Luis Juarez Alvarado v. Eric Holder, Jr. , 759 F.3d 1121 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS FELIPE JUAREZ ALVARADO, No. 10-71236
Petitioner,
Agency No.
v. A017-929-244
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 4, 2014—Seattle, Washington
Filed July 23, 2014
Before: Raymond C. Fisher, Ronald M. Gould
and Morgan B. Christen, Circuit Judges.
Opinion by Judge Fisher
2 JUAREZ ALVARADO V. HOLDER
SUMMARY*
Immigration
The panel dismissed in part and denied in part Luis Felipe
Juarez Alvarado’s petition for review of the Board of
Immigration Appeals’ decision finding him removable
because his conviction for attempted possession of a
dangerous drug, in violation of Arizona Revised Statute
§ 13-3407(A)(1), constituted a violation of state law relating
to a controlled substance.
The panel dismissed in part for lack of jurisdiction,
holding that Alvarado waived before the BIA his argument
that Arizona’s attempt statute is categorically broader than
the federal generic definition. The panel found that, even
construed liberally, his pro se brief to the BIA did not raise a
general argument about attempt, and that neither the IJ nor
the BIA addressed the attempt element of his conviction. The
panel also held that Alvarado was not excused from the
exhaustion requirement pursuant to 8 U.S.C. § 1252(d)(1),
because his argument was not so entirely foreclosed that no
remedies were available as of right before the agency.
The panel also denied in part, holding under the modified
categorical approach that the government met its burden to
prove removability based on attempted possession of
methamphetamine, a controlled substance offense. The panel
held that although it could not consider the indictment
because the count as originally charged was dismissed and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JUAREZ ALVARADO V. HOLDER 3
Juarez Alvarado pled to a lesser charge in a modified count,
it could consider a page in the indictment that described the
substance as methamphetamine because the statement was
specifically incorporated into Alvarado’s plea agreement as
the factual basis supporting his guilty plea.
COUNSEL
Miguel A. Estrada and Scott P. Martin (argued), Gibson,
Dunn & Crutcher LLP, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Linda
S. Wernery, Assistant Director, Officer of Immigration
Litigation, Kerry A. Monaco, Trial Attorney, and Jamie M.
Dowd (argued), Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.
OPINION
FISHER, Circuit Judge:
We consider whether the Department of Homeland
Security has met its burden of proving that the petitioner,
Luis Felipe Juarez Alvarado, is removable from the United
States as an alien convicted of a violation of state law relating
to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i).
Juarez Alvarado pled guilty to attempted possession of a
dangerous drug, in violation of Arizona Revised Statute § 13-
3407(A)(1). He argues that this conviction does not establish
his removability for two independent reasons: first, because
Arizona’s attempt statute is categorically broader than the
4 JUAREZ ALVARADO V. HOLDER
federal definition; and second, because the government has
not met its burden of establishing under the modified
categorical approach that his conviction involved a substance
listed in the Controlled Substances Act. We lack jurisdiction
to reach the first argument and are not persuaded by the
second. Accordingly, we dismiss in part and deny in part his
petition for review.1
BACKGROUND
Born in Mexico in 1968, Juarez Alvarado was admitted
into the United States as a legal permanent resident before his
first birthday. He was placed into removal proceedings after
his 2006 conviction for possession of drug paraphernalia, but
an IJ granted his application for cancellation of removal in
December 2007.
In April 2009, an Arizona grand jury indicted Juarez
Alvarado on three counts of drug-related offenses. Count
One, the only count pertinent to this petition, alleged that on
April 19, 2009, he had “knowingly possess[ed] a dangerous
drug, to-wit: methamphetamine, a class four felony,” in
violation of Arizona Revised Statute § 13-3407(A)(1).
Three months later, Juarez Alvarado entered a written
plea agreement, in which he agreed to plead guilty to
“Modified Count One: Attempted possession of a dangerous
drugs [sic], a class five felony, . . . committed on the 19th day
of April, 2009.” In exchange, the agreement provided that
“Count One, as originally charged” and “Counts Two and
Three” would be dismissed. The factual basis section recited:
1
We also dismiss the portion of the petition relating to Juarez
Alvarado’s pro se argument. See infra note 4.
JUAREZ ALVARADO V. HOLDER 5
“Please see the attached description of the statutory elements
and factual basis for the offense(s) to which the defendant is
pleading guilty. The attachment has been prepared by the
defense and signed by the defendant.” The plea agreement is
marked as pages 5–7.
The record also includes an untitled, undated document,
marked as page 8, that was signed by Juarez Alvarado, his
attorney and the prosecutor.2 The document recites the text
of the relevant statutes and further states:
On April 19, 2009, I, Luis Felipe Juarez-
Alvarado, was stopped for a traffic violation.
I had a suspended driver’s license at the time
and was placed under arrest. My vehicle was
searched, and approximately 4.5 grams of
methamphetamine was found. When asked, I
stated that I paid about $50 for the bag of
methamphetamine.
At the bottom of the page is a stamp, signed by the deputy
clerk on August 17, 2009, certifying the document to be “a
true copy of the original on file” in Juarez Alvarado’s
criminal case. Juarez Alvarado contends this document “was
not part of the plea agreement” and “seems to have been
added later, without [his] knowledge or consent.”
Juarez Alvarado appeared in court to enter his guilty plea
on August 13, 2009. The record does not include a transcript
of this proceeding. The court entered a judgment of
conviction, finding Juarez Alvarado “guilty of the crime of
Modified Count One, Attempted Possession of Dangerous
2
This document is attached as an appendix to this opinion.
6 JUAREZ ALVARADO V. HOLDER
Drugs, a Class Five Felony,” and sentencing him to 48
months of intensive probation.
Two weeks later, the Department of Homeland Security
issued Juarez Alvarado a Notice to Appear, charging him
with removability under 8 U.S.C. § 1227(a)(2)(B)(i), based
on his conviction for a controlled substance offense. Juarez
Alvarado, who proceeded pro se throughout administrative
proceedings, denied removability and filed a motion to
terminate the removal proceedings, contending that his
conviction was not “categorically a conviction relating to a
substance covered by the CSA,” and “DHS has not met its
burden of proving the substance for which he was convicted
is covered by the CSA.” The IJ denied his motion,
acknowledging that the controlled substance was not
specified in the judgment, but concluding that the drug was
identified as methamphetamine in “part of th[e] plea
agreement.” After determining that Juarez Alvarado was not
eligible for cancellation of removal or any other forms of
relief, the IJ ordered him removed to Mexico. On appeal, the
BIA affirmed the IJ’s decision without written opinion.
STANDARD OF REVIEW
Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to
review questions of law when a final order of removal is
predicated on a criminal conviction. See Mielewczyk v.
Holder, 575 F.3d 992, 994 (9th Cir. 2009). Whether a
particular conviction constitutes a removable offense is a
question of law that we review de novo. See id. Where, as
here, “the BIA summarily affirms the IJ’s decision, we
review the IJ’s decision as the final agency action.” Pagayon
v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011) (quoting
JUAREZ ALVARADO V. HOLDER 7
Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006))
(internal quotation marks omitted).
DISCUSSION
We analyze whether a conviction qualifies as a predicate
offense for removal purposes by employing the framework
the Supreme Court constructed in Taylor v. United States,
495 U.S. 575 (1990). See Mielewczyk, 575 F.3d at 994. We
begin by applying the “categorical approach, examining only
the statutory definition of the crime to determine whether the
state statute of conviction renders an alien removable under
the statute of removal.” Id. We next apply a “modified
categorical approach” if the state statute of conviction is
broader than the generic federal offense and is also
“divisible,” meaning that it “comprises multiple, alternative
versions of the crime,” at least one of which “correspond[s]
to the generic offense.” Descamps v. United States, 133 S.
Ct. 2276, 2284–85 (2013).3 Under the modified categorical
approach, we “consider a limited class of judicially noticeable
documents to determine whether the applicable alternative . . .
was the basis of the conviction.” United States v. Gonzalez-
Monterroso, 745 F.3d 1237, 1241 (9th Cir. 2014).
3
Throughout this opinion, we rely on cases arising out of the criminal
sentencing context, rather than the immigration context. “[W]here a
statute ‘has both criminal and noncriminal applications,’ the statute should
be consistently interpreted in both criminal and noncriminal, i.e.,
immigration, applications.” Martinez-Perez v. Gonzales, 417 F.3d 1022,
1028 n.3 (9th Cir. 2005) (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n.8
(2004)), abrogated on other grounds by United States v. Snellenberger,
548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam), abrogated on other
grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).
8 JUAREZ ALVARADO V. HOLDER
Juarez Alvarado raises two challenges to the IJ’s
determination that his conviction for attempted possession of
a dangerous drug is a removable controlled substance
offense.4 First, he contends that the Arizona definition of
attempt is categorically broader than the federal definition.
He acknowledges that we have previously held “that the
Arizona and federal definitions of attempt are coextensive,”
United States v. Taylor, 529 F.3d 1232, 1234 (9th Cir. 2008),
but argues that an intervening unpublished Arizona state court
of appeals opinion, State v. Garcia, No. 2 CA-CR 2008-0020,
2009 WL 104639 (Ariz. Ct. App. Jan. 15, 2009), warrants
revisiting that decision. Second, he argues that, under the
modified categorical approach, the government failed to
prove that his Arizona conviction was for a substance listed
in the Controlled Substances Act. See S-Yong v. Holder,
600 F.3d 1028, 1034 (9th Cir. 2010); see also 21 U.S.C.
§ 802(6); 21 C.F.R. §§ 1308.11–15. We address each
argument in turn.
4
Juarez Alvarado also filed a pro se brief making a third argument: that
his plea was never reviewed or accepted by the trial judge and therefore
the government failed to prove he has been “convicted” of any offense
under the Immigration and Nationality Act. Juarez Alvarado arguably
raised this issue in his notice of appeal to the BIA, which contended that
“the DHS has failed to meet its evidentiary burden to prove the facts of
allege Conviction.” He did not, however, raise this issue in his brief
before the BIA. We therefore lack jurisdiction to review this unexhausted
issue, and we dismiss this portion of the petition. See Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding that
when a petitioner does not file a brief, “the notice of appeal serves in lieu
of a brief, and he will be deemed to have exhausted all issues raised
therein,” but that “when a petitioner does file a brief,” he will “be deemed
to have exhausted only those issues he raised and argued in his brief
before the BIA” (emphasis added)).
JUAREZ ALVARADO V. HOLDER 9
A.
Before we can reach the merits of Juarez Alavardo’s
attempt argument, we must determine whether it was properly
exhausted. Generally, 8 U.S.C. § 1252(d)(1) “mandates
exhaustion and therefore . . . bars us, for lack of subject-
matter jurisdiction, from reaching the merits of a legal claim
not presented in administrative proceedings below.” Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).5 We conclude
5
We note that some circuits have held that issue exhaustion, as opposed
to exhaustion of administrative remedies, is not a statutory jurisdictional
requirement, but a judicially created case processing rule, allowing courts
the “discretion” to “choose to review [petitioners’] arguments not
previously made to the BIA.” Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 118–22 (2d Cir. 2006) (holding “that 8 U.S.C. § 1252(d)(1)
does not make issue exhaustion a statutory jurisdictional requirement”);
see also, e.g., Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010) (holding
that the requirement that a petitioner “first to present to the Board any
arguments that lie within its power to address” is not “a jurisdictional rule
in the strict sense,” but is “a case-processing rule that limits the arguments
available to an alien in this court when those arguments have not been
raised properly at the agency level”); Mambwe v. Holder, 572 F.3d 540,
550 (8th Cir. 2009) (noting that “[t]here is a split of authority in this
circuit” about whether issue exhaustion is a statutory jurisdictional
requirement).
Our precedent, however, has squarely held that issue exhaustion is a
jurisdictional requirement. See Sola v. Holder, 720 F.3d 1134, 1135 (9th
Cir. 2013) (per curiam) (“A petitioner’s failure to raise an issue before the
BIA generally constitutes a failure to exhaust, thus depriving this court of
jurisdiction to consider the issue.”); see also, e.g., Kinisu v. Holder,
721 F.3d 29, 34 (1st Cir. 2013) (“The law of this circuit is clear that, if a
petitioner fails to press an argument before the BIA, the petitioner has not
exhausted [his] administrative remedies as to that issue, which, in turn,
forecloses this court from exercising jurisdiction over [the issue].”
(alterations in original) (quoting Chhay v. Mukasey, 540 F.3d 1, 5–6 (1st
Cir. 2008)) (internal quotation marks omitted)); Ni v. Holder, 613 F.3d
10 JUAREZ ALVARADO V. HOLDER
that because Juarez Alvarado did not sufficiently exhaust his
argument that the Arizona definition of attempt is
categorically broader than the federal generic definition, we
lack jurisdiction to reach this issue.
Juarez Alvarado contends that he sufficiently exhausted
his attempt argument by arguing that his state law conviction
was not categorically a removable controlled substance
offense under 8 U.S.C. § 1227(a)(2)(B)(i). Although “[a]
petitioner need not . . . raise [his] precise argument” in
administrative proceedings, Vizcarra-Ayala v. Mukasey,
514 F.3d 870, 873 (9th Cir. 2008), he “cannot satisfy the
exhaustion requirement by making a general challenge to the
IJ’s decision, but, rather, must specify which issues form the
basis of the appeal,” Zara v. Ashcroft, 383 F.3d 927, 930 (9th
Cir. 2004). Juarez Alvarado’s only argument in his brief
before the BIA concerned the sufficiency of the government’s
proof that the controlled substance involved in his conviction
was methamphetamine. See Abebe v. Mukasey, 554 F.3d
1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding
that when a petitioner files a brief before the BIA, he is
deemed to have exhausted only the issues raised and argued
in that brief). Even liberally construing Juarez Alvarado’s
pro se claims, see Vizcarra-Ayala, 514 F.3d at 873, his brief
did not raise a “general argument” about attempt. See
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th
Cir. 2007). Moreover, neither the IJ nor the BIA addressed
415, 431 (4th Cir. 2010) (holding that because the petitioner “failed to
exhaust his administrative remedies with regard to this issue,” the court
“lack[ed] jurisdiction to entertain it”); Lin v. Att’y Gen. of the U.S., 543
F.3d 114, 120 n.6 (3d Cir. 2008) (noting that although “there is reason to
cast doubt upon the continuing validity of our precedent holding that issue
exhaustion is a jurisdictional rule, short of a review en banc, we must
dutifully apply that precedent”).
JUAREZ ALVARADO V. HOLDER 11
the attempt element of his conviction. See Vizcarra-Ayala,
514 F.3d at 874 (holding that “claims addressed on the merits
by the BIA are exhausted”). Accordingly, Juarez Alvarado
failed to exhaust this issue because his argument regarding
the controlled substance underlying his conviction was not
“sufficient to put the BIA on notice that he was challenging”
the categorical match between the Arizona attempt statute and
the federal generic attempt definition, and the agency did not
have “an opportunity to pass on this issue.” Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).
Juarez Alvarado argues in the alternative that, even if he
failed to exhaust his attempt argument, we may nevertheless
reach its merits because the argument was “so entirely
foreclosed . . . that no remedies [were] ‘available . . . as of
right’ with regard to [it] before IJs and the BIA.” Sun v.
Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004) (quoting 8 U.S.C.
§ 1252(d)(1)).6 Under 8 U.S.C. § 1252(d)(1), a petitioner
need only exhaust all administrative remedies available “as
of right.” Sun, 370 F.3d at 941. A remedy is available as of
right only when the agency can “give unencumbered
consideration to whether relief should be granted.” Id. at 942.
Accordingly, if an issue is entirely foreclosed, such that the
agency cannot give it unencumbered consideration, it is not
available as of right and the statute does not require it to be
exhausted, although “prudential exhaustion requirements still
apply.” Id.
6
Although Sun involved a habeas petition, and this cases involves direct
review, Sun held that the exhaustion requirement in 8 U.S.C. § 1252(d)(1),
which by its terms applies to judicial review over “final order[s] of
removal,” also applies to habeas petitions. See 370 F.3d at 941. Sun’s
interpretation of the scope of § 1252(d)(1) therefore applies with equal
force to this context.
12 JUAREZ ALVARADO V. HOLDER
Juarez Alvarado specifically argues that because the BIA
was bound by our conclusion in Taylor that “Arizona’s
definition of attempt is coextensive with the federal
definition,” 529 F.3d at 1238, it could not have given
unencumbered consideration to his attempt argument. See In
re Sanudo, 23 I. & N. Dec. 968, 973–74 (B.I.A. 2006)
(holding that the Ninth Circuit’s determination that battery
under California Penal Code § 242 does not categorically
qualify as a crime of violence “is binding on this Board and
the Immigration Judges in cases arising within the
jurisdiction of the Ninth Circuit”); see also Jama v.
Immigration & Customs Enforcement, 543 U.S. 335, 350 n.10
(2005) (“With rare exceptions, the BIA follows the law of the
circuit in which an individual case arises . . . .” (citations
omitted)).
Although the statute may not require exhaustion if the
BIA – bound by our prior precedent – would be precluded
from granting relief, those are not the circumstances here.
Juarez Alvarado’s argument on the merits is that we are no
longer bound by Taylor because Garcia, 2009 WL 104639,
constitutes a “subsequent indication from the [Arizona] courts
that [Taylor]’s interpretation” of state law is “incorrect.”
Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464–65
(9th Cir. 1983); see also FDIC v. McSweeney, 976 F.2d 532,
535 (9th Cir. 1992) (“As a three-judge panel, we are bound
by our prior decisions interpreting state as well as federal law
in the absence of intervening controlling authority.”). This
merits argument falls outside the exhaustion requirement only
if the BIA was foreclosed from determining whether it
remained bound by Taylor in light of Garcia. Accordingly,
Juarez Alvarado’s futility argument rests on the assumption
that the BIA would be required to apply circuit precedent
JUAREZ ALVARADO V. HOLDER 13
even when confronted with a meritorious argument that such
precedent no longer constitutes binding law.7
Our review of BIA practice does not support this
assumption. Instead, we conclude that nothing prevents the
BIA from giving “unencumbered consideration” to whether
it remains bound by our decision in Taylor in light of Garcia.
In other circumstances, the BIA has considered whether
circuit precedent remains binding in light of intervening
events. See, e.g., In re Carachuri-Rosendo, 24 I. & N. Dec.
382, 385–86 & n.3 (B.I.A. 2007) (en banc) (holding that
because the precedent in many circuits “may well be
consistent with” intervening Supreme Court authority, “they
may need to be followed in removal proceedings, unless
altered by the circuits in some respect”); In re Luna-Aranda,
2006 WL 2183478 (B.I.A. June 14, 2006) (holding that
circuit precedent remained binding because it had not been
“reversed or meaningfully distinguished” by this court and
because the subsequent case cited by the respondent did not
apply to the respondent’s case); In re Hernandez-Barrondo,
2005 WL 1104188 (B.I.A. Mar. 25, 2005) (recognizing that
although the BIA ordinarily would be required to follow a
Fifth Circuit case “interpret[ing] the same statute at issue in
this case and conclud[ing] that it does not categorically define
a crime of violence,” the situation presented was “more
complex” because that case had “been materially augmented”
by a “subsequent en banc decision” applying a different
methodology to the analysis of divisible state statutes);
Matter of Mangabat, 14 I. & N. Dec. 75, 77–78 (B.I.A. 1972)
(declining to apply circuit precedent on an issue when the
7
We express no opinion on whether Juarez Alvarado’s merits argument
is actually meritorious, because that is the very issue we lack jurisdiction
to reach.
14 JUAREZ ALVARADO V. HOLDER
Supreme Court granted certiorari on the question, but
terminated the case without rendering a decision on the
merits); cf. Garfias-Rodriguez v. Holder, 702 F.3d 504, 508,
511 (9th Cir. 2012) (en banc) (describing how the BIA
decided it was not bound by circuit precedent when the case
on which that precedent rested had been abrogated).
Similarly, district courts in analogous circumstances apply
the same standard as three-judge panels of this court to decide
whether circuit precedent remains binding after an
intervening decision of a court of last resort. See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (per curiam) (en
banc) (holding that when intervening authority from a court
of last resort “is clearly irreconcilable with our prior circuit
authority,” both “a three-judge panel of this court and district
courts should consider themselves bound by the intervening
higher authority and reject the prior opinion of this court as
having been effectively overruled”).
There is accordingly no reason to believe the BIA would
rigidly apply circuit precedent when confronted with a
meritorious argument that such precedent is no longer
binding. It follows that if Juarez Alvarado had raised his
attempt argument during removal proceedings and persuaded
the BIA, the BIA would not have been precluded from
granting him relief. Accordingly, because the BIA could
have given unencumbered consideration to Juarez Alvarado’s
argument that Taylor no longer constitutes binding law in
light of Garcia, we conclude that Juarez Alvarado had an
“administrative remed[y] available . . . as of right,” and
therefore this argument “falls within the scope of
§ 1252(d)(1)’s exhaustion requirement.” Sun, 370 F.3d at
944.
JUAREZ ALVARADO V. HOLDER 15
We acknowledge that prudential considerations may well
militate in favor of reaching the merits of Juarez Alvarado’s
attempt argument. Cf., e.g., Fregozo v. Holder, 576 F.3d
1030, 1036 (9th Cir. 2009) (noting that this “inquiry involves
parsing the elements of a state criminal statute to determine
whether it criminalizes conduct that falls outside of the
generic federal offense, a task for which . . . the BIA lacks
any particular statutory expertise that would be brought to
bear on remand”). Because issue exhaustion is a
jurisdictional requirement, however, see supra note 5, such
considerations may not influence our analysis. Having
concluded that Juarez Alvarado did not exhaust this argument
before the BIA, and that the BIA was not precluded from
giving the argument unencumbered consideration, we are
jurisdictionally barred from reaching the merits.
B.
We therefore turn to Juarez Alvarado’s second contention,
that the government failed to meet its burden of proving
removability because it did not establish that his Arizona
conviction constituted a “controlled substance offense” under
8 U.S.C. § 1227(a)(2)(B)(i). To establish removability under
§ 1227(a)(2)(B)(i), the government must “prove that the
substance underlying an alien’s state law conviction for
possession is one that is covered by Section 102 of the CSA.”
S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2009). The
government does not dispute that Arizona’s definition of
“dangerous drug” is categorically broader than the federal
definition of “controlled substance.” Compare Ariz. Rev.
Stat. § 13-3401(6) (defining “dangerous drug”), with
21 U.S.C. §§ 802(6), 812 (defining “controlled substance”).
We therefore apply the modified categorical approach to
determine whether Juarez was convicted of attempting to
16 JUAREZ ALVARADO V. HOLDER
possess a substance listed in the CSA. See S-Yong, 600 F.3d
at 1034–35.
In the context of a guilty plea, the modified categorical
approach inquires “whether a guilty plea to an offense
defined by a nongeneric statute necessarily admitted elements
of the generic offense.” Young v. Holder, 697 F.3d 976, 983
(9th Cir. 2012) (en banc) (quoting United States v. Aguila-
Montes de Oca, 655 F.3d 915, 921 (9th Cir. 2011) (en banc)
(per curiam)) (internal quotation marks omitted). This
inquiry considers only “the charging instrument, transcript of
the plea colloquy, plea agreement, and comparable judicial
record of this information.” Id. (citing Shepard v. United
States, 544 U.S. 13, 26 (2005)). A statement of the factual
basis supporting the guilty plea “may be considered if
specifically incorporated into the guilty plea or admitted by
a defendant.” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th
Cir. 2005).
The government contends that it met its burden of
showing that Juarez Alvarado’s conviction related to a
substance listed in the CSA by producing two documents
describing the substance as methamphetamine: (1) the
indictment and (2) a written statement, which the government
argues is incorporated in the plea agreement as the “attached
description of the statutory elements and factual basis.” See
21 U.S.C. § 812 scheds. II(c), III(a)(3) (listing
methamphetamine as a controlled substance). Juarez
Alvarado counters that the government cannot rely on the
indictment because the plea agreement dismissed the
pertinent count as originally charged, and maintains that the
written statement was not part of the plea agreement but was
“added later, without [his] knowledge or consent.” Although
we agree with Juarez Alvarado that the government may not
JUAREZ ALVARADO V. HOLDER 17
rely on the reference to methamphetamine in the indictment,
we nevertheless deny his petition because we are convinced
that the disputed page was incorporated into the plea
agreement, making it sufficient to establish that the
conviction was for an offense relating to methamphetamine.
1. Indictment
Count One of the indictment charged Juarez Alvarado
with “knowingly possess[ing] a dangerous drug, to-wit:
Methamphetamine.” In the plea agreement, however, Juarez
Alvarado agreed to plead guilty to “Modified Count One:
Attempted possession of a dangerous drugs [sic], a class five
felony,” and the prosecution agreed to dismiss “Count One,
as originally charged,” as well as the other two counts
charged in the indictment. Similarly, the judgment of
conviction found Juarez Alvarado “guilty of the crime of
Modified Count One, Attempted Possession of Dangerous
Drugs, a Class Five Felony,” and granted the prosecution’s
“Motion to Dismiss Count One of the Indictment as originally
charged and Counts Two and Three of the Indictment.” The
government argues that describing the offense of conviction
as “Modified Count One” refers back to the indictment,
allowing us to incorporate the indictment’s reference to
methamphetamine into the plea agreement.
We disagree. The charging instrument may be considered
“in conjunction with a signed plea agreement,” S-Yong,
600 F.3d at 1035, but may not be considered when the
original charges are dismissed and the defendant pleads guilty
to a different offense. See Cisneros-Perez v. Gonzales, 465
F.3d 386, 393 (9th Cir. 2006) (holding that the petitioner had
not “necessarily pleaded no contest to the allegations in the
original complaint” when “the originally charged crimes were
18 JUAREZ ALVARADO V. HOLDER
dismissed and replaced by a lesser crime”); Martinez-Perez
v. Gonzales, 417 F.3d 1022, 1028–29 (9th Cir. 2005) (holding
that because the petitioner “pled guilty to an offense different
from the one charged in the information,” the criminal
information could not be relied upon for purposes of the
modified categorical approach), abrogated on other grounds
by United States v. Snellenberger, 548 F.3d 699 (9th Cir.
2008) (en banc) (per curiam), abrogated on other grounds by
Young, 697 F.3d 976.
Here, Count One, as originally charged, was dismissed,
and Juarez Alvarado pled guilty to “Modified Count One,”
attempted possession of an unspecified dangerous drug. That
one could easily infer that “Modified Count One” arose from
the same conduct as “Count One” is not sufficient. See
Cisneros-Perez, 465 F.3d at 393 (“Inferences . . . are
insufficient under the modified categorical approach.”).
We therefore reject the government’s argument that the
indictment establishes that Juarez Alvarado’s conviction
related to methamphetamine.
2. Written Statement
The government argues it also carried its burden of
proving removability because a written statement describing
the substance as methamphetamine was incorporated into the
plea agreement as the factual basis supporting Juarez
Alvarado’s guilty plea. We agree.
Generally, under the modified categorical approach, “any
enquiry beyond statute and charging document must be
narrowly restricted to implement the object of the statute and
avoid evidentiary disputes.” Shepard, 544 U.S. at 23 n.4.
JUAREZ ALVARADO V. HOLDER 19
However, a statement of the factual basis for a guilty plea
“may be considered if specifically incorporated into the
guilty plea or admitted by a defendant.” Parrilla, 414 F.3d at
1044 (emphasis added); see also Shepard, 544 U.S. at 20
(noting that the modified categorical approach allows
consideration of “the statement of factual basis for the
charge . . . shown by a transcript of plea colloquy or by
written plea agreement presented to the court”).
Here, the written plea agreement specifically incorporated
an “attached description” as the factual basis for Juarez
Alvardo’s guilty plea. It is undisputed that the modified
categorical approach allows such an “attached description” to
be considered. The question is whether the disputed page in
the record actually is that “attached description.”
We confronted a similar question in United States v.
Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008), which
guides our analysis. There, the defendant stipulated during
his state court guilty plea colloquy that “‘the police reports
and other documents within the Court file’ contained a factual
basis for the plea, without identifying specifically which
police reports contained the factual basis.” Id. at 1098. The
defendant argued that under the modified categorical
approach, this absence of specificity prevented the court from
looking to the police reports included in the state court file
pertaining to the defendant’s conviction. We rejected that
argument, concluding that the affidavit of a United States
Probation Officer describing his process for obtaining the
state court conviction file allowed us to be “confident that the
police reports obtained from the . . . state court are the only
police reports in that court’s file,” and therefore were the
same reports stipulated to by the defendant. Id. at 1099.
20 JUAREZ ALVARADO V. HOLDER
Here, the record does not contain a transcript from the
change of plea colloquy, but it does contain the plea
agreement’s explicit incorporation of an “attached
description” as the factual basis in the plea agreement, which
is sufficient under the modified categorical approach. See
Parrilla, 414 F.3d at 1044. Moreover, just as the Almazan-
Becerra court was “confident” that the police reports
considered by the district court were the same police reports
stipulated to by the defendant as the factual basis for his
guilty plea, we too are confident, based on circumstantial
evidence in the record, that the disputed page is the attached
description incorporated by reference.
First, the disputed page exactly matches the plea
agreement’s description of the incorporated document. It
describes “the statutory elements and factual basis for the
offense(s) to which the defendant is pleading guilty,” and is
“signed by the defendant.” Second, the state deputy clerk’s
certification stamp appears on the last page of each of the
documents provided to the Department of Homeland Security
from the state court clerk, and it appears on the disputed page.
The stamp therefore supports the inference that the page was
entered into the record as the last page of the plea agreement
and indicates the page was a “description” that was
“attached” to the plea agreement.8 Third, the parties agreed
8
We reject Juarez Alvarado’s contention that the modified categorical
approach does not allow us to draw inferences about a document in the
record of conviction. It is true, as noted above, that we need more than
inferences to conclude that a petitioner was necessarily convicted of a
controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). See
Cisneros-Perez, 465 F.3d at 393; supra section B.1, at page 18. In this
case, however, we are not inferring that Juarez Alvarado’s conviction
related to methamphetamine; rather, we are inferring from circumstantial
evidence that the disputed page, which unequivocally describes the
JUAREZ ALVARADO V. HOLDER 21
at oral argument that the page numbers at the bottom of the
disputed page and the plea agreement were from the state
court record. Because the plea agreement was numbered
pages 5–7 and the disputed page was numbered page 8, the
numbering provides further evidence that the disputed page
was attached to the plea agreement. Finally, as in Almazan-
Becerra, the disputed page “unequivocally describe[d]” the
offense conduct as involving methamphetamine, “and there
is no indication that any other documents in the court file
contradict that description.” 537 F.3d at 1099.
We acknowledge that, as Juarez Alvarado points out, the
disputed page is untitled and undated – indeed, the only date
on the page is in the certification stamp, and that certification
date is four days later than the judgment of conviction and
over a month later than the signatures on the plea agreement.
Had the page included a title specifically incorporated into
the plea agreement, or had the disputed page been dated on
the same date as the plea agreement, we could be even more
confident that the plea agreement incorporated the disputed
page. Based on the circumstantial evidence in the record and
the absence of any contradictory evidence, however, we are
confident that the disputed page is the “attached description”
incorporated by reference into the plea agreement and
stipulated as providing the factual basis for Juarez Alvarado’s
guilty plea.
We therefore hold that the government met its burden of
establishing that Juarez Alvarado was convicted of a
removable controlled substance offense by producing a
factual basis for his guilty plea that described the substance
controlled substance as methamphetamine, is the “attached description”
referenced in the plea agreement.
22 JUAREZ ALVARADO V. HOLDER
as methamphetamine and that was incorporated into his
written plea agreement.
CONCLUSION
Because we lack jurisdiction to reach Juarez Alvarado’s
argument that the Arizona definition of attempt is
categorically broader than the federal generic definition, we
do not address that argument on its merits. We reject Juarez
Alvarado’s argument that the controlled substance at issue in
his Arizona conviction cannot be established by applying the
modified categorical approach. Although the indictment may
not be considered when Count One “as originally charged”
was dismissed and Juarez Alvarado pled guilty to “Modified
Count One,” a lesser charge, we are confident based on
circumstantial evidence that a page describing the substance
as methamphetamine was specifically incorporated into the
plea agreement as the factual basis for Juarez Alvarado’s
guilty plea. We therefore deny in part and dismiss in part
Juarez Alvarado’s petition.
PETITION DENIED IN PART AND DISMISSED IN
PART.
JUAREZ ALVARADO V. HOLDER 23
APPENDIX