concluding that the defendant's prior conviction was a crime of violence where the charging document charged him with two burglaries--one generic (Count 1) and one not (Count 2)--and the minute order of judgment stated only that he entered a nolo contendere plea to Count 1
How later courts described this case
- concluding that the defendant's prior conviction was a crime of violence where the charging document charged him with two burglaries--one generic (Count 1) and one not (Count 2)--and the minute order of judgment stated only that he entered a nolo contendere plea to Count 1
- relying on count one of an information and a minute order stating that the defendant pleaded nolo contendere to “eount[] 1” to conclude the defendant’s conviction was a generic burglary within the meaning of Taylor, even though the minute order did not contain the words “as charged in the information”
- holding that “minute orders” are judicial documents of “equal reliabil- ity” as those listed in Shepard and so may be consulted in applying the modified categorical analysis
- holding clerk’s minute order, prepared by neutral officer of the court and subject to examination and challenge by defendant, sufficiently reliable under Shepard to consider in modified categorical analysis
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Young v. Holder, 697 F.3d 976 (2012)
548 F.3d 699, 702 (9th Cir. 2008) (en 21 banc) abrogated on other grounds by Young v. Holder, 697 F.3d 976, 986
The opinion
*704 GRABER, Circuit Judge,
with whom RYMER, KLEINFELD, HAWKINS, GOULD, and TALLMAN, join, concurring:
I join fully in the court’s opinion but write briefly to respond to the dissent, which asserts that we should reach the question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), would counsel reversal.
Even if we were to consider this un-raised issue, we would have to do so using a “plain error” analysis. See United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006) (“We review unpre-served errors for plain error.” (citing Fed. R.Crim.P. 52(b)); see also United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (“[T]he authority created by Rule 52(b) is circumscribed. There must be an error that is plain and that affect[s] substantial rights.” (internal quotation marks omitted) (second alteration in original)). There is no plain error here.
As the opinion properly notes, Defendant Snellenberger pleaded nolo contende-re to “entering] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter Mac-Pherson, with the intent to commit larceny and any felony.” Majority op. at 701-02 (internal quotation marks omitted) (alteration in original). Whether or not that conduct counts as “generic burglary” under the peculiarities of California law, the act described “involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), to wit, MacPherson. For that reason, we would still have to affirm Snellenberger’s conviction.