Deferential with deference’s; Part 3: The element centric, formal categorical approach precludes Immigration Court from delving into the particular facts disclosed by the record of conviction other than to determine “which statutory phrase was the basis of the conviction.

The one glove fits all is dulling justice in the fly, Thus Immigration Courts is no longer to adhere to a contrary interpretation of criminal law merely because it developed the contrary reading, as by doing so, the Court is no longer applying the actual criminal law statutory direction.                        

When an individual entered a plea  pursuant to People v. West, in a context of this plea, [a] criminal court is not limited to accepting a guilty plea only to the offense charged…. but can accept a guilty plea to any reasonably related offense without admitting to the factual allegations in the indictment).

In such a case, any tacit admission implicit in nolo contender or West Plea are too inconclusive and ambiguous’ to be given ‘currency beyond the particular case”. Cf: Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110, 115 n.4 (Conn. 1976). Meaning there is no indication that the plea to  specific code section was intended to be to the facts “as charged”. Rather, the conviction was to a violation of code sections lesser included offense, which, often overboard.

Even if the modified categorical approach applies the limited record of conviction often times does not establish inherent relationship between felony complain and conviction. Complain and Conviction provisions are distinct and constitute separate elements, each provision requires proof of a fact which the other does not.

 In such a case an Immigration Court can do what the categorical approach demands; compare the elements of the Crime of Conviction (including the alternative elements used in the case with the elements of the generic crime and it simply not the case that the modified categorical approach fills that void, or provides a blanket invitation for a Court to inquire into  the facts underlying a conviction every time the categorical approach does not provide an answer.

Arguably, there is no question that it is a Federal crime to  “possess a controlled substance’s with intent to sale – 21 U.S.C. § 841 (a)(1). In this case this not enough because generically defined Federal crime is “any felony punishable under the controlled substance Act, (18 U.S.C. § 924 (C)(2) not just any “offense under the CSA.”

Specific controlled substance is not an element necessary to convict a defendant in a Federal prosecution but is a sentencing factor relevant to punishment for a defendant’ that violates  § 841 (a)(1)[1].  For example the same standard is with CHS § 11359 generally.., California Penal Code Section 11359, hold in part; “any person who posses for sale any marijuana, expect as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the penal code.” Type and quantity of a controlled substance are factors relevant to sentencing not to obtain a conviction.

Thus under the categorical approach, this argument find support in Mellouli vs Lynch, 575 U.S…, (June 2015) the Supreme Court stated that ; because congress predicated deportation on convictions, not conduct, the approach looks to the statutory definition of the offense of conviction, not to the particulars of an aliens behavior” .Under this approach, our analysis is grounded in the statute of conviction “not the defendant’s underlying conduct.” United States v. Calderon-Pena, 383 F.3d 254, 257(5th Cir. 2004) (en banc) (per curiam). “Because we look to the statute of conviction rather than the facts of the crime, ‘we must presume that the conviction rested upon nothing more than the least of the acts criminalized.[2]

The reason is that the INA asks what offense the non-citizen was “convicted” of, 8 U.S.C. § 1227 (a)(2)(B)(i), not what acts he committed. “[conviction” is “the relevant statutory hook.” Moncrieffe, Supra.

 Thus as a matter of state law,defendant his not required to admit to possession of specific controlled substances and the trial Judge had no reason to so find under circumstances of the case whether the conviction was for possession with intent for sale marijuana as it would not have altered the conviction nor the sentencing consequences.

See: Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727 (2013), noted that, when “examin[ing] what the state conviction necessarily involved . . . we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized.” Id. at 1684 (second alteration in original)(internal quotation marks omitted). As here Sherpard 544 U.S. at 26 emphasizes that’ any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Id. at 23

The focus of a Courts examination of the transcript of the plea colloquy or other ‘comparable judicial record, must be not to determine “what the defendant and state Judge must have understood as the factual basis of the prior plea‘ {but only to assess whether the plea was to the version of the crime in the [state] statute corresponding to the generic offense} So restricting the examination of plea colloquies assures that a sentencing court not ‘substitute a facts-based inquiry for an elements-based one’ Descamps, 133 S.Ct. At 2293.

This focus is particularly critical in the plea bargain context. As Descamps specifically cautioned, factual admissions made during a plea hearing may be “downright wrong,” because the defendant “often has little incentive to contest facts that are not elements of the charged offense,” and “the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.” Id. at 2289.

When a defendant pleads guilty to a crime, “he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.” Id. at 2288.5 Thus, the mention of marijuana is superfluous language not necessary and required to obtain a conviction. Therefore we cannot use the modified categorical approach to look for the identity of the controlled substance allegedly involved in Respondent case.

Supreme Court in  issued Descamps[3] restricting use of the the modified categorical approach to statutes with explicitly divisible criminal elements. As here use of modified approach to determine the elements of the respondent crime is inappropriate. 8 U.S.C § 1227(a)(2)(B)(i) does not ask Courts to scour on Alien’s indictment and sniff out a controlling facts of an alien’s conviction, to determine whether the Alien is removable. Thus respondent actual conduct is irrelevant to the inquiry, as in light of Moncriffe v. Holder[4], the adjudicator must“presume that the conviction rested upon nothing more than the least of the acts criminalized” under the state statute., off limits to the adjudicator is any inquiry into the particular facts of the case as the state statute does not contain several different crimes, described separately to fall within the compass of modified categorical approach.

Modified categorical approach only operates when a statue lists multiple alternative elements thus effectively creating “several different ….crime.” See; Nijhawan v. Holder, 557 U.S. 29, 41, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)). If a statute does not list alternative elements, but merely encompasses different means of committing an offense, the statute is “indivisible” and the modified categorical approach “has no role to play.” Id. The mere use of “L.I.O” in a case does not automatically render  the statue divisible and it is also inappropriate to use documents within the record of conviction to try to discern the respondent underlying conduct. If  a law is not categorical match to the  Federal Crime and the Statute is not divisible, the crime will not be a controlled substance offense.


[1] Section 841 is divided into two subsections that are relevant here: (a), titled “Unlawful acts,” which includes the offense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates subsection (a)” shall be punished, depending on the circumstances of his crime (e.g., the type and quantity of controlled substance involved, whether it is a repeat offense). “Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated as” a simple drug possessor, 21 U. S. C. 844, which for our purposes means as a misdemeanant.  

[2] United States v. Amaya, 576 F. App’x 416, 419 (5th Cir. 2014) (per curiam) (quoting Moncrieffe v. Holder, U.S. , 133 S.Ct. 1678, 1684, 185 L. Ed. 2d 727(2013))

[3] Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d. 438, 454 (2013 )

 

[4] Moncrieffe v. Holder, 569 U. S. ___, ___, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 744 (2013) (internal quotation marks and alterations omitted). Cf;Johnson v. United States, 559 U.S. 133, 137, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010

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