finding an information and minute order insufficient to establish the facts of a prior conviction, stating “a minute order cannot establish the factual elements underlying a plea”
How later courts described this case
- finding an information and minute order insufficient to establish the facts of a prior conviction, stating “a minute order cannot establish the factual elements underlying a plea”
- “a minute order cannot establish the factual elements underlying a plea”
Written by the judges who cited it.
The opinion
HAWKINS, Circuit Judge,
specially concurring:
The majority quite properly holds that we are bound by this court’s prior statement that a state court minute order is not *1192 the type of judicial record we can rely on under Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005). See United States v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir.2006).
I write separately to clarify that we are not presented in this opinion with the question of whether a minute order could be used, together with a charging document, to satisfy the government’s burden of proof of the fact of a prior conviction, where the charged crime categorically qualifies as a requisite crime for purposes of sentencing enhancements. Presumably, this would not present a problem: minute orders share many similarities with abstracts of judgments, see United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir.2004), and our court routinely permits the use of abstracts of judgments, coupled with a charging document, to satisfy this burden. See United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir.2007) (“trial court may rely upon the abstract of judgment and charging document to conclude there is clear and convincing evidence that the defendant had a qualifying conviction under U.S.S.G. § 2L1.2(b)(l)(A)”); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). I thus disagree with the majority’s conclusion that there is “tension” between Diaz-Argueta and these cases, majority opinion at n. 5, because Valle-Montalbo and Rodriguez-Lara did not rely on the abstract of judgment to conduct a modified categorical approach under Shepard/Taylor, but only relied on the document after concluding that the crime of conviction was categorically a requisite crime for sentencing enhancement purposes. Thus, the only remaining issue was whether the government established the fact of a prior conviction, and not the nature of the conviction itself.
The tension exists, in my view, as to whether we may consider these types of documents under Shepard when conducting Taylor’s modified categorical approach. In the cases in which we have disapproved the similar use of an abstract of judgment, the abstract has revealed that the defendant pled to a different crime than that in the charging document. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078-79 (9th Cir.2007); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1029 (9th Cir.2005); see also Navidad-Marcos, 367 F.3d at 908-09 (disapproving use of abstract alone to narrow conduct charged in information). I agree that abstracts of judgment may not independently establish a qualifying conviction, but I do not believe our case law precludes their use altogether when conducting the modified categorical analysis, and especially not when the abstract reveals the defendant pled to the same (narrower) crime as described in the charging instrument.
I concur because I believe we are bound by Diaz-Argueta , but the result may be that abstracts of judgments and minute orders are treated differently in this circuit for purposes of Shepard/Taylor.