Aguilar-Turcios v. Holder , 691 F.3d 1025 ( 2012 )

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.