this case leaves no room for

doubt about what activities led to Aguilar-Turcios’ conviction

for violating Article 92. The dates of the offenses and the

serial number of the computer charged under Article 92 are

identical to the dates and serial number charged under Article

134, which specifically and exclusively charges knowing pos-

session of child pornography. These are violations of two mil-

itary rules for the same core conduct. Aguilar-Turcios pled

guilty to both charges contemporaneously in a single plea pro-

ceeding.

With regards to the violation of Article 92, the charging

document alleged:

In that Lance Corporal Rigoberto Aguilarturcios,

U.S. Marine Corps, on active duty, did, at or near

Building 7134, Station Armory, Marine Tactical Air

Command Squadron 38, Marine Air Control Group

38, 3d Marine Aircraft Wing, Marine Corps Air Sta-

tion Miramar, San Diego, California, on divers occa-

9256 AGUILAR-TURCIOS v. HOLDER

sions, from on or about 1 November 2001, to on or

about 18 July 2002, violate a lawful general regula-

tion, to wit: Department of Defense Directive

5500.7-R, Section 2-301 . . . , by wrongfully using

a government computer, Fujitsu MPB3032AT (HD),

serial number 03065335 (3.24 gb), to obtain access

to pornographic internet sites.

(emphasis added).

Similarly, the charge for the violation of Article 134 states:

In that Lance Corporal Rigoberto Aguilarturcios,

U.S. Marine Corps, on active duty, did, at or near

Building 7134, Station Armory, Marine Tactical Air

Command Squadron 38, Marine Air Control Group

38, 3d Marine Aircraft Wing, Marine Corps Air Sta-

tion Miramar, San Diego, California, on six (6) occa-

sions, from on or about 1 November 2001, to on or

about 18 July 2002, on a government computer hard

drive, Fujitsu MPB3032AT (HD), serial number

03065335 (3.24 gb), wrongfully and knowingly pos-

sess visual depictions of minors engaging in sexually

explicit conduct . . . .

(emphasis added).

Aguilar-Turcios pled guilty as charged to both of these

charges in the same plea proceeding, and, significantly, both

charges give the same computer hard drive serial number and

the same dates. It is true that the Article 92 charge only

referred to “pornography,” but that is because the charge was

failing to obey a lawful order, and the order was DoD Direc-

tive 5500.7-R, which prohibited inappropriate uses of govern-

ment communications systems, including “uses involving

pornography.”2 For that reason I join the majority in conclud-

2

Aguilar-Turcios’ plea colloquy confirms that the focus was whether he

had “any permission or authority to go to these sites.”

AGUILAR-TURCIOS v. HOLDER 9257

ing that his Article 92 conviction is not categorically an

aggravated felony. The category of “pornography” is a divisi-

ble category, much as is the category of “weapons” we dis-

cussed at length in Aguila-Montes, 655 F.3d at 926-38. As a

divisible category, it is appropriate for us to look at the Shep-

ard documents to see if the pornography Aguilar-Turcios

viewed included child pornography. Id. at 936-37 (even if the

statute of conviction only required proof that the defendant

used a “weapon,” “if the only weapon the defendant admitted

to using was a gun, then we can be confident that the trier of

fact was ‘required’ to find that the defendant used a gun”).

In this case, read as a whole, the charging document, the

plea colloquy, and the exhibits admitted without objection

leave no doubt that Aguilar-Turcios pled guilty to “wrong-

fully and knowingly possess[ing] visual depictions of minors

engaging in sexually explicit conduct.” In connection with the

Article 134 charge, he admitted to the charge that he “pos-

sessed six (6) visual depictions of minors engaging in sexu-

ally explicit conduct,” which he found at “pornographic

internet sites.” During the plea colloquy, the military judge

asked him whether he was viewing “individuals engaged in

sexually explicit conduct,” whether “the people depicted in

these photographs were minors,” and whether he was “actu-

ally in possession of those images.” During the sentencing

portion of the hearing, Aguilar-Turcios’ own counsel con-

firmed with him that he had gone to “child porn sites” and

that he knew it was wrong. The Stipulation of Fact, intro-

duced as an exhibit and relied on by the court martial during

the plea colloquy, provided further detail. Aguilar-Turcios

admitted, in connection with the Article 92 violation, that he

accessed “pornographic internet sites” on the computer in his

workspace. In a signed, written statement, also admitted at his

plea hearing, Aguilar-Turcios confessed that he was searching

on his government computer using terms “like ‘preteen,’

‘nude teens’ or ‘young nude’ or ‘Lolita’ ” from which he

“would get a list of websites with teen or preteen girls.”

Aguilar-Turcios’ admission to viewing “pornographic internet

9258 AGUILAR-TURCIOS v. HOLDER

sites” on the same computer, on the same dates, undoubtedly

refers to the child pornography.

Based on these documents, the military judge must have

found Aguilar-Turcios guilty of an Article 92 violation based

on his viewing of child pornography, as those images are the

only ones specifically mentioned in the factual record pre-

sented during the plea colloquy and supported in the stipula-

tions of fact and statements upon which the conviction relied.3

3

The majority claims that we cannot consider certain admissions made

by Aguilar-Turcios because they are contained in a sworn statement that

was admitted “only at the sentencing phase of his court-martial” rather

than, I assume, during the plea phase. Maj. Op. at 9242 n.20. But the plea

and sentencing occurred on the same day before the same military judge

and are contained in the same transcript. Nothing the Supreme Court has

said and nothing we have said in other cases instructs us to stop reading

the transcript of the judicial body accepting the plea when we believe that

the defendant has finished confirming the facts upon which his plea is

based, even if additional stipulated facts are contained elsewhere in the

same transcript. Quite the opposite, Shepard specifically identifies “the

defendant’s own admissions or accepted findings of fact confirming the

factual basis for a valid plea” as reliable bases for determining the facts

upon which the conviction necessarily rested. Shepard, 544 U.S. at 25.

Our own case law post-Shepard confirms that stipulations of fact form-

ing the basis of a defendant’s plea may be considered under the modified

categorical approach. For example, in Parrilla v. Gonzales, 414 F.3d 1038

(9th Cir. 2005), the petitioner agreed that a Certification for Determination

of Probable Cause (“CDPC”), which described the factual basis for his

criminal prosecution, could be referenced to “determin[e] if there is a fac-

tual basis for [his] plea and for sentencing.” Id. at 1044. We concluded

that because the petitioner “explicitly incorporat[ed] the CDPC into his

guilty plea” by stating that he understood that the court would review the

Certification in determining whether there was a factual basis for his plea,

we could consider it as part of the modified categorical analysis. Id.

Our situation is no different. Here, prior to sentencing, Aguilar-Turcios

entered into a Stipulation of Fact that describes the factual basis for his

plea. The Stipulation makes clear that it can be used for, among other

things, “determin[ing] whether the accused is guilty of the charged

offenses” and “reviewing the case for factual sufficiency.” Just as in Par-

rilla, Aguilar-Turcios’s Stipulation of Fact is “an explicit statement ‘in

which the factual basis for the plea was confirmed by the defendant,’ ” and

therefore a cognizable Shepard document. 414 F.3d at 1044 (quoting

Shepard, 544 U.S. at 26).

AGUILAR-TURCIOS v. HOLDER 9259

As such, a finding that Aguilar-Turcios accessed child

pornography—as opposed to just pornography—was “neces-

sary” to Aguilar-Turcios’ conviction and he “could not have

been convicted of the offense of conviction” without such a

finding. Aguila-Montes, 655 F.3d at 937. A fact that is “neces-

sary” to a conviction must be one that the defendant “has the

incentive to contest . . . even if that fact is not separately listed

as a statutory element of the crime.” Id. at 938. Here, Aguilar-

Turcios had the incentive to contest the accusation that he

accessed child pornography because that charge had been lev-

ied against him in the Article 134 charge. Having elected to

admit to the charge, he cannot now claim that consideration

of that admission is unfair.

The majority nonetheless contends that the only “facts” on

which Aguilar-Turcios’ conviction “necessarily rested” are

(1) his use of a government computer, and (2) using the com-

puter to access pornographic internet sites. Maj. Op. at 9244.

Because Aguilar-Turcios’ admission to those facts “provided

a sufficient factual basis” for his guilty plea, the majority rea-

sons, any facts found beyond those necessary to satisfying

those elements are superfluous and therefore beyond the

bounds of the modified categorical analysis. Id. at 9239. But

this is exactly the “strictly elemental” approach to interpreting

“necessarily rested” and “actually required” that we rejected

in Aguila-Montes. The modified categorical approach should

not be collapsed into the categorical approach in this manner.

We must consider which facts Aguilar-Turcios’ conviction

“necessarily rested” on “in light of the facts the defendant

admitted,” without stripping down the admitted facts to only

their components that align with the elements of the crime of

conviction. Aguila-Montes, 655 F.3d at 937 (emphasis added).

The majority has undermined Aguila-Montes. Aguila-

Montes explicitly overruled the “missing element” rule set

forth in Navarro-Lopez v. Gonzalez, 503 F.3d 1063, 1073 (9th

Cir. 2007), which precluded the use of the modified categori-

cal approach in situations where the crime of conviction is

9260 AGUILAR-TURCIOS v. HOLDER

missing an element of the generic crime. 655 F.3d at 940.

Under the majority’s approach, in a missing element case, we

will never find the factual basis for the missing element

because the only facts on which the conviction will be

deemed to have “necessarily rested” are the facts that mirror

the exact elements of the generic crime. Further, as we said

in Aguila-Montes, “[t]he problem with [the ‘strictly elemen-

tal’ version of the modified categorical approach] is that if we

follow its logic, the modified categorical approach should not

apply to divisible statutes, leaving no room for a modified

approach at all. Even in a divisible statute situation, the fact-

finder is never ‘actually required’ by statute alone to find the

precise elements of the generic crime.” Id. at 935. Before

Aguila-Montes, we were in agreement that at least divisible

statutes were subject to an effective version of the modified

categorical approach. After Aguila-Montes, we were in agree-

ment that even so-called “missing element” statutes were sim-

ilarly covered. The majority’s approach, which is the same

“strictly elemental” approach we rejected in Aguila-Montes,

not only renders our overruling of Navarro-Lopez in Aguila-

Montes ineffectual but also undermines the effectiveness of

the modified categorical approach generally.4

The majority’s approach is the equivalent of willful blind-

ness to the facts Aguilar-Turicos admitted. The “only theory

4

According to the majority, “[t]he dissent argues that by failing to con-

sider Aguilar-Turcios’ factual admissions in connection with his plea of

guilty to the Article 134 charge, we have effectively resurrected the ‘miss-

ing element rule’ from Navarro-Lopez and undermined the holding in

Aguila-Montes and the modified categorical approach in general.” Maj.

Op. at 9235 n.14. But my argument here relates to the majority’s

approach, not specifically to its failure to consider the factual admissions

made in connection with the Article 134 charge, and the majority’s

approach would be problematic even in a case with no second charge

involved. The modified categorical approach cannot limit the facts to be

considered to merely the components of the admitted facts that align with

the elements of the crime of conviction if it is to serve any purpose, yet

that is exactly how the majority construes the modified categorical

approach in its opinion.

AGUILAR-TURCIOS v. HOLDER 9261

the government put forward” revolved around his accessing

child pornography on his government computer. Cf. Aguila-

Montes, 655 F.3d at 938. The majority simply stops reading

the plea colloquy at a point convenient to its theory.

The majority can point to nothing in the record where

Aguilar-Turcios admitted to viewing anything except child

pornography. And even if there were such evidence, it would

be irrelevant. If Aguilar-Turcios admitted to viewing both

adult pornography and child pornography, he has admitted to

viewing child pornography, and he has committed an aggra-

vated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) for which he

may be removed. Arguing that Aguilar-Turcios also might

have been viewing adult pornography does not help his case.5

Because the charging document, the plea colloquy, and the

Stipulation of Fact all demonstrate that the pornography

Aguilar-Turcios admitted to possessing was child pornogra-

phy, the BIA was well within its rights to conclude that his

conviction “necessarily rested” not only on accessing pornog-

raphy, but accessing child pornography. Aguila-Montes, 655

F.3d at 940.

B

The majority takes issue with the idea that Aguilar-Turcios’

admission to possession of child pornography as it relates to

the Article 134 charge would somehow color his admission to

accessing pornographic websites as it relates to the Article 92

charge. Maj. Op. at 9239-44.6 That Aguilar-Turcios explicitly

5

In fact, in one of his written statements introduced at his plea hearing,

Aguilar-Turcios discusses accessing adult porn sites. That fact was mini-

mized as the military judge, the prosecutor, and defense counsel all

focused on his viewing of child pornography.

6

The majority reasons that because Aguilar-Turcios admitted to only six

instances of downloading child pornography, and also to accessing porno-

graphic websites on “divers” occasions, it is “unlikely” that the separate

charges address the same conduct. Maj. Op. at 9243-44. This is a curious

conclusion. The military judge informed Aguilar-Turcios that “divers”

means “on multiple occasions or more than one occasion.” Six occasions

would easily fall within that definition.

9262 AGUILAR-TURCIOS v. HOLDER

admitted to viewing the child pornography in connection with

the Article 134 charge, and not the Article 92 charge, gives

me only brief pause. As the majority appears to concede,

nothing in Taylor or Shepard limits our modified categorical

review to that portion of the charging document or plea collo-

quy that pertains to the specific charge at issue.7 Maj. Op. at

9240. Instead, we are permitted to consult these documents to

determine if the alien was convicted of a removable crime.

The only factual basis on which the military judge could have

found Aguilar-Turcios guilty of an Article 92 violation was

his viewing of the six child pornography images admitted to

in the plea colloquy, as those images are the only ones men-

tioned in the record at the time the military judge accepted the

plea.

The majority, however, contends that “there is no legal pre-

cedent that allows a court . . . to look beyond the record of

conviction of the particular offense that the government

alleges is an aggravated felony.” Maj. Op. at 9240. For sup-

port, the majority relies on Jaggernauth v. U.S. Attorney Gen-

eral, 432 F.3d 1346, 1355 (11th Cir. 2005), which suggests

(but by no means holds) that “ ‘no authority . . . permits the

combining of two offenses to determine whether one or the

other is an aggravated felony.’ ” Maj. Op. at 9240 (quoting

Jaggernauth, 432 F.3d at 1355). But looking to the Article

134 charge in connection with the Article 92 offense is not

“combining” the two offenses to create an aggravated felony

where one may not have existed. Instead, doing so merely

7

The crux of the majority’s reasoning is that because the Article 92 and

Article 134 charges do not “overlap” in either the Stipulation of Fact, Maj.

Op. at 9237, or the plea colloquy, id. at 9237-38, we too must treat them

as separate. To the extent that the majority means that the Stipulation and

the military judge addressed the Article 92 charge first and the Article 134

charge second, I do not disagree. But to say that the charges do not overlap

or that “[t]his is not a case where multiple convictions rested on the same

set of facts,” id. at 9241, is preposterous. The Article 92 and 134 charges

do overlap in that they identify the same computer hard drive serial num-

ber and the same dates in the same charging document.

AGUILAR-TURCIOS v. HOLDER 9263

informs the factual circumstances giving rise to the Article 92

charge. Jaggernauth has no bearing on this case.8

C

The remainder of the majority’s contentions are also unper-

suasive. First, the majority contends that Aguilar-Turcios did

not admit to possessing or receiving pornography in connec-

tion with the Article 92 charge; he only admitted to accessing

pornography.9 Maj. Op. at 9245-46. This is important, the

majority reasons, because “the act of accessing . . . an Internet

site is not the equivalent of possessing or receiving” child por-

nography, and Aguilar-Turcios only admitted to accessing

pornographic websites in connection with his Article 92 con-

viction. Maj. Op. at 9245-46.

The majority might have a valid point here if Aguilar-

Turcios had only admitted to visiting pornographic websites.

While we held in United States v. Romm, 455 F.3d 990 (9th

8

The majority actually adopts a rule different from, and much broader

than, that suggested in Jaggernauth. Exercising what it calls “caution,” the

majority “decline[s] to create . . . authority” permitting courts to consider

admitted facts contained elsewhere in the record other than that portion of

the charging document or plea colloquy that pertains to the specific charge

at issue. Maj. Op. at 9241. Despite this “caution,” the majority has no

qualms with precluding any court from ever doing so where facts are con-

tained in sections of Shepard documents not “at issue on appeal,” no mat-

ter how relevant, or reliable, those facts may be. Maj. Op. at 9241.

9

The relevant statutes in this case require the defendant to either “know-

ingly receive[ ] . . . any visual depiction that has been . . . transported in

interstate or foreign commerce . . . by any means including by computer

. . . if (A) the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and (B) such visual depiction

is of such conduct,” 18 U.S.C. § 2252(a)(2) (2003), or “knowingly pos-

sess[ ] 1 or more books, magazines, periodicals, films, video tapes, or

other matter which contain any visual depiction . . . , if—(i) the producing

of such visual depiction involves the use of a minor engaging in sexually

explicit conduct; and (ii) such visual depiction is of such conduct,” id.

§ 2252(a)(4)(B).

9264 AGUILAR-TURCIOS v. HOLDER

Cir. 2006), that “[i]n the electronic context, a person can

receive and possess child pornography without downloading

it, if he or she seeks it out and exercises dominion and control

over it,” id. at 998; accord United States v. Tucker, 305 F.3d

1193, 1204 (10th Cir. 2002), we limited the scope of Romm

in United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006),

holding that “[w]here a defendant lacks knowledge about the

cache files [where images are automatically saved when por-

nographic websites are visited], and concomitantly lacks

access to and control over those files, it is not proper to

charge him with possession and control of the child pornogra-

phy images located in those files, without some other indica-

tion of dominion and control over the images,” id. at 863. It

is true that “[n]othing in the Shepard documents in this case

establishes that Aguilar-Turcios had knowledge of and access

to whatever images were saved in the cache file on the com-

puter that he used.” Maj. Op. at 9245-46 n.23. But Aguilar-

Turcios also admitted, albeit in the Article 134 context, to

downloading child pornography images and stipulated that he

viewed and “possessed six (6) visual depictions of minors

engaging in sexually explicit conduct.” (Emphasis added.).

Even if accessing pornographic websites does not constitute

possessing or receiving pornography, there can be no question

that Aguilar-Turcios possessed and received child pornogra-

phy when he downloaded child pornography images.

I am equally unpersuaded by the majority’s discussion of

the sexual content Aguilar-Turcios admitted to possessing.

First, the majority contends that the military judge defined

pornography to not only encompass visual depictions, but also

“writings . . . intended primarily to arouse sexual desire.”

Maj. Op. at 9246. The majority reasons that the military

judge’s “definition of pornography” does not “limit Aguilar-

Turcios’ admission to the accessing of images or pictures

only” and suggests that it may also include pornographic writ-

ings. Maj. Op. at 9246. This is, of course, flatly incompatible

with Aguilar-Turcios’ admissions. There is no room for dis-

pute about what Aguilar-Turcios was viewing.

AGUILAR-TURCIOS v. HOLDER 9265

Second, the majority reasons that because the military

judge defined “sexually explicit conduct” in a manner differ-

ent from the definition in 18 U.S.C. § 2256(2)(A), Aguilar-

Turcios’ guilty plea to possessing images of minors involved

in sexually explicit conduct might have involved conduct not

embraced by the federal definition. Maj. Op. at 9246-47.

Here, the military judge defined “sexually explicit conduct”

as “conduct that is plainly or clearly involving sexually [sic]

activity; the organs of sex; or the instincts, drives, or behavior

associated with sexual activity.”10 The federal statute, how-

ever, defines “sexually explicit conduct” as “actual or

simulated—(i) sexual intercourse, including genital-genital,

oral-genital, anal-genital, or oral-anal, whether between per-

sons of the same or opposite sex; (ii) bestiality; (iii) masturba-

tion; (iv) sadistic or masochistic abuse; or (v) lascivious

exhibition of the genitals or pubic area of any person.” 18

U.S.C. § 2256(2)(A). The majority reasons, therefore, that

Aguilar-Turcios could have admitted to possessing images of

minors involved in conduct involving the instincts or drives

of sex without depicting actual sexual intercourse, such as “an

image of minors kissing.” Maj. Op. at 9247-48. Such conduct,

the majority argues, is not encompassed in the federal defini-

tion.

This reasoning strains credulity. Aguilar-Turcios was not

court-martialed, charged and convicted, dishonorably dis-

charged, and placed in removal proceedings for reading

romance novels or watching Shirley Temple movies on his

government computer. We know that he admitted to using his

government computer to access pornographic internet web-

sites and he admitted to using that same computer to down-

load pornographic images of children during the same time

period. There is no need to speculate as the majority does

10

In his signed statements, admitted into evidence at his court martial,

Aguilar-Turcios stated that he understood “child pornography” to mean

“sexual pictures or nude pictures of teens or preteens or pictures of teens

or preteens having sex.”

9266 AGUILAR-TURCIOS v. HOLDER

about what these pictures depicted; even counsel at oral argu-

ment conceded that the pictures accessed by Aguilar-Turcios

were not pictures of children kissing. Copies of the pictures

are part of the administrative record and they leave no doubt

that Aguilar-Turcios pled guilty to possessing images of

minors involved in sexually explicit conduct under both the

federal definition and the one given by the military judge. I

cannot join the majority’s contrary conclusion.

III

The majority’s insistence on rigid formalism when it is not

required is perplexing. A more flexible application of the

modified categorical approach is not only consistent with our

en banc decision in Aguila-Montes, but warranted here

because the reasons for adopting a rigid reading of the Taylor

categorical and modified categorical analysis in the criminal

context are not implicated in civil removal proceedings. See

Nijhawan v. Holder, 557 U.S. 29, 42 (2009) (“[A] deportation

proceeding is a civil proceeding in which the Government

does not have to prove its claims ‘beyond a reasonable

doubt.’ ”); accord Kawashima v. Holder, 615 F.3d 1043, 1056

(9th Cir. 2010) (holding that unlike in criminal proceedings,

“the BIA is not limited to only those documents which a court

applying the modified categorical approach may review”); but

see Maj. Op. at 9232-35.

The categorical/modified categorical analysis developed in

criminal cases, where concerns raised in Apprendi v. New Jer-

sey, 530 U.S. 466 (2000), are front and center. See, e.g., Shep-

ard, 544 U.S. at 24-26 (discussing potential Apprendi

problems if a sentencing court were to consider non-jury

found facts in connection with a sentencing enhancement

under the Armed Career Criminal Act); id. at 26-28 (Thomas,

J., concurring in part and concurring in the judgment) (argu-

ing that the Taylor categorical approach violates the Sixth

Amendment); Taylor, 495 U.S. at 601 (“If the sentencing

court were to conclude, from its own review of the record,

AGUILAR-TURCIOS v. HOLDER 9267

that the defendant actually committed a generic burglary,

could the defendant challenge this conclusion as abridging his

right to a jury trial?”). But this is not a criminal case in which

Aguilar-Turcios might be subject to increased criminal penal-

ties on the basis of judge-found facts, because an alien facing

removal is not entitled to a jury trial to determine whether he

is removable. See Turner v. Williams, 194 U.S. 279, 290

(1904) (“[T]he deportation of an alien who is found to be here

in violation of law is not a deprivation of liberty without due

process of law, and . . . the provisions of the Constitution

securing the right of trial by jury have no application.”). Fur-

thermore, the standard of proof for establishing that an alien

is removable is lower than the standard of proof required for

a criminal conviction. See 8 U.S.C. § 1229a(c)(3)(A) (estab-

lishing that the government has the burden to prove an alien

is removable by “clear and convincing evidence”).11

A statutory concern may arise if the modified categorical

approach is applied more flexibly in the immigration context

because Congress has only made aliens removable for actual

convictions of certain crimes, not for having engaged in cer-

tain elements. See, e.g., 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any

alien who is convicted of an aggravated felony at any time

after admission is deportable.” (emphasis added)); see also

Taylor, 495 U.S. at 600 (“[T]he language of [18 U.S.C.]

§ 924(e) generally supports the inference that Congress

intended the sentencing court to look only to the fact that the

defendant had been convicted of crimes falling within certain

11

In fact, the First Circuit has criticized us for applying our “modified

categorical approach” too strictly in the immigration context. See Conteh

v. Gonzalez, 461 F.3d 45, 54-55 (1st Cir. 2006) (noting that the constitu-

tional concerns motivating the categorical analysis in Shepard and Taylor

are not present in civil immigration proceedings, that the BIA “favor[s] a

less restrictive form of the categorical approach in cases other than those

controlled by Ninth Circuit precedent,” and that the Ninth Circuit’s form

of the modified categorical analysis “impermissibly elevates the govern-

ment’s burden in civil removal proceedings” to “proof beyond a reason-

able doubt.”).

9268 AGUILAR-TURCIOS v. HOLDER

categories, and not to the facts underlying the prior convic-

tions.”). This method of interpreting the statutory language is

motivated by a concern for “the practical difficulties and

potential unfairness” of inquiring into the facts of each indi-

vidual conviction, Taylor, 495 U.S. at 601, and the desire to

avoid what would basically be a retrial of the conviction, see

id. at 601-02. But that concern is not present in this case.

There is no need to retry the facts of the conviction here

because the plea colloquy, charging document, and stipula-

tions of fact are undisputed in the record before us.

This case illustrates precisely why a more flexible approach

to the modified categorical analysis should be embraced when

analyzing civil removal proceedings. There is no doubt that

Aguilar-Turcios is an alien, that he knowingly possessed

images depicting a minor engaging in sexually explicit con-

duct, that those images required a minor actually to engage in

sexually explicit conduct, that he was convicted under the

UCMJ for that crime, and that aliens convicted of knowing

possession of child pornography are removable. Finding oth-

erwise requires a significant indulgence of the “legal imagina-

tion.” See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007); cf. James v. United States, 550 U.S. 192, 207-08

(2002) (“One could, of course, imagine a situation in which

attempted burglary might not pose a realistic risk of confron-

tation or injury to anyone . . . . But ACCA does not require

metaphysical certainty.”). The conduct in question was pre-

sented to Aguilar-Turcios and he had every incentive to dis-

pute it. If the concern motivating the entire categori-

cal/modified categorical exercise in the immigration context

is that courts must be certain of the conduct that an alien com-

mitted before the alien is removed and be certain that the alien

had the opportunity and incentive to contest the relevant facts

related to that conduct, then we need not be worried here that

we are paying improper attention to that motivating concern.12

(Text continued on page 9270)

12

The majority rejects the proposition that we treat criminal and civil

removal proceedings differently because “the Supreme Court has repeat-

AGUILAR-TURCIOS v. HOLDER 9269

edly applied the categorical and modified categorical approaches in immi-

gration cases” in recent years, Maj. Op. at 9233 (citing Kawashima v.

Holder, 132 S. Ct. 1166, 1172 (2012); Carachuri-Rosendo, 130 S. Ct.

2577, 2586-87 (2010); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87

(2007)), and because other circuits have recognized that these approaches

apply in the immigration context, Maj. Op. at 9233-34. I do not disagree

with these unremarkable observations, but the question here is not whether

the categorical (or modified categorical) test should be applied in immi-

gration proceedings, but how it should be applied. Although, we recently

confirmed in Aguila-Montes that the categorical and modified categorical

approaches “establish the rules by which the government may use prior

state convictions . . . to remove certain aliens,” 655 F.3d at 917, nothing

we said in Aguila-Montes (or that the Supreme Court has said in its cate-

gorical/modified categorical jurisprudence) precludes us from considering

whether our application of the test in the immigration context need be as

rigid as it is in criminal proceedings, where constitutional protections are

at their highest. See Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th

Cir. 1986) (“Deportation hearings are deemed to be civil, not criminal,

proceedings and thus not subject to the full panoply of procedural safe-

guards accompanying criminal trials.”). Those cases certainly do not man-

date what the majority holds: that “the categorical and modified

categorical approaches apply . . . in the same manner” in both immigration

and criminal proceedings. Maj. Op. at 9233.

To be clear, I am not proposing that we do away with the categori-

cal/modified categorical approach in the context of immigration proceed-

ings. Nor am I suggesting that the modified categorical approach in

immigration proceedings permits us to look to documents outside the

realm of Shepard, as the majority incorrectly seems to suggest. See Maj.

Op. at 9232. I agree that we may not look beyond the Shepard documents

when conducting our analysis but I emphatically disagree with the major-

ity that we may not conduct “a more expansive review of the Shepard doc-

uments.” Id. at 9242. As I read it, Shepard defines the “documents a court

may consider under the modified categorical approach in order to deter-

mine whether a guilty plea to an offense defined by a nongeneric statute

‘necessarily admitted elements of the generic offense.’ ” Aguila-Montes,

655 F.3d at 921 (emphasis added) (quoting Shepard, 544 U.S. at 26). If

a document is a Shepard document, meaning that it may reliably be con-

sulted as the factual basis for a defendant’s plea, why must we self-redact

the parts we deem unnecessary and forgo an “expansive reading,” if that

expansive reading involves nothing more than considering the document

in its entirety?

9270 AGUILAR-TURCIOS v. HOLDER

IV

The record presented to the BIA and the Immigration Judge

leaves no room for doubt about the conduct to which Aguilar-

Turcios pled guilty. Had he not been in the military at the

time of his offense, or had his conduct occurred off-base, he

could have been prosecuted under either California Penal

Code § 311.11, which tracks precisely the elements of 18

U.S.C. § 2252, or under § 2252 itself, which is statutorily

defined as an aggravated felony, see 8 U.S.C.

§ 1101(a)(43)(I), and his Article 92 conviction “necessarily”

rested on all of the elements of a § 2252 violation.

This is not a close case. Aguilar-Turcios was convicted of

a removable offense, as the BIA properly concluded. I would

deny the petition.

I respectfully dissent.

My point is that our jurisprudence is flexible enough to acknowledge a

distinction between the criminal and civil context, and that we should

apply the modified categorical approach accordingly, especially where, as

here, the considerations suggesting a cautious approach are not present

and where the Shepard documents leave no doubt as to what occurred.