United States of America v Strickland - Opinion , 601 F.3d 963 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30091
Plaintiff-Appellee, D.C. No.
v.  6:07-CR-00021-
DENNIS STRICKLAND, CCL-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
September 23, 2009—San Francisco, California
Filed April 19, 2010
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Stephen Reinhardt, Diarmuid F. O’Scannlain,
Pamela Ann Rymer, Sidney R. Thomas, Barry G. Silverman,
Marsha S. Berzon, Jay S. Bybee, Consuelo M. Callahan and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Callahan;
Concurrence by Chief Judge Kozinski;
Concurrence by Judge Thomas;
Dissent by Judge Berzon;
Dissent by Judge Reinhardt
5767
UNITED STATES v. STRICKLAND 5771
COUNSEL
Anthony R. Gallagher, Federal Defendant, and Michael
Donahoe (argued), of Helena, Montana, for defendant-
appellant Dennis Strickland.
Will W. Mercer, United States Attorney, Ryan M. Archer
(argued), Marcia Hurd, and Eric B. Wolff, Assistant United
States Attorneys, of Billings, Montana, for the United States.
5772 UNITED STATES v. STRICKLAND
OPINION
CALLAHAN, Circuit Judge:
Dennis Strickland appeals following his guilty-plea convic-
tion for receipt and possession of child pornography. He chal-
lenges the government’s proof at sentencing that a prior
Maryland conviction for child abuse was a predicate offense
relating to sexual abuse of a minor under 18 U.S.C.
§ 2252A(b)(1) and (2) resulting in an increased statutory
minimum and maximum sentence. To show that the prior
Maryland conviction was a predicate offense, the government
offered a Maryland court docket sheet and sex offender regis-
tration documents signed by Strickland from the states of
Washington and Montana. We affirm the district court’s judg-
ment on the basis that the docket sheet for the Maryland con-
viction establishes that the predicate offense was for sexual
abuse of a child, and accordingly, do not reach the question
of whether the district court could consider Strickland’s sex
offender registration forms.
I
Strickland was charged in a two-count indictment with
Receipt of Child Pornography (Count I), in violation of 18
U.S.C. § 2252A(a)(2), and Possession of Child Pornography
(Count II), in violation of 18 U.S.C. § 2252A(a)(5)(B). He
pleaded guilty to both counts without a plea agreement. Str-
ickland’s presentence report (“PSR”) noted that he had been
convicted in Maryland in 2002 for child abuse.1 The PSR
described the incidents of abuse in graphic detail, and treated
the conviction as a sexual offense. Strickland subsequently
pleaded guilty, and the prior sexual offense triggered height-
ened statutory minimum and maximum sentences.2 The PSR
1
Strickland was convicted under former MARYLAND CODE ART. 27,
§ 35C (currently codified at MD. CODE ANN., CRIM. LAW § 3-601(West
2009)).
2
Strickland’s statutory minimum and maximum sentence for Count I
was increased from 5 to 20 years to 15 to 40 years. See 18 U.S.C.
UNITED STATES v. STRICKLAND 5773
determined that Strickland’s total offense level was 35, his
criminal history category was III, and his advisory sentencing
guideline range was 210 to 262 months.
Strickland objected that his Maryland conviction was not
categorically a predicate offense under 18 U.S.C. § 2252A(b)
and could not be used to enhance his statutory penalties. Str-
ickland reasoned that the Maryland statute proscribed both
physical and sexual abuse of a minor, and was therefore over-
inclusive because a prior conviction solely for physical abuse
would not be a qualifying offense under § 2252A(b). He
argued that the government failed to introduce acceptable
documentation to prove that his prior offense was related to
sexual abuse.3
At the sentencing hearing, the government introduced sev-
eral documents in support of the enhancement. It offered an
uncertified docket sheet from the Circuit Court for Baltimore
County, Maryland, showing that in July 2002, Strickland had
been charged with one count of “child abuse” pursuant to
MARYLAND CODE ART. 27, § 35C; two counts of sexual
offense-fourth degree; two counts of attempted sexual
offense-fourth degree; and one count of perverted practice. In
November 2002, Strickland pleaded guilty to the count of
“child abuse” and the other charges were dismissed. Under
the heading “Docket Information,” the docket sheet stated:
“Registration required under Criminal Procedure Sec. 11-704.
Defendant to register DNA. Defendant is a child sex offend-
er.”
§ 2252A(b)(1). His sentencing range for Count II was increased from “not
more than 10 years” to “not less than 10 years nor more than 20 years.”
See 18 U.S.C. § 2252A(b)(2).
3
Strickland also objected to several other sentencing enhancements in
the PSR, but he abandoned those objections at the sentencing hearing and
they are not part of the instant appeal.
5774 UNITED STATES v. STRICKLAND
The government also offered sex offender registration doc-
uments signed by Strickland from the states of Washington
and Montana. Strickland had registered in these states as
required by their laws when he had moved to those states fol-
lowing his Maryland conviction.
The district court held that the Baltimore County docket
sheet was part of the state court record and therefore could
properly be considered. The court concluded that the docket
sheet was accurate beyond a reasonable doubt given the other
information and evidence before the court, including the two
state sexual offender registration forms. The court overruled
Strickland’s objection and concluded that the PSR calcula-
tions were correct. The court sentenced Strickland to concur-
rent terms of 240 months incarceration on each count of the
indictment.
Strickland appealed and a three-judge panel of our court
affirmed the district court’s judgment, holding that the sex
offender registration forms could be considered when deter-
mining the nature of Strickland’s 2002 Maryland conviction.
United States v. Strickland, 556 F.3d 1069, 1070 (9th Cir.
2009). We then voted to rehear this appeal en banc. United
States v. Strickland, 569 F.3d 956, 957 (9th Cir. 2009).
II
On appeal, Strickland argues that the government failed to
produce judicially noticeable documents sufficient to prove
that his Maryland conviction for child abuse was a predicate
offense under 18 U.S.C. § 2252A(b). He contends that the
court misapplied the modified categorical approach and
improperly relied on the PSR, the Maryland docket sheet, and
the two sex offender registration forms when determining that
his prior conviction was a predicate offense. “We review de
novo a district court’s conclusion that a prior conviction qual-
ifies for a sentencing enhancement.” United States v.
Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008).
UNITED STATES v. STRICKLAND 5775
[1] A defendant convicted for violating § 2252A is subject
to an enhanced sentence if he has a prior state conviction “re-
lating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor.” 18 U.S.C. § 2252A(b)(1),
(2). We have broadly interpreted this statute to apply not sim-
ply to state offenses that are equivalent to sexual abuse, but
rather to “any state offense that stands in some relation, bears
upon, or is associated with that generic offense.” United
States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007).
[2] The determination of whether a prior conviction quali-
fies as a predicate sex offense under § 2252A(b) is governed
by the categorical approach announced in Taylor v. United
States, 495 U.S. 575, 600-02 (1990). The categorical
approach “generally requires the trial court to look only to the
fact of conviction and the statutory definition of the prior
offense.” Id. at 602. This approach requires a comparison of
the elements of the state criminal offense with the predicate
offense as defined in the federal statute. Sinerius, 504 F.3d at
740. Here, the terms “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual conduct involving a minor”
found in § 2252A(b) must be compared with the elements of
the Maryland child abuse statute under which Strickland was
convicted. Under this approach, a conviction under the Mary-
land statute will categorically qualify as a predicate offense
“only if the full range of conduct covered by the [Maryland]
statute falls within the meaning of those terms.” Id.; see also
United States v. Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir.
2006) (“[I]n order for a violation of the state statute to qualify
as a predicate offense, the full range of conduct covered by
the state statute must fall within the scope of the federal statu-
tory provision.”) (internal quotation marks and citation omit-
ted) (alteration in original).
[3] The government here concedes that Strickland’s con-
viction for the Maryland offense of child abuse is not categor-
ically an offense “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor” because
5776 UNITED STATES v. STRICKLAND
at the time of Strickland’s offense the Maryland statute
defined child abuse to include both “physical injury” and
“sexual abuse.”4 The Maryland statute thus covered conduct
that is broader than the conduct contemplated by § 2252A(b),
which requires that the prior offense be related to sexual
abuse to qualify for an enhanced federal sentence. Because
the full range of conduct covered by the Maryland statute
does not fall within the meaning of the federal statute, Strick-
land’s prior conviction is not categorically a predicate offense
under § 2252A(b).
[4] Where, as here, the state statute is broader than the fed-
eral definition of a predicate offense, “we must use the so cal-
led modified categorical approach, which requires us to
determine — if we can — whether the conduct for which the
defendant was convicted fits within the federal definition of
the offense.” United States v. Snellenberger, 548 F.3d 699,
701 (9th Cir. 2008) (en banc) (citing Taylor, 495 U.S. at 602).
In doing so, the Supreme Court has directed that the inquiry
is “generally limited to examining the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16 (2005). This list, however, is illustrative and other
“documents of equal reliability may also be considered.”
Snellenberger, 548 F.3d at 701. Our purpose is to determine
whether documentation or judicially noticeable facts clearly
establish that the defendant pleaded guilty to facts covered by
the predicate offense. United States v. Gomez-Leon, 545 F.3d
777, 783-84 (9th Cir. 2008) (noting that “we may make a lim-
ited inquiry into the facts of the underlying conviction to
determine whether the conviction was based on all of the ele-
ments of a qualifying predicate offense”) (internal quotation
4
See MD. CODE ART. 27, § 35C(a)(2) (2002) (repealed eff. Oct. 1, 2002).
Physical injury and sexual abuse of children are now covered in separate
statutory provisions. See MD. CODE ANN., CRIM. LAW, §§ 3-601, 3-602
(West 2009).
UNITED STATES v. STRICKLAND 5777
marks and citation omitted); United States v. Crawford, 520
F.3d 1072, 1078 (9th Cir. 2008) (noting that a prior offense
may qualify as a career offender predicate offense if “docu-
mentation or judicially noticeable facts clearly establish that
the conviction is a predicate conviction for enhancement pur-
poses”) (quotation marks and alteration omitted).
III
We determine that the docket sheet from the Maryland Cir-
cuit Court clearly establishes that Strickland pleaded guilty to
sexual abuse of a minor, and thus the district court properly
gave him an enhanced sentence. In reaching this conclusion
we determine that: (1) pursuant to our decision in Snellenber-
ger, the district court properly considered the docket sheet; (2)
in this instance, there was no need for the docket sheet to be
certified; and (3) the docket sheet clearly indicates that Strick-
land pleaded guilty to sexual abuse of a minor.
A. The district court properly reviewed the docket sheet.
[5] In Snellenberger, we held that a court may consider a
clerk’s minute order when applying the modified categorical
approach. 548 F.3d at 702. We held that the minute order had
the requisite reliability because (1) it was “prepared by a court
official at the time the guilty plea is taken (or shortly after-
ward),” (2) the “official is charged by law with recording the
proceedings accurately,” and (3) “the defendant had the right
to examine and challenge its content.” Id.
[6] The docket sheet from the Circuit Court of Maryland
meets these criteria. First, the Maryland Rules provide that the
clerks of Maryland Circuit Courts are responsible for main-
taining dockets. Md. Rule 16-305. Second, Maryland law pro-
vides that the court clerk has “custody of the books, records,
and papers of his office” and shall “[m]ake proper legible
entries of all proceedings of the court and keep them in well-
bounded books or other permanent form.” MD. CODE ANN.,
5778 UNITED STATES v. STRICKLAND
CTS. & JUD. PROC. § 2-201(a)(1)-(2) (West 2009). Moreover,
Maryland Rule 8-202(f) states that entry of a judgment in a
case “occurs . . . when the clerk . . . first makes a record in
the writing of the judgment . . . on the file jacket, on a docket
within the file, or in a docket book . . . and records the actual
date of the entry.” We determine that under the applicable
state law, the docket sheet meets the first two criteria set forth
in Snellenberger for use of a document by a court when deter-
mining whether “the conduct for which the defendant was
convicted fits within the federal definition of the offense.”
548 F.3d at 701.
[7] Our review of Maryland case and statutory law shows
that the docket sheet also meets the third prong of the Snellen-
berger standard. Rule 4-621 of the Maryland Rules states that
“[c]lerical mistakes in . . . parts of the record may be cor-
rected by the court at any time on its own initiative, or on
motion of any party after such notice.” The rules also provide
that “[o]n motion or on its own initiative, the appellate court
may order that an error or omission in the record be correct-
ed.” Md. Rule 8-414(a). Furthermore, Maryland courts have
held that mistakes in the docket entry should be corrected.
Caldwell v. State, 884 A.2d 199, 220 (Md. Ct. Spec. App.
2005) (holding that the clerk must correct the docket entries
to reflect the not guilty verdict reflected in the transcript).
Accordingly, we conclude that Strickland and his counsel had
the right under Maryland law to examine and challenge the
content of the docket sheet. Indeed, Strickland has not con-
tended otherwise.
B. In this instance, the docket sheet did not have to be
certified.
Despite existing Maryland law, Strickland argues that the
district court should not have considered the docket sheet
because it was not certified. When pressed at oral argument,
counsel could not offer any reason for questioning the accu-
racy of the docket sheet, but nonetheless asserted that unless
UNITED STATES v. STRICKLAND 5779
it was certified the docket sheet could not be considered.
Some support for this position might be extracted from the
fact that “the government bears the burden to demonstrate that
the prior conviction was a qualifying offense.” Gomez-Leon,
545 F.3d at 785; see also United States v. Kelly, 422 F.3d 889,
895 (9th Cir. 2005) (noting that “the government has the bur-
den to establish clearly and unequivocally the conviction was
based on all of the elements of a qualifying predicate
offense”) (internal quotation marks and citation omitted).
[8] This burden, however, does not require that the govern-
ment routinely provide a certified copy of a docket sheet or
minute order, at least where, as here, there is no reason to
question the proffered docket sheet’s authenticity or content.
Although certification was not raised in Snellenberger, our
conclusion that certification is not a prerequisite to consider-
ation of a docket sheet flows from our discussion of a defen-
dant’s responsibility to challenge a minute order.5 In
Snellenberger, we held that a defendant’s ability to check the
case file and to ensure its accuracy, coupled with defense
counsel’s professional obligation to do so, allowed a court to
find that a minute order met the reliability standard set forth
in Shepard. Snellenberger, 548 F.3d at 702. Pursuant to this
5
We wrote:
It’s not clear from the record whether parties to a criminal case
in California are given copies of the clerk’s minute order at the
time it is placed in the case file, but there is certainly no sugges-
tion that it’s a secret document. A defendant can always check
the case file and ensure that any materials placed there accurately
reflect the proceedings; presumably, doing so is part of every
criminal defense lawyer’s professional obligation. In any event,
by analogy to transcripts, it’s enough that the minute order was
prepared by a neutral officer of the court, and that the defendant
had the right to examine and challenge its content, whether or not
he actually did. Having failed to challenge or correct the minute
order in state court — perhaps because there wasn’t a basis for
doing so — Snellenberger is now bound by what it says . . . .
Snellenberger, 548 F.3d at 702.
5780 UNITED STATES v. STRICKLAND
approach, the fact that a docket sheet is not certified is not, in
itself, a legitimate ground for questioning its reliability.
Rather, in light of the ability of a defendant to check the case
file and the obligation of counsel to do so, a docket sheet, reg-
ular on its face, is entitled to a presumption of authenticity. Of
course, if the defendant offers any reasonable ground for
questioning the document, a district court may require that the
document be certified or otherwise authenticated. However,
here, counsel offered no reason to question the docket sheet.
Accordingly, we hold that even without certification, the
docket sheet, which Maryland law requires be prepared and
maintained by a court clerk, and which defendant has a right
to review and correct, is of sufficient reliability under Shepard
and Snellenberger. Thus, the district court properly consid-
ered it in determining whether Strickland was convicted of
sexual abuse of a minor.6
C. The docket sheet clearly indicates that Strickland
pleaded guilty to sexual abuse of a minor.
[9] Although the docket sheet is not a model of clarity, a
fair reading of the document leaves no doubt that Strickland
pleaded guilty to “abusive sexual conduct involving a minor.”
18 U.S.C. § 2252A(b)(1), (2). It is true that the statute to
which he pleaded guilty, MARYLAND CODE ART. 27§ 35C,
included both “physical injury” and “sexual abuse” of a child.
However, two entries on the docket sheet confirm that the
plea was to sexual abuse. First, the docket sheet states, “De-
fendant is a child sex offender.” As Strickland only pleaded
guilty to one count, that count must be the basis for this deter-
mination. Certainly, if it were inaccurate, Strickland or his
attorney could have objected as allowed by Maryland law. See
6
As our analysis makes clear, we hold that the district court properly
relied upon the docket sheet because Maryland’s numerous statutes and
rules ensure that it complies with the requirements we announced in Snel-
lenberger. We express no opinion as to whether a different state’s docket
sheet would pass muster under those requirements.
UNITED STATES v. STRICKLAND 5781
Caldwell, 884 A.2d at 220. Second, the docket sheet states:
“Registration required under Criminal Procedure Sec. 11-704.
Defendant to register DNA.” Section 11-704(a) requires regis-
tration of sexual offenders and child sexual offenders. MD.
CODE ANN., CRIM. PROC. § 11-704(a) (West 2009). Because
Strickland pleaded guilty to a single count, the requirement
that he register under § 11-704(a) confirms that the plea was
to sexual abuse rather than physical abuse of a child.7 Thus,
the only fair reading of the docket sheet is that Strickland
pleaded guilty to sexual abuse of a minor.
IV
The modified categorical approach is not a judicial version
of three-card monte. Rather, the challenge is to determine
whether a conviction under a non-categorical state statute was
clearly based on facts that meet the federal generic definition
of the crime. See Taylor, 495 U.S. at 600-02; Shepard, 544
U.S. at 25; Snellenberger, 548 F.3d at 701. Here, the docket
sheet, like the minute order in Snellenberger, has the requisite
reliability to be considered and allows for no reasonable con-
clusion other than that Strickland pleaded guilty to sexual
abuse of a child. Nothing more is required by statute or case
law.8 Accordingly, the district court’s enhancement of Strick-
land’s sentence is AFFIRMED.
7
Section 11-704(a) requires the registration of “a child sexual offender,”
an “offender,” a “sexually violent offender” and a “sexually violent preda-
tor.” Strickland was not alleged to be a “sexually violent offender” or a
“sexually violent predator.” Accordingly, the registration requirement was
premised on Strickland being a “child sexual offender” unless there is
some plausible argument that he might have been an “offender,” and that
an “offender” might include a person who had not engaged in abusive sex-
ual conduct involving a minor. There is no such argument because under
the definition of “offender” set forth in Section 11-701(h) of the Maryland
Code of Criminal Procedures, the only definitions of “offender” that fit the
charge against Strickland involve abusive sexual conduct with a minor.
8
We express no opinion on the propriety of the district court’s consider-
ation of Strickland’s sex offender registration forms.
5782 UNITED STATES v. STRICKLAND
KOZINSKI, Chief Judge, concurring:
While I concur with much of the majority opinion, I agree
with Judge Reinhardt that the failure to decide whether the
district court erred in relying on Strickland’s sexual offender
registration forms is both wrong and unfortunate. It’s wrong
for the reasons given by Judge Reinhardt and one more: The
district judge below relied on the registration forms in finding
that Strickland had been convicted of a predicate offense
under 18 U.S.C. § 2252A(b)(1); we don’t know whether he
would have made the same finding in the absence of the
forms. If his reliance on the registration forms was improper
as a matter of law, we should remand and give the district
judge an opportunity to make findings without relying on any
improper documents.
Which brings me to why it’s unfortunate that the majority
doesn’t address the registration forms. As this case illustrates,
obtaining reliable information about past convictions—some
going back many years or decades—can be difficult. The evi-
dence that the government presented here is marginal. The
docket sheet, on which the majority relies in affirming the dis-
trict court, suffers from the defects Judge Berzon points out
in her dissent. Berzon Dissent at 5793-94. Had Strickland pre-
served the argument that the lack of authentication or certifi-
cation barred the district court from relying on the docket
sheet, I’m not at all sure we could affirm, as there is almost
nothing in the record about what this document is or where it
came from. But Strickland waived that argument. In his open-
ing brief he refers to the document as “an uncertified State
court docket sheet.” He thus concedes it’s a docket sheet but
doesn’t argue that the district court erred in relying on it
because it’s uncertified. The government’s brief, naturally,
says nothing on this point. This important issue should be
decided in a case where the parties actually brief it so we can
make an informed decision. I would therefore deem that
objection waived. See, e.g., Dream Games of Ariz., Inc. v. PC
Onsite, 561 F.3d 983, 994-95 (9th Cir. 2009).
UNITED STATES v. STRICKLAND 5783
That said, it would certainly have been better if the govern-
ment had produced the “agreed statement of facts” that Judge
Berzon refers to in her dissent. Berzon Dissent at 5795. This
document sounds like it falls squarely within the ambit of
Shepard v. United States, 544 U.S. 92 (2005), and would have
eliminated all cavil as to whether Strickland was convicted of
a sex crime. Judge Berzon accuses the government of sloth,
but I suspect the problem is actually one of unavailability:
The case materials pertaining to Strickland’s 2002 Maryland
conviction may not be available at all, or available only with
great difficulty. This may be typical of many cases across the
country, particularly those from the era before electronic case
filing. The kind of evidence the Supreme Court described in
Shepard, 544 U.S. at 26—the charging document, the terms
of a plea agreement, the transcript of a colloquy in which
defendant confirms the factual basis for his plea—may not be
available for many convictions that serve as predicates for
federal sentencing enhancements.
Hence the significance of sex offender registration forms:
They are ubiquitous, locally available and frequently updated.
Most importantly, they are personally signed by defendants
pursuant to a legal obligation backed by criminal penalties.
The government here was able to come up with three such
forms signed by Strickland over the course of two years, all
certifying that he had been convicted of a sex offense. The sex
offender change-of-address form Strickland filed with the
City of Great Falls on August 4, 2006, has an attached data-
base printout that describes his crime as “Maryland Sexual
Child Abuse” and provides the precise date of Strickland’s
sentencing. The Montana Department of Justice form Strick-
land signed on February 8, 2006, notes that Strickland was
sentenced for the Maryland offense in November 2002, and
identifies it as a sexual offense involving Strickland’s 16-
year-old step-son. These documents, when taken together
with the docket sheet, leave no room for doubt that Strickland
was previously convicted of a crime “relating to . . . abusive
5784 UNITED STATES v. STRICKLAND
sexual conduct involving a minor or ward.” 18 U.S.C.
§ 2252A(b)(1).
This kind of problem is sure to arise again, so it’s important
to decide whether sex offender registration forms may be used
to clarify the nature of a prior conviction or guilty plea under
the modified categorical approach of Taylor v. United States,
495 U.S. 575 (1990). By ducking the question, the majority
leaves the field to the dissenters, who present a superficially
plausible argument that the district court’s reliance on such
records violated Shepard, 544 U.S. at 24-26. I present the
contrary view, lest my agreement be inferred from silence.
The most one can say about Shepard is that it doesn’t affir-
matively authorize the use of these registration forms. This
may be because the Shepard majority wanted to limit the Tay-
lor inquiry to a narrow range of judicially-created documents
(as the dissenters here argue), but more likely it’s because the
Court wasn’t thinking about registration forms and other post-
conviction admissions by the defendant. Shepard dealt with
statements made and documents created at the time the plea
was entered and the Court thus had no occasion to address
any admissions made by the defendant at a later point in time.
When Shepard pleaded guilty to his earlier crime, the
police reports were not part of the plea agreement and Shep-
ard therefore did not admit to them by pleading guilty. Nor
did the police reports have any judicial imprimatur; for all we
know the judge who accepted the guilty plea was not even
aware of them and certainly did not adopt them as true. The
Supreme Court therefore held that the police reports couldn’t
be considered in determining the nature of that conviction.
Some of the Court’s reasons involved practical considerations
about avoiding “collateral trials” and “evidentiary disputes.”
Shepard, 544 U.S. at 19-23 & n.4. Equally significant, how-
ever, was the concern that importing a third-party narrative to
which defendant didn’t affirmatively assent would violate the
rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
UNITED STATES v. STRICKLAND 5785
See Shepard, 544 U.S. at 24-26; id. at 26-28 (Thomas, J., con-
curring). The Shepard plurality and Justice Thomas were con-
cerned that the factual reconstruction process would bind
defendants to facts (there, Shepard’s entry into a building)
that they never admitted and that no jury had found beyond
a reasonable doubt.
Our case is materially different. The government here is not
trying to saddle Strickland with facts to which he never
assented. Rather, the government asks us to determine what
facts Strickland did admit. The best evidence of that would be
the agreed factual statement presented with his plea, the plea
colloquy or some similar document contemporaneous with the
plea itself. But almost as good would be Strickland’s own
admission, in open court, that his prior conviction was for
sexually abusing a child, as such an admission complies with
Apprendi. See United States v. Booker, 543 U.S. 220, 244
(2005) (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” (emphasis added)).
Sex offender registration forms are not quite the same as in-
court admissions, but they share many of the same attributes:
They are personally assented to by the defendant; they are
official, formal statements made in an environment where the
necessity of being truthful is likely to be impressed on the
registrant; filling them out is strongly against the registrant’s
personal interest, as being a registered sex offender will likely
make him an outcast in the community; they do not attempt
to reconstruct or re-interpret the facts and circumstances of
the earlier crime, but merely report the prior conviction; and
the registrant is speaking pursuant to an obligation imposed
by law, which requires that the information provided be truth-
ful and accurate.
Some registrants may not seek advice of counsel before
completing a registration form, though I’m certain many do
5786 UNITED STATES v. STRICKLAND
consult lawyers before filling out forms that they must find
oppressive and odious. It’s entirely possible that a registrant
may be mistaken about his obligation to register, though I’m
reasonably confident that—just as people seldom commit tax
errors in the government’s favor—far more people mistakenly
fail to register than those who mistakenly sign up. But this
risk of error, just like that in the minute order we approved in
United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.
2008) (en banc), isn’t fatal. If a defendant is confronted with
a registration form that he signed in error, he can try to amend
the form, see id., or explain the error and present contempora-
neous records showing that he was not actually required to
register as a sex offender. I don’t see what’s unfair or
improper about placing on defendant the burden of showing
that a registration form he signed before a witness, under pen-
alty of law, does not prove what it purports to say on its face.
Judge Berzon argues that the forms in this case “do not
include direct admissions by Strickland,” Berzon Dissent at
5798, because Strickland’s signature generally appeared on
pages of each form different than those containing the most
incriminating information. I don’t see why a signature on the
last page of a multi-page form doesn’t indicate assent to the
entire document. See, e.g., 2 Williston on Contracts § 6:44
(4th ed., West 2009) (“[W]here an offeree signs a document
it is generally held to be bound by the document’s terms, even
if the offeree signs in ignorance of those terms.”). Take the
Montana Department of Justice form, which is only two
pages. On page one it notes that Strickland’s offense was
“sexual” rather than “violent” or “both,” and has a box
labeled “Sex Offender Treatment Status,” showing that Str-
ickland “Completed Treatment” in “April 2005.” And on the
second page, just three lines below Strickland’s signature, it
clearly says that it’s a two-page form, so we know that the
page with Strickland’s signature wasn’t simply attached after-
the-fact. Moreover, Strickland’s signature certifies that he
“understand[s his] duty to register.” By certifying that he
understands his duty to register on a form which expressly
UNITED STATES v. STRICKLAND 5787
predicates that duty on his prior sexual offense, Strickland
clearly acknowledged the sexual nature of his prior convic-
tion.
Judge Berzon’s objection to the use of these forms is, in
any event, a side-show. The question we must decide is
whether sex offender registration forms, in general, may be
relied on by a district court. That these forms are more ambig-
uous than Judge Berzon would prefer is neither here nor there.
Many other defendants will have signed much clearer forms
and the alleged ambiguity of these forms has no bearing on
the larger question of whether such forms are usable at all.
See, e.g., Snellenberger, 548 F.3d at 702 (authorizing the use
of any minute order that “conform[s] to the essential proce-
dures described above”).
In any event, the registration form wouldn’t be sufficient by
itself to support a finding that a defendant had committed the
predicate offense. Under the approach advanced by the gov-
ernment, the form would have to be supported by evidence
from the court of conviction that defendant had, in fact, been
convicted of a crime that could serve as a predicate offense.
The registration form—constituting defendant’s own admis-
sion of the prior offense—could resolve any ambiguity about
what crime he had long ago been convicted of. Such ambigui-
ties are bound to arise with some regularity, depending on the
completeness and efficacy of record-keeping by the thousands
of court systems in the United States. It is unwise to turn our
backs on registration forms as a tool for resolving them.
Unless and until the Supreme Court holds otherwise, I would
hold that district courts may consider these forms, in conjunc-
tion with other evidence, to determine whether a defendant’s
prior conviction is a qualifying predicate offense.
Because the district court here considered Strickland’s reg-
istration forms together with the docket sheet, and the docu-
ments together leave no doubt that his Maryland conviction
was for sexual conduct involving a minor or ward, I would
5788 UNITED STATES v. STRICKLAND
endorse what the district court did here and affirm on that
basis.
THOMAS, Circuit Judge, concurring:
I agree with Judge Berzon that docket sheets, as a general
category, are not inherently reliable and do not qualify as doc-
uments that satisfy the rigorous standard necessary to be used
as conclusive proof of a prior conviction. Shepard v. United
States, 544 U.S. 13, 21 (2005); United States v. Navidad-
Marcos, 367 F.3d 903, 908 (9th Cir. 2004).
However, I am persuaded, under the unique circumstances
of this case, that the tendered evidence was sufficient to prove
that the defendant’s Maryland conviction for child abuse was
a predicate offense under 18 U.S.C. § 2252A(b). Therefore, I
concur in Judge Callahan’s majority opinion.
The majority opinion does not reach the question as to
whether the registration documents qualify as judicially
noticeable documents sufficient to satisfy the requirements of
Shepard and its progeny. If I were to reach that question, I
would agree with Judge Berzon that they do not. Therefore,
I join the observations contained in Section III of Judge Ber-
zon’s dissent, although it does not affect my joinder of the
majority opinion.
BERZON, Circuit Judge, with whom Judges SCHROEDER
and REINHARDT join, and with whom Judge THOMAS
joins as to Part III, dissenting:
Dennis Strickland was convicted of receipt and possession
of child pornography. He was sentenced pursuant to 18
U.S.C. § 2252A, which permits a sentencing enhancement if
UNITED STATES v. STRICKLAND 5789
the defendant has a prior state conviction “relating to aggra-
vated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor.” Id. Strickland’s prior conviction was for
child abuse, an offense that, under Maryland law, encom-
passes both physical and sexual abuse of a child. It is not cate-
gorically a predicate offense under § 2252A.
The majority now holds that a Maryland state court docu-
ment is adequate to prove that Strickland was convicted of a
sexual offense. The majority concludes, essentially, that what
it refers to as the “docket sheet” in Strickland’s Maryland
conviction is “close enough” to the minute order we approved
in United States v. Snellenberger, 548 F.3d 699, 701-2 (9th
Cir. 2008), to form the basis for judicial enhancement of his
criminal sentence. This conclusion is wrong for three reasons:
First, docket sheets, as a general category, are not inherently
reliable. Second, the Maryland statutes and court rules cited
by the majority do not demonstrate that docket sheets created
in Maryland state courts meet the Snellenberger criteria.
Third, the specific document the majority describes as a
docket sheet and views as conclusively proving that Strick-
land committed a sexual offense is actually a document of
some other kind, was not created at the time of his guilty plea,
and does not contain a description of the offense of conviction
that unambiguously meets the federal criteria. Because the
document relied upon by the majority does not satisfy the “de-
mand for certainty when identifying a generic offense”
required by Shepard v. United States, 544 U.S. 13, 21 (2005),
I dissent.
I.
As the Supreme Court explained in Apprendi v. New Jer-
sey, 530 U.S. 466, 490 (2000), “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” This rule
is founded on “constitutional protections of surpassing impor-
5790 UNITED STATES v. STRICKLAND
tance,” namely the Sixth Amendment right to trial by an
impartial jury. Id. at 476.
Because the constitutional rights at stake are so central in
criminal cases, “documents used to satisfy a modified-
categorical analysis must meet a rigorous standard.” United
States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004)
(internal quotation omitted). The record must “unequivocally
establish[ ]” that the defendant was convicted of the generi-
cally defined crime. Id. The sentencing court may determine
whether a guilty plea necessarily required the defendant to
admit the elements of the generic offense by reference to “the
charging document . . . a plea agreement or transcript of collo-
quy between judge and defendant . . . or [ ] some comparable
judicial record.” Shepard, 544 U.S. at 26.
Docket sheets are, as a general proposition, simply not as
reliable as the documents approved in Shepard. Nor are they
as reliable as the minute order we approved in Snellenberger.
Minute orders are prepared at the time of the judicial action
in question by a clerk who is present and observing the pro-
ceedings. Docket sheet entries are often made after the fact
based on review of pertinent judicial documents. The process
of transposing information onto docket sheets can result in
error far more frequently than contemporaneous recording of
judicial events by a direct observer.
Indeed, errors on docket sheets are so common that courts
often assume discrepancies between conflicting documents
have resulted from a clerical error on a docket sheet entry. As
we have recognized, elementary oversights in data entry can
result in unconstitutional deprivations of liberty. See Oviatt v.
Pearce, 954 F.2d 1470, 1476 n.4 (9th Cir. 1992) (holding that
a county jail system could be held liable under 42 U.S.C.
§ 1983 for failing to “have some check on the ability of a sin-
gle clerical error to result in prolonged incarceration without
arraignment, a bail hearing, or a trial” after the plaintiff was
held for 114 days without trial).
UNITED STATES v. STRICKLAND 5791
The case law is replete with references to docket sheet
errors involving dates on which judgments or motions were
filed. See Voravongsa v. Wall, 349 F.3d 1, 2 n.2 (1st Cir.
2003); Missouri v. Ring, 86 S.W.3d 481, 481 n.3; Curiel v.
Fleker, 558 F. Supp. 2d 1047, 1052 (C.D. Cal. 2008); Sec.
Exch. Comm’n v. Breed, No. 01 Civ. 7798 (CSH), 2004 WL
1824358, at *8 n.2 (S.D.N.Y. Aug 13, 2004) (“Confusingly,
there appear[ ] to be two errors in the Clerk of the Court’s
docket sheet. . . . Perhaps the lesson to be learned is that attor-
neys should not merely trust the docket sheet to provide nec-
essary deadlines.”); Browning v. Walters, 620 N.E.2d 28, 30
(Ind. Ct. App. 1993); Guardianship of Hurley, 476 N.E.2d
941, 943-44 & n.4 (Mass. 1985) (observing that the docket
sheet reflected that the plaintiff filed a motion to amend his
petition over five months after he actually filed it); Pemiscot
County Mem’l Hosp. v. Bell, 770 S.W.2d 499, 501 (Mo. Ct.
App. 1989) (noting that the docket sheet recorded the notice
of appeal as being filed eighteen days after it was actually
received).
Docket sheets also often contain substantive errors. Stafford
v. Ward, 60 F.3d 668, 669 n.3 (10th Cir. 1995) (assuming that
a missing notation was more likely an error on the docket
sheet than an indication that a record was not transmitted to
state court judges); United States v. Ewing, 445 F.2d 945, 947
n.3 (10th Cir. 1971) (noting that the docket sheet erroneously
indicated that the jury had returned a verdict of not guilty,
leading to the impression that the appellant had been retried
on a count of which he’d been acquitted); Panko v. Eighth
Judicial Dist. Court, 908 P.2d 706, 707 n.2 (Nev. 1995)
(observing that the docket sheet failed to list a real party in
interest); Ferrell v. Wall, 971 A.2d 615, 622 (R.I. 2009) (“The
docket sheet . . . indicates that . . . the motion to reduce appli-
cant’s sentence . . . had been withdrawn . . . . The docket sheet
entry must be in error.”).
Docket errors may also result in records that reflect a con-
viction for a crime other than that to which the defendant pled
5792 UNITED STATES v. STRICKLAND
guilty. In Homan v. Hughes, 708 S.W.2d 449 (Tex. Ct. App.
1986), the court denied relief to a petitioner who challenged
the trial court’s nunc pro tunc adjustment of his conviction
after a significant error was discovered. The clerk’s affidavit
read:
The defendant . . . pled guilty to the offense of
aggravated robbery. . . . The defendant signed his
plea papers . . . reflecting his plea was to aggravated
robbery. For some reason, when I prepared the judg-
ment and sentence in this case, I incorrectly showed
the defendant pled to a reduced charge of robbery. .
. . Subsequently, I discovered the mistake.
Id. at 454 n.4.
In light of the error-prone nature of docket sheets, a district
court could not with certainty rely on one without inspecting
the state statutes and regulations that govern the creation and
maintenance of docket sheets to ensure their accuracy. That
is not what Shepard approved. In any event, the Maryland
rules and statutes on which the majority relies do not establish
that guilty pleas are entered into the docket sheet “at the time
the guilty plea is taken [ ] or shortly afterward.” Snellenber-
ger, 548 F.3d at 702. Nor do Maryland Rule 16-305 or the
Maryland Code provision cited by the majority contain any
reference to the clerk’s duty to enter promptly sentences, con-
victions, or judgments generally. Maryland Rule 8-202(f),
similarly, merely states that “entry” of judgment occurs, for
the purposes of starting the thirty-day period during which
notice of appeal may be filed, “on the day when the clerk of
the lower court first makes a record in writing of the judg-
ment, notice, or order on the file jacket, on a docket within the
file, or in a docket book.” Md. R. 8-202(a), (f). Nothing in this
multifarious provision assures that the entry of judgment is
even made on a docket sheet, much less that the docket sheet
is accurate. Moreover, our approval of the minute order in
Snellenberger hinged on the fact that such orders are created
UNITED STATES v. STRICKLAND 5793
“when judgment upon a conviction is rendered.” 548 F.3d at
701 (quoting Cal. Penal Code § 1207) (brackets omitted).
There is nothing in the Maryland code or court rules prevent-
ing the clerk of the court from recording the conviction
weeks, months, or years after the judgment is rendered.
If there are any states in which the clerk of court’s legal
duties guarantee the accuracy and timely entry of their docket
sheets, Maryland is not among them.
II.
In fact, the particular Maryland document at issue here
proves the fallibility of docket sheets and similar documents.
The information which, according to the majority, proves that
Strickland was convicted of a sexual offense was assuredly
not entered at the time of his conviction. The document
(which I refer to as “the Document” for lack of any indication
of what it actually is) has no heading and seems to have been
generated as a result of a probation revocation proceeding.1
The Document shows, under the heading “Charge and Dispo-
sition Information,” that Strickland’s conviction for child
abuse was entered on November 6, 2002. A segment of the
Document titled “Document Tracking” contains, among other
materials reporting the content of related documents, “docket
information” as of November 4, 2005, and is headed “Dock-
et.” This section includes, after the date November 6, 2002,
the statements “Registration required under Criminal Proce-
dure Sec. 11-704. Defendant to register DNA. Defendant is a
child sex offender.” The Document also bears the notation
“[c]ase data converted on 11/04/2005.” This note suggests
that the November 4, 2005 entry includes information ostensi-
bly reproduced from the docket sheet in Strickland’s 2002
conviction, but it does not with the required “certainty,” Shep-
ard, 544 U.S. at 21, establish that the “case data” was “con-
verted” from a document created at the time of the waiver of
1
A copy of the Document is attached to this dissent.
5794 UNITED STATES v. STRICKLAND
jury trial, conviction, or sentencing, or that it was reproduced
accurately.
Moreover, none of several entries for November 2002 that
appear under “Docket” on the 2005 Document states unequiv-
ocally that the conviction was for sexual abuse. One entry
does state that “Registration is required” under the sex
offender statute and that “Defendant is a child sex offender.”
Neither comment directly ties the registration requirement or
the status to the crime of conviction.
In short, it appears the only information indicating that the
child abuse conviction was for a sexual offense was entered
on the Document three years after the guilty plea, conviction
and sentencing. It would be plausible to infer that the 2005
“Docket” entry describing events of November 6, 2002 was
created by cutting and pasting a docket sheet entry that was
created earlier. “Inferences, however, are insufficient under
the modified categorical approach.” Cisneros-Perez v. Gonza-
lez, 465 F.3d 386, 393 (9th Cir. 2006). The Document also
indicates that Strickland was at some point convicted of a sex-
ual offense. But the sentencing judge necessarily had to draw
an inference from the confusing and ambiguous Document to
find as a “fact” that the particular conviction in question was
for child sexual abuse. By doing so, the district court compro-
mised Strickland’s constitutional rights, as protected under
Apprendi, to a trial by jury of uncertain facts essential to the
sentence.
It is worth noting, in this connection, that Almendarez-
Torres v. United States, 523 U.S. 224, 243-47 (1998), created
a narrow exception whereby the fact of a prior conviction
need not be alleged in an indictment or proven to a jury
beyond a reasonable doubt. Subsequent cases illustrate that
Almendarez-Torres stands on shaky constitutional ground,
giving rise to an obligation strictly to police, rather than to
expand, the parameters of that exception lest it topple as
entirely without basis. See Shepard, 544 U.S. at 25 (caution-
UNITED STATES v. STRICKLAND 5795
ing that Almendarez-Torres does not permit a sentencing
judge to resolve any fact that “can be described as a fact about
a prior conviction”); Apprendi, 530 U.S. at 487, 489 (charac-
terizing Almendarez-Torres as “arguabl[y] . . . incorrectly
decided” and “at best an exceptional departure from” the
Court’s sentencing jurisprudence); United States v. Booker,
543 U.S. 220, 244 (2005) (reaffirming Apprendi); Butler v.
Curry, 528 F.3d 624, 643-45 (9th Cir. 2008) (emphasizing
that the “exception applies only to facts directly reflected in
the documents of conviction, not to secondary facts that are
derived or inferred from . . the conviction documents” or to
“documents that were not developed as a result of [a process
with Sixth Amendment safeguards]”) (internal quotation
omitted). We have accordingly held that Apprendi precludes
us from broadening Almendarez-Torres to encompass past
juvenile convictions, United States v. Tighe, 266 F.3d 1187,
1194-95 (9th Cir. 2001); removal proceedings, United States
v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006);
or a defendant’s probation status, Butler, 528 F.3d at 645.
The same principles dictate that a sentencing court may not
“read[ ] between the lines” to establish a predicate conviction.
United States v. Sandoval-Venegas, 292 F.3d 1101, 1109 (9th
Cir. 2002). Supreme Court precedent “demand[s] certainty”
as to the factual basis for the earlier conviction, Shepard, 544
U.S. at 21, as it must if the Almendarez-Torres prior convic-
tions exception to the Apprendi requirements is to survive.
The Document here does not provide the requisite unequivo-
cal proof.
I note that the inadequacy of the Document supplied by the
prosecution was the result of lack of diligence, not unavaila-
bility of unequivocal proof. The 2002 conviction was, accord-
ing to the Document, based on an “agreed statement of facts.”
That statement, assuming it showed that Strickland had com-
mitted child sexual abuse, would presumably have sufficed
under Shepard.
5796 UNITED STATES v. STRICKLAND
III.
The sentencing court in this case relied not only on the
Document but also on two sexual offender registration forms.
See United States v. Strickland, 556 F.3d 1069, 1071 (9th Cir.
2009). These non-judicial forms clearly fall outside the scope
of the judicial documents approved in Shepard and Snellen-
berger.
Shepard limits the use of documentary evidence to “conclu-
sive records made or used in adjudicating guilt,” Shepard, 544
U.S. at 21. Shepard went on to explain that the requirement
that “evidence of generic conviction be confined to the
records of the convicting court approaching the certainty of
the record of conviction in a generic crime State . . . was the
heart of the decision” in Taylor v. United States, 495 U.S. 575
(1990), the progenitor of the modified categorical approach to
prior convictions. Shepard, 544 U.S at 23.
A sex offender registration form is not a “record[ ] of the
convicting court.” It is filled out by a lay person, not by an
official familiar with court proceedings; often, as here, it post-
dates the conviction by a number of years; and it may be filled
out in connection with a non-judicial matter in a distant juris-
diction. A sentencing court simply may not rely on non-
judicial documents signed by a defendant for a non-judicial
purpose years later.
Even if Strickland’s signatures on the registration forms
were viewed as admissions that he was convicted of a sexual
offense, admissions that are not part of the record of convic-
tion or the sentencing record cannot establish the crime of
conviction. Cisneros-Perez, 465 F.3d at 393. Post-conviction
admissions in sex offender registration forms, made outside
the judicial process and likely made without the assistance of
counsel, do not dictate the legal definition of the offense.
Moreover, the registration forms in the record in this case
are not fairly read as admissions by Strickland himself. One
UNITED STATES v. STRICKLAND 5797
form is headed “Montana Department of Justice Sexual and
Violent Offender Registration Form,” followed by the admo-
nition “Form must be completed by the agency.” It is that
form, apparently filled out by a state agency and not by Str-
ickland, that checks “sexual” with regard to “offense type.” It
then goes on to record the Maryland offense as “2nd Degree
Assault,” not as a generic sexual offense. Although the form
also identifies the “victim” as a 16-year-old step-son, that
information goes to the underlying facts of the case, rather
than the nature of the conviction, and so is not informative on
the relevant question: what was Strickland convicted of. On
an attached page, Strickland initialed various advisements and
then signed. But the initialed advisements pertain to both sex-
ual and violent offenses. So Strickland himself did not admit
whether his offense was one or the other.
Strickland also signed a form from the City of Great Falls
entitled “Change of Address for Sex Offender — None.” That
strangely titled form, on the page signed by Strickland, does
not identify the particular offense triggering the signature.
There is, as Chief Judge Kozinski notes, an attached data
printout from the Montana Department of Justice. That print-
out says that the conviction was under a “non-Montana stat-
ute” specified as “Maryland Sexual Child Abuse.” No
statutory number or source of information is stated — and, of
course, there was no “Maryland Sexual Child Abuse” statute
at the relevant time, only a more general child abuse statute.
So the printout is both inaccurate and not attested to by Str-
ickland. We are left with the odd title of the Change of
Address form, with nothing at all in Strickland’s own words,
as indicating what Strickland in fact signed.
Finally, the third form Strickland signed was a “Sex and
Kidnapping Offender Registration Notification” from King
County, Washington. The form contains three-and-a-half
dense pages of instruction and covers offenses, including kid-
napping, that are not sexual offenses. All Strickland signed
was the statement that he “ha[s] read or had read to me and
5798 UNITED STATES v. STRICKLAND
received a copy of the Registration Notification, thereby
informing me of the registration requirements.” Nothing in
that form indicates that Strickland was admitting to child sex-
ual abuse.
The upshot is that even if these long-after-the fact forms
could be relevant to the question of what Strickland was con-
victed of — which, under Shepard they cannot — they are
ambiguous and partially inaccurate, do not include direct
admissions by Strickland, and require judicial inference and
reading between the lines before they can be interpreted as
Chief Judge Kozinski would interpret them. Again,
“[i]nferences, however, are insufficient under the modified
categorical approach.” Cisneros-Perez v. Gonzalez, 465 F.3d
386, 393 (9th Cir. 2006).
That the judge felt compelled to consider the registration
forms to buttress the information in the docket sheet indicates
that he doubted the reliability of the docket sheet. Yet, those
forms cannot serve as a basis in whole or in part for the sen-
tencing enhancement, as they lack the requisites acceptable to
meet the exceedingly narrow exception to Apprendi for
unequivocally established prior convictions.
CONCLUSION
If Strickland was actually convicted of child sexual abuse,
the government could have introduced the charging docu-
ments, agreed statement of facts, or other conviction records
approved under Shepard to show that fact. The government
instead offered several unreliable documents that do not,
alone or in tandem, unequivocally establish the fact that Str-
ickland was convicted of a sexual offense. The majority opin-
ion, by permitting trial courts to “go[ ] beyond conclusive
records made or used in adjudicating guilt,” Shepard, 544
U.S. at 21, erodes the constitutional protections at the heart of
our system of criminal adjudication.
UNITED STATES v. STRICKLAND 5805
REINHARDT, Circuit Judge, dissenting:
I concur in Judge Berzon’s dissent. I write separately to
register my strong objection to the majority’s failure to rule
upon the issue of the Montana sex offender registration forms.
The three-judge panel erroneously relied on those forms in
determining that Strickland’s prior child abuse conviction
constituted a sexual offense. We took this case en banc to
decide whether the forms at issue and similar extra-judicial
forms fit within the narrow category of documents that may
be considered in determining whether a past conviction falls
within a particular category of offense. As Judge Berzon per-
suasively explains, they do not. In my view, to fail entirely to
address the issue that caused the court to go en banc consti-
tutes an abuse of the en banc process. It allows future district
courts and future panels of our court to repeat the Strickland
panel’s error, resulting in erroneous decisions which could
easily be avoided by resolving the issue in this proceeding.
The issue is not a difficult one. Although the majority
explicitly declines to reach it, the four dissenting judges agree
that the forms may not be considered and there is no indica-
tion that any judge on the en banc court, other than our icono-
clastic Chief Judge, approves of their use. The majority’s duty
was to resolve the question that caused the court to go en
banc. It should have done so by holding that sex offender reg-
istration forms and similar extra-judicial forms may not be
considered for purposes of the modified categorical approach.
Instead, by avoiding the issue, it perpetuates exactly the kind
of unnecessary confusion on an important issue that the en
banc process is designed to avoid. The purpose of an en banc
proceeding is not simply to determine whether a result in a
particular case is correct, nor is an en banc court convened
simply to second guess a three-judge panel. The reason for
invoking the en banc process is to maintain the consistency of
the law of the circuit and to resolve issues of exceptional
importance. Fed. R. App. P. 35. Here, the en banc court fails
in its essential obligation.