Deferential Deference’s. Outline under Mellouli vs. Lynch

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In light of earlier  published on articles differential deference between complain and conviction, categorical approach and modified categorical approach, we can assent that a drugs listed by reference in sections such as CHS 11357, 11359 and 11360 are not elements because “a jury need not find the specific type of drug involved in a case.

Under this view, “possession of a controlled substance” is an element and each schedule of drugs merely enumerates different means of satisfying that elements, meaning that a drug type and quantity can be submitted to a jury and proven beyond a reasonable doubt, they are nonetheless not elements of the offense)

Under California Law, the Plea Agreement contains a standard general provision stating: This agreement serves to amend the complaint or information, to charge the offense to which the Defendant pleads, without the filing of any additional pleading[1]. The trial Court acceptance that of the plea and stipulation thus assured defendant that he could not be prosecuted for a violation of the statue. Thus, Defendant may plead guilty to certain controlled substances offenses without admitting to the specific type of drug involved. See: United States v. Thomas, 355 F.3d 1191 (9th Cir. 2004); United States v. Hunt, 656 F.3d 906, 916 (9th Cir. 2011) (“Even though due process requires that drug type be charged in the indictment and proved beyond a reasonable doubt, a defendant can plead guilty to a possession with intent to distribute offense without admitting the type of drug.”); Ross v. Municipal Court of Los Angeles, 49 Cal. App. 3d 575, 578-79, 122 Cal. Rptr. 807 (1975).  We have declined to treat ‘guilty pleas as admitting factual allegations in the indictment not essential to the government’s proof of the offense.'” United States v. Forrester, 616 F.3d 929, 945 (9th {655 F.3d 963} Cir. 2010) (quoting United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997)). “Any other rule,” Cazares explained, “would be inconsistent with the rationale underlying these decisions that ‘[t]he effect [of a guilty plea] is the same as if [the defendant] had been tried before a jury and had been found guilty on evidence covering all of the material facts.'” 121 F.3d at 1247(quoting United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971) (per curiam) (all but first alteration in original))[2] As here, Immigration  Court can not also rely on a sentences just to tie guilty plea agreement to align generic elements. Plea agreement relates to the charges to which defendant will plea, while sentencing is apart from plea bargain. This distinction is also reflected in Federal Rule of Criminal Procedure 11.  See: Cuero vs. Cate No. 12-55911 D.C. No. 3:08-cv-02008-BTM-WM. 

Subsequently In Matter of Paulus, 11 I&N Dec. 274 (BIA 1965), there the BIA analyzed a state drug possession offense and held that where the state drug law is “not confined to Federally controlled substances “conviction cannot render the immigrant deportable unless it can be established that conviction relates to a federally controlled substance. Mellouli, 2015 WL 2464047 at *6. Thus we cannot conclude under California plea bargain based on the language of the information on its face whenever defendant plea to “L.I.O 11359” or divisible statues such as 11349 &11360  if the conviction record doesn’t include “as charge in a complain” language, the information sheds no light as to the conduct to which defendant plead guilty. For emphasis;  11359 “L.I.O.”is not encompassed by the Controlled Substances Act,  also is not a lesser  necessarily included crime of CHS § 11360(a) as it sometimes reflected on a complain. Because the former in a normal setting can be committed without also committing the latter., the statutory definition of the lesser offense gives the Court power and jurisdiction to  convict of that lesser offense although the statutory definition of the lesser crime does not logically compose a part of the greater (People v. Marshall (1957) 48 Cal.2d 384, 405 [309 p. 2d 456] [citation omitted].

     It is a well-established principle of criminal law that “[a] criminal statute must be sufficiently definite to give notice of the required conduct to one who would  avoid its penalties and to guide the Judge in its application and the lawyer in defending one charged with its violation ( Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 96 L. Ed. 367 (1952). In Immigration content, categorical approach is the required methodology for determining whether a conviction triggers removal for a conviction for a controlled substance offense and looks to the statutory definition of the offense of conviction, not to the particulars of the “respondent “relating to” language of the controlled substance deportable ground.  Mellouli 2015 WL 2464047, (abrogates the cases that deviate and did not apply categorical approach) holding affirms the application of the categorical approach to the ground of removal, under 8 U.S.C. § 1227 (a)(2)(B)(i).

The Court relied heavily on the requirement of a “conviction” to trigger the consequences of  § 1227 (a)(2)(B)(i).  Congress by tying immigration penalties to convictions, intended to limit the immigration adjudicators assessment of a past criminal conviction to a legal analysis of the statutory offense, and to disallows examination] of the facts underlying the crime. See: Mellouli 2015 WL 2464047. Like Moncriffe, Mellouli makes clear that a Federal statute’s use of the phrase “convicted of’ unambiguously conveys Congressional intent to require the Categorical approach, with emphasis on conviction, this language provides additional support to categorical approach as the presumptive method of analysis where removal grounds are triggered by a conviction. Similar, in cases involving “relating to” statutes “some Courts have not required a strict element by-element match between the offense of conviction and the Federal baseline, the hallmark of the categorical approach. Instead they have focused on the nature of the defendants conviction and whether it “stand[s] in relation “pertain[s] has “bearing of concern “or comparison. Based on this looser approach the Government in Mellouli argued for a construction of  § 1227 (a)(2)(B)(i) which would reach state convictions in which no Federally-controlled substance is an element of the offense. Mellouli advocate for more limiting reading  of the law involving “relating to “ …a controlled substance ground” .,“refers to crimes generically defined Id. *14 n.3.  the majority applied the strict categorical approach to the controlled substance deportability ground based on focus on Congress’ “specification of conviction, not conduct, as the trigger for immigration consequences.

All in all, CHS 11359 “Lesser included Offense as much  as is not define by the State or encompassed by the Controlled Substances Act, we can agree that there is no point to even argue that it does not require that a specific controlled substance be identified,the fact remains that the state drug schedules are broader than the Federal schedules. Relevant to means versus elements divisibility test, the charged offense [id] is indivisible, and no conviction under the statute 11359 “L.I.O” triggers removal under controlled substance grounds as defined in § 802] figures as an element. Thus because in general “L.I.O” by definition punishes offenses where there is no actual controlled substance as an element of the offense, such offense should no longer be deportable offense under Mellouli.   


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[1] The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal. 4th 924, 8 Cal. Rptr. 2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a “plea of nolo contendere, not admitting a factual basis for the plea”); see also United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir. 2006) (“[A] plea of nolo contendere . . . is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty.” (citation omitted)). By entering a West plea a defendant “[does] not admit the specific details about his conduct on the . . . counts [to which] he pled guilty.”


[2] United States v. Thomas, 355 F.3d 1191, 1195 (9th Cir. 2004) (holding that although the penalty provisions relating to drug type and quantity in 21 U.S.C. § 841(b) must be treated like elements in that they must be submitted to a jury and proven beyond a reasonable doubt, they are nonetheless not elements of the offense).



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