*1 963 215, rеgarding 4 our decision section which materially Velasquez-Bos is identical. Velasquez-Bosque asserts Finally, efforts que’s distinguish section 215 from 211 215 differs section that section unavailing. from section 211 are We permit not a de 215 does because section of the therefore reverse the decision dis was property taken under fense that court, trict hold that 215 section 541 right. Becerril-Lopez, claim of Cf. § of of purposes crime violence for 2L1.2.5 dispositive, This is F.3d at Velas 892-93. REVERSED and REMANDED. claims, generic because rob quez-Bosque right of bery a claim defense. permit does Taylor categorical approach,
Under the
however, only to the con we “look fact of statutory definition of the
viction and the to determine whether the offense” generic definition. offense satisfies America, UNITED STATES 602, 2143; 110 Taylor, 495 U.S. S.Ct. Plaintiff-Appellee, v. Asberry, see States 394 also United v. Cir.2005) (“Under (9th 712, F.3d 715 STRICKLAND, Dennis Defendant- only we approach, consider categorical Appellant. ”). statutory elements offense.... No. 08-30091. an availability affirmative defense categorical analysis. is not relevant to the Appeals, United States Court Charles, v. See States 581 F.3d United Ninth Circuit. (9th Cir.2009) (dеclining to “ex Argued Sept. 2009. and Submitted approach analysis to pand categorical 19, 2010. April Filed widely accepted defenses” and incorporate categorical that the reiterating approach offenses). elements of only the
compares argument in-
Velasquez-Bosque’s is thus
apposite.4
Ill that Becerrih-Lopez, conclude
We
which held that section was a crime of 2L1.2, §of purposes
violence for controls (9th Cir.2001); 4. decision that F.3d United States Because of our section 215 is Kimble, (9th § 2L1.2 violence under as a combi- crime of n. 2 Cir. generic generic robbery and 1997). extor- nation of tion, Velasquez-Bosque’s reach we need not qualify 215 does argument that section not as government supplemental briefing, 5. In the other crimes enumerated in the one of Nieves-Medrano, argues reasoning “crime definition of of violence.” Guidelines’ carjacking which held that the California stat- Velasquez-Bosque’s do we reach state- Nor of violence ute at issue here was a crime ment, passing, that section 215 criminal- § immigration purposes under 18 U.S.C. generic robbery more conduct than be- izes carjack- compels holding that California accomplished can be cause the state offense ing is a 2L1.2 crime of violence well. argu- through force. non-intentional This Because we reach the same conclusion coherently developed in the ment was not through categorical analysis, we do appeal. R.App. See Fed. P. on briefs theory. this address alternative Techs., 28(a)(9)(A); v. Inter-Tel Kohler *2 CALLAHAN; Judge Opinion by KOZINSKI; Judge Cheif Concurrence THOMAS; by Judge Dissent Concurrence BERZON; by Judge by Judge Dissent *3 REINHARDT.
CALLAHAN, Judge: Circuit following appeals Dennis Strickland his receipt pos- conviction and guilty-plea for pornography. of child He chal- session lenges government’s proof sentenc- ing prior Maryland that a conviction for predicate child abuse was a offense relat- to sexual abuse a minor under ing of 2252A(b)(l) (2) resulting § U.S.C. and minimum maxi- statutory an increased and To prior mum sentence. show that Maryland predicate of- was fense, Maryland government offered a regis- sheet offender court docket and sex signed by tration documents Strickland Anthony Gallagher, R. Federal Defend- of Mon- Washington from the states and er, of Hel- (argued), Michael Donahoe and judg- affirm the tana. district court’s We ena, MT, Dennis defendant-appellant ment on the bаsis that the docket sheet for Strickland. Maryland conviction establishes that Mercer, Attorney, W. United States
Will predicate offense was for sexual abuse Hurd, (argued), Ryan M. Archer Marcia child, accordingly, of a do not reach Wolff, Eric B. Assistant United States question of whether the district court MT, Billings, Attorneys, of for the United consider sex offender could Strickland’s States. forms. registration
I charged Strickland was a two-count Receipt Pornog- with indictment Child KOZINSKI, Before: ALEX Chief (Count I), in raphy violation 18 U.S.C. SCHROEDER, M. Judge, MARY 2252A(a)(2), and § Possession Child REINHARDT, STEPHEN DIARMUID (Count II), in Pornography violation O’SCANNLAIN, F. ANN PAMELA 2252A(a)(5)(B). § pleaded He U.S.C. RYMER, THOMAS, R. BARRY SIDNEY plea agree- counts guilty both without BERZON, SILVERMAN, G. MARSHA S. report presentence ment. Strickland’s BYBEE, JAY M. S. CONSUELO (“PSR”) had been noted he convicted IKUTA, CALLAHAN SANDRA S. in 2002 abuse.1 for child The Judges. Circuit (currently Ma- codified 1. was convicted under former 35C ryland Art. Code PSR described the incidents of abuse in charges were dismissed. Under the head- detail, graphic and treated the conviction ing Information,” “Docket the docket sheet as a sexual offense. Strickland subse- “Registration stated: required quently pleaded guilty, and the sexu- Criminal Procedure Sec. 11-704. Defen- triggered al heightened statutory offense register dant to DNA. Defendant is a child minimum and maximum sentences.2 The sex offender.” PSR determined Strickland’s total of- government also offered sex offend- fense level was his history criminal registration er signed by documents III, category was advisory and his sen- Strickland from the states of Washington tencing guideline range was 210 to 262 and Montana. Strickland had registered *4 months. required these states as by their laws objected Strickland Maryland that his when he had moved to those states follow- categorically conviction was not a predi- ing Maryland his conviction. 2252A(b) cate § offense under 18 U.S.C. The district court held that the Balti- and could not be used to enhance his statu- more County docket part sheet was tory penalties. Strickland reasoned that state court record and therefore could Maryland proscribed statute both properly be considered. The court con- physical minor, and sexual abuse of a and cluded that the docket sheet was accurate was therefore over-inclusive pri- because a beyond a given reasonable doubt the other solely conviction for physical abuse information court, and evidence before the qualifying would not be a offense under including the two state sexual offender 2252A(b). § argued He govern- that the registration forms. The court overruled ment failed to acceptable introduce docu- objection Strickland’s and concluded that prove mentation to prior his offense the PSR calculations were correct. The was related to sexual abuse.3 court sentenced Strickland to concurrent At the sentencing hearing, govern- terms of 240 months incarceration on each ment introduced several in sup- documents count of the indictment. port of the enhancement. It offered an appealed Strickland and a three-judge uncertified docket sheet from the Circuit panel of our court affirmed the district Court for Baltimore County, Maryland, judgment, court’s holding that the sex of showing 2002, that in July Strickland had fender registration forms could be been consid charged with one count of “child ered when determining pursuant abuse” the nature of to MARYLAND CODE 35C; Maryland § ART. Strickland’s 2002 two counts of conviction. sexual Strickland, United States v. degree; offense-fourth two counts of at- 556 F.3d 1070(9th Cir.2009). tempted sexual degree; offense-fourth We then voted to re perverted one count of practice. In hear this appeal en banc. United States v. No- Strickland, vember pleaded (9th Strickland guilty 569 F.3d Cir. 2009). the count of “child abuse” and the other 3-601(West at § years.” more than 20 Ann., See 18 U.S.C. Md.Code Crim. Law
2009)). 2252A(b)(2). § 2. statutory Strickland’s minimum and maxi- objected 3. Strickland also to several other mum sentence for Count I was increased PSR, sentencing enhancements in the but he years from 5 to years. to 15 to 40 See 18 objections abandoned those sentencing at the 2252A(b)(l). § U.S.C. sentencing range His hearing they part are not of the instant for Count II was increased from "not more appeal. years” than 10 years to "not less than 10 nor Here,
II 740. the terms “aggra- abuse,” abuse,” sexual vated “sexual appeal, argues On involving a “abusive sexual conduct minor” produce judicially government failed 2252A(b) §in compared found must be prove documents sufficient to noticeable Maryland with elements of child child Maryland for his abuse statute under which Strickland was offense under 18 predicate abuse awas approach, convicted. this convic- Under 2252A(b). He contends U.S.C. Maryland tion under the statute will cate- categorical the modified misapplied court gorically predicate qualify as offense improperly on the approach and relied “only if the full of conduct PSR, sheet, range covered docket and the by the[Maryland] falls within registration forms when statute two sex offender Id.; prior conviction was a determining meaning that his terms.” see those also Baza-Martinez, review predicate offense. “We de novo United States v. F.3d 1014(9th that a con Cir.2006) (“[I]n district court’s conclusion order for a qualifies sentencing viction enhance qualify violation of the statute to as a state ment.” States Almazan-Becer United offense, range full predicate conduct (9th Cir.2008). *5 ra, 1094, 1097 537 F.3d by fall covered the state statute must with- scope statutory provi- in the of the federal violating A convicted for defendant sion.”) (internal quotation marks and cita- subject § to an sen- 2252A is enhanced omitted) (alteration original). tion prior tence if has a state conviction he abuse, sexual “relating aggravated to sexu- government The here concedes that abuse, al sexual conduct involv- or abusive Maryland Strickland’s conviction for the (2). 2252A(b)(l), § a ing minor.” 18 U.S.C. of not categorically offense сhild abuse is interpreted broadly We have this statute “relating aggravated an offense to sexual to state apply simply offenses that abuse, abuse, sexual or abusive sexual con- abuse, are to sexual rather equivalent but at involving duct a minor” because “any offense stands in some state Maryland time of offense the Strickland’s relation, upon, or is associated with bears to include statute defined child abuse both v. offense.” United States generic injury” “sexual “physical and abuse.”4 (9th Cir.2007). 737, Sinerius, 743 504 F.3d The thus covered con- statute of whether a The determination that is the conduct con- duct broader than predicate prior qualifies as sex conviction 2252A(b), templated requires § which by 2252A(b) governed by § is offense under prior that the related to offense be sexual approach categorical announced qualify abuse to an enhanced federal States, 575, Taylor 495 600- U.S. United range sentence. Because the full con- (1990). 02, 2143, L.Ed.2d 607 110 S.Ct. Maryland statute duct covered does categorical approach “generally re meaning not fall within the of the federal quires only trial court to look to the statute, prior Strickland’s is not and the statutory fact of conviction defini categorically predicate offense under 602, tion offense.” Id. of the at 2252A(b). § requires approach This a com S.Ct. 2143. Where, here, state statute is parison elements of the crimi state definition broader than the federal predicate nal with the offense as offense Sinerius, offense, use predicate “we must the so in the federal statute. defined 27, (2002) (re- 35C(a)(2) separate statutory provisions. See 4. See md. code Md. Code art. 1, 2002). 3-601, (West 2009). Physical pealed injury §§ eff. Oct. 3-602 Ann., Crim. Law, of children are now sexual abuse covered (1) categorical approach, called modified sion we pursuant determine that: requires which us to determine —if we our decision in Snellenberger, the district can—whether the conduct for which the properly court considered the docket defendant was convicted fits within the (2) sheet; instance, in this there was no federal definition of the offense.” United certified; need for the docket sheet to be Snellenberger, States v. (3) the docket clearly sheet indicates (9th Cir.2008) (en banc) (citing Taylor, 495 pleaded that Strickland guilty to sexual 2143). at so, U.S. 110 S.Ct. In doing abuse a minor. Supreme Court has directed that the inquiry “generally is limited to examining A. The district court properly reviewed definition, statutory charging docu the docket sheet. ment, plea agreement, written transcript In Snellenberger, we held that a court plea colloquy, any explicit factual consider clerk’s minute order when finding by judge the trial to which the applying categorical the modified ap- Shepard defendant assented.” v. United proach. 548 at F.3d 702. We held that States, 544 U.S. 125 S.Ct. the minute order had requisite reliabil- (2005). list, however, L.Ed.2d 205 This is (1) ity because it was “prepared by a court illustrative and other equal “documents of official at guilty the time the plea is taken reliability may also be considered.” Snel (or (2) afterward),” shortly the “official is lenberger, 548 purpose F.3d 701. Our charged by recording law with pro- to determine whether documentation or (3) ceedings accurately,” and “the defen- judicially noticeable facts clearly establish dant had the right to examine and chal- pleaded guilty defendant to facts *6 lenge its content.” Id. by predicate covered the offense. United Gomez-Leon, States v. 545 F.3d 783- The docket sheet from the Circuit (9th Cir.2008) 84 (noting may that “we Court of Maryland meets these criteria. inquiry make limited into the facts of the First, Maryland the provide Rules that the underlying conviction to determine wheth Maryland clerks of Circuit Courts are re er the conviction was based on all of the sponsible for maintaining dockets. Md. qualifying elements of a predicate of Second, Rule 16-305. Maryland pro law fense”) (internal quotation marks and cita vides that the court “custody clerk has of omitted); tion Crawford, United States v. books, records, the papers of his of (9th Cir.2008) 520 F.3d 1078 (noting fice” and shall proper legible “[m]ake en prior that a may qualify offense as a ca tries of all proceedings of the court and reer predicate offender if offense “docu keep them in well-bounded books or other mentation or judicially noticeable facts permanent form.” Md. Code & Cts. Ann., clearly establish that the conviction is a (a)(1) (2) (West 2009). 2—201 — Jud. Proc. predicate conviction for enhancement pur Moreover, 202(f) Maryland Rule states 8— poses”) (quotation marks and alteration that entry of a judgment in a case “occurs omitted).
... when the clerk ... first makes a rec Ill ord in writing the of judgment the ... on jacket, the file file, on a docket within the We determine that the docket sheet or in a docket book ... and records the Maryland from the Circuit clearly Court actual date of entry.” We determine establishes that Strickland pleaded guilty that minor, applicable law, to sexual under the abuse of a state and thus district properly court docket gave him an sheet meets en- the first two criteria hanced sentence. In reaching this conclu- set forth in Snellenberger for use of a sheet, determining aceuracy the docket but nonethe- by a of court when document “the conduct for which the defen- that it was certified less asserted unless whether the federal was convicted fits within dant sheet could not be considered. the docket F.3d at 701. of the offense.” 548 definition might be support position Some this from the govern- extracted fact that “the Maryland statu- case and Our review ment bears the burden to demonstrate that also shows the docket sheet tory law qualifying that conviction was Snellenberger prong the third of the meets Gomez-Leon, 785; at offense.” 545 F.3d Maryland Rule 4-621 of the standard. “[cjlerical Kelly, see also United States v. Rules states mistakes (9th Cir.2005) that “the (noting may be corrected parts ... record any initia- government court at time on its own has burden to establish tive, such any party or on motion after clearly unequivocally the conviction The rules provide “[o]n notice.” also all of was based on the elements of a initiative, appel- on its own offense”) (internal motion or qualifying predicate court order that an error late omitted). marks and quotation citation Md. in the record be corrected.” omission burden, however, This does not re 414(a). Furthermore, Maryland Rule 8— government routinely quire pro in the dock- courts have held mistakes copy vide certified a docket sheet or be entry et should corrected. Caldwell order, where, here, minute least State, Md.App. A.2d question prof there is no reason to (2005) (holding that the clerk must correct authenticity fered docket sheet’s or con guilty entries reflect the not the docket Although tent. was not raised certification Ac- transcript). verdict reflected Snellenberger, our that certi conclusion cordingly, we conclude that Strickland a prerequisite fication is not to consider the right counsel had his ation of a docket from our sheet flows challenge examine and the content law to of a responsibility discussion defendant’s Indeed, docket sheet. challenge a minute In order.5 Snellen has not contended otherwise. berger, ability we held that a defendant’s *7 instance, B. In this docket sheet the to check the case to ensure its file and did not have to be accuracy, coupled certified. with defense counsel’s so, professional obligation do allowed a to law, Despite existing Maryland find that a court to minute order met the argues Strickland that the district court in reliability Shepard. standard set forth should not have considered the docket Snellenberger, 548 Pursuant it was F.3d at 702. sheet because not certified. When argument, approach, at oral could to this the fact that a docket pressed counsel not, itself, any questioning not offer reason for the not certified in a sheet is is event, obligation. analogy any by 5. We wrote: sional In transcripts, enough to it's that the minute par- from It’s not clear the record whether prepared by order wаs a neutral officer of criminal ties to a case in California are court, the and that had the the defendant given copies of the at clerk’s minute order content, right challenge file, to examine and its placed time it is the but case actually Having whether or not he did. certainly suggestion there is no that it’s a challenge minute always failed or correct the document. A defendant can secret perhaps there any file order in state because check the case and ensure that court— doing Snellenberger placed accurately wasn’t a basis for materials reflect there so— part by proceedings; presumably, doing says.... now bound it so is is what profes- Snellenberger, every lawyer's criminal defense at 702. 970 However, two on the docket sheet
legitimate ground questioning for its relia- entries Rather, bility. ability of the of a light confirm that was to sexual abuse. plea case file and the First, states, defendant to cheek the sheet the docket “Defendant so, obligation to do a docket of counsel is a child sex offender.” As Strickland face, sheet, regular on is entitled to a its count, that only pleaded guilty to one course, authenticity. if Of presumption count must be the basis for this determina- any reasonable the defendant offers inaccurate, tion. if it Certainly, were document, questioning ground ob- attorney Strickland or his could have may require court that the docu- district jected by Maryland law. See as allowed be certified authenticat- ment or otherwise Caldwell, Second, at 220. 884 A.2d However, here, counsel ed. offered no re- “Registration docket sheet states: question docket sheet. Ac- reason 11- quired under Procedure Criminal Sec. cordingly, even without certi- we hold that register 704. Defendant to DNA.” Section fication, sheet, Maryland which the docket ll-704(a) requires registration of sexual requires prepared law be maintained offenders sexual and child offenders. Md. clerk, a court which defendant has 704(a)(West § Ann., Code Crim. Proc. 11— correct, right to review and is of suffi- 2009). pleaded guilty Because Strickland Shepard reliability cient under and Snel- count, to a single requirement that he Thus, lenberger. proper- the district court ll-704(a) register § confirms ly determining considered it whether plea than was to sexual abuse rather Striсkland was convicted of sexual abuse of Thus, physical only a child.7 abuse of a minor.6 reading fair of the docket sheet is pleaded guilty to sexual abuse clearly C. The docket sheet indicates of a minor. pleaded guilty that Strickland a minor. sexual abuse of IV Although sheet the docket is not a categorical approach modified clarity, reading model of a fair judicial version three-card monte. document leaves no doubt that Strickland Rather, challenge is to determine pleaded guilty to sexual “abusive conduct whether a under a non-categori- involving minor.” U.S.C. (2). clearly cal state 2252A(b)(l), statute was based on facts § It is true that the stat guilty, generic ute to which meet the federal definition of pleaded he 600-02, 35C, Taylor, Art. included the crime. “physi both See U.S. at Code injury” 2143; Shepard, cal and “sexual abuse” of a child. S.Ct. U.S. *8 clear, analysis ally regis- As our predator.” Accordingly, 6. makes we hold that violent the properly upon the district requirement premised court relied the tration was on Strick- Maryland's docket sheet being because numerous land sexual "child offender” unless complies that argument statutes and rulеs ensure it plausible with there is he some that "offender,” requirements the we announced in might Snellenber- have been an and an that express ger. opinion We no as to whether a might person "offender” include a had who pass different state’s docket sheet would mus- engaged in abusive sexual conduct involv- requirements. ter under those ing argument a minor. is no such There because under the definition of "offender” set (h) ll-704(a) requires registration Maryland 7. Section the forth in Section 11—701 offender,” Procedures, "offender,” only "aof child sexual an Code of Criminal the defini- "sexually "sexually charge violent and a that against offender” tions of "offender” fit the predator.” alleged violent Strickland was not Stricldand abusive sexual involve conduct "sexually be a violent offender” or a with a "sexu- minor.
971
1254; Snellenberger,
at
thentication or
barred the
certification
dis
125 S.Ct.
sheet,
Here,
min-
relying
701.
the docket
like the
trict court from
on the docket
Snellenberger,
requi-
sheet,
has the
affirm,
ute order in
I’m not at all sure we could
considered
allows
reliability
site
to be
nothing
there is
in the
almost
record
no
conclusion other than
reasonable
about what
is or
it
this document
where
guilty
sexual
pleaded
that Strickland
came from. But Strickland waived that
Nothing
re-
abuse
a child.
more is
argument.
In
brief he
opening
his
refers
law.8
quired
According-
or case
by statute
to the document as “an uncertified State
the
court’s enhancement of
ly,
district
court docket sheet.” He thus concedes it’s
is AFFIRMED.
sentence
Strickland’s
argue
a docket
but
sheet
doesn’t
it
relying
district court erred in
on because
KOZINSKI,
Judge, concurring:
Chief
brief,
government’s
it’s uncertified. The
majori-
much of
I concur with
the
While
naturally, says nothing
point.
on this
This
opinion,
agree
Judge
I
with
Reinhardt
ty
in a
important
should be decided
issue
case
that
failure to decide whether the dis-
parties
it
actually
where
brief
so we
relying
trict
on Strickland’s
court erred
make
I
can
an informed decision. would
registration forms is both
sexual offender
objection
therefore deem that
waived.
It’s
wrong
wrong
unfortunate.
for the
See, e.g.,
of Ariz.,
Dream
Inc. v.
Games
PC
by Judge Reinhardt and one
given
reasons
(9th
Onsite,
994-95
F.3d
Cir.
judge
more:
below
on
The district
relied
2009).
in finding
forms
that
registration
said,
certainly
That
it
have
would
been
predi-
had been convicted of a
produced
if the government
better
had
сate
offense
U.S.C.
“agreed
Judge
statement of facts”
2252A(b)(l);
know
we don’t
whether he
Berzon refers to in her dissent. Berzon
the same
in the
finding
would have made
Dissent at
This document
5795.
sounds
If his
the forms.
reliance on
absence of
falls squarely
like it
within the ambit of
was improper
forms
as a
registration
States,
Shepard v.
United
U.S.
law,
give
matter
should
we
remand and
(2005),
S.Ct.
of a
from
plea may
basis for his
not be
be inferred
silence.
the factual
—
many
for
that serve
available
convictions
say
Shepard
one
The most
can
about
sentencing
for
en-
predicates
as
federal
affirmatively
that it
authorize the
doesn’t
hancements.
registration
may
use of these
forms. This
Shepard
the
wanted
significance
majority
Hence the
of sex offender be because
Taylor
the
narrow
They
ubiquitous,
inquiry
forms:
are
to limit
to a
registration
(as
judicially-created
frequently updated.
range
available and
of
documents
locally
importantly,
personally
argue),
likely
here
more
they
Most
are
the dissenters
but
a
signed by
pursuant
legal
thinking
defendants
it’s
the Court wasn’t
because
by
penalties.
post-
obligation
registration
backed
criminal
about
forms and other
up
by
to come
admissions
government
The
here was able
the defendant.
by
such
Strickland
dealt with
and
signed
Shepard
with three
forms
statements made
plea
years,
certifying
over the course of two
all
documents created at the time
that he had been
sex of-
and the
had no
convicted
was entered
Court thus
any
The sex
to address
made
change-of-address
fense.
offender
occasion
admissions
City
point
form Strickland filed with the
the defendant at
later
time.
2006,
4,
August
Falls on
has an
Great
Shepard pleaded
to his
guilty
When
printout
attached database
that describes
crime,
police
were
reports
earlier
“Maryland
his crime as
Child
Sexual
plea
part
agreement
Shepard
and
provides
precise
Abuse” and
date of
by plead
therefore did not admit to them
sentencing.
Montana De-
Strickland’s
The
ing guilty.
police reports
Nor did the
partment
signed
of Justice form Strickland
judicial
any
imprimatur;
have
all we
for
8, 2006,
February
on
notes that Strickland
judge
guilty
aсcepted
know the
who
was
sentenced
offense
plea
not even
was
aware of them
2002,
November
it as a sexu-
identifies
certainly
adopt
did not
them true. The
16-year-
involving
al offense
Strickland’s
Supreme Court
therefore
held
documents,
step-son.
old
These
when tak-
police
couldn’t
reports
be considered
sheet,
with
together
en
the docket
leave no determining the nature of that conviction.
previ-
room for doubt that
was
the Court’s
Some of
reasons involved
ously
“relating
convicted of a crime
to ...
practical
avoiding
considerations about
sexual
involving
abusive
conduct
a minor
“evidentiary
“collateral
trials” and
dis
2252A(b)(l).
or ward.” 18 U.S.C.
putes.” Shepard, 544
at
& n.
U.S.
19-23
4,
problem
kind of
Equally
This
is sure
arise
1254.
how
significant,
125 S.Ct.
again,
important
ever,
so it’s
to decide whether
the concern that
importing
was
registration
sex offender
third-party
forms
be
narrative to which defendant
clarify
affirmatively
used
nature of a
convic- didn’t
violate
assent would
guilty plea
tion
Apprendi
Jersey,
under the modified cate-
v.
530
rule
New
490,
approach
gorical
Taylor
United
120
L.Ed.2d
U.S.
S.Ct.
147
States,
(2000).
495 U.S.
109
See
at 24-
Shepard,
S.Ct.
544 U.S.
(1990).
1254;
By ducking
ques-
26-28,
L.Ed.2d 607
id. at
125 S.Ct.
S.Ct.
tion,
1254(Thomas, J.,
majority
сoncurring).
Shep
leaves the field to the
dissenters,
present
superficially
who
plurality
ard
Justice Thomas were
plausible argument that the district court’s
the factual
concerned
reconstruction
Shepard,
reliance on such
process
records violated
would bind
to facts
defendants
24-26,
pres-
(there, Shepard’s
1254. I
entry
building)
U.S.
S.Ct.
into a
*10
jury
filling
they
lawyers
that no
before
out forms
they never admitted and
It’s en-
beyond
oppressive
a reasonable doubt.
must find
and odious.
found
had
tirely
registrant may
that a
be
possible
materially
is
different.
case
Our
register,
his
to
obligation
mistaken about
trying
is
to saddle
government here
not
reasonably
just
I’m
though
confident that —
facts
he never
with
to which
in
people seldom commit tax errors
the
as
Rather,
us
the
asks
government
assented.
mis-
government’s
people
favor—far more
did ad-
what facts Strickland
to determine
takenly
register
fail to
than those who
that would be
mit. The best evidence of
error,
mistakenly sign up.
But this risk
presented
factual
agreed
the
statement
in
just
ap-
like that
the minute order we
plea colloquy
the
or some
plea,
with his
Snellenberger,
in
v.
proved
United States
with
contemporaneous
document
similar
702(9th Cir.2008) (en
banc),
But
would
good
itself.
almost as
plea
fatal.
If a
confronted
isn’t
defendant is
admission,
open
own
in
be Strickland’s
registration
a
form
in
signed
with
that he
court,
prior
his
conviction was for
form,
error,
try to
he can
amend the
see
child,
sexually abusing a
as such an admis-
id.,
explain
present
or
con-
error
Apprendi.
complies with
See United
sion
temporaneous
showing
records
that he was
Booker,
U.S.
States
actually required
a sex
(2005)
register
not
to
as
(“Any
Some not seek 2005.” “Completed “April Treatment” in completing registration counsel before form, just three lines though many page, I’m do consult And on the second certain *11 for until signature, clearly resolving
below Strickland’s it them. Unless and the form, otherwise, says two-page Supreme so we I it’s Court holds would sig- know that the with Strickland’s page hold that courts district consider nature wasn’t attached after-the- simply forms, conjunction these in with other evi- Moreover, fact. Strickland’s signature dence, to determine whether defendant’s duty certifies that his] he prior qualifying predicate conviction “understand^ register.” By certifying to that he under- offense. duty register on a stands his to form Because the district court here consid- expressly duty
which
predicates
on
registration
ered Strickland’s
forms to-
offense,
prior
clearly
his
sexual
sheet,
gether with the docket
and the doc-
acknowledged
pri-
the sexual nature of his
together
uments
no
leave
doubt that his
or conviction.
Maryland
was for
conviction
sexual con-
Judge
objection to
Berzon’s
the use of
ward,
duct
involving a minor
I would
event,
is,
any
these forms
in
a side-show.
endorse what the district court did here
question
The
we must decide is whether
and affirm on that basis.
forms,
sex
registration
general,
offender
may be
on
a district
by
relied
court. That
THOMAS,
Judge, concurring:
Circuit
ambiguous
these forms are more
than
I agree
Judge
with
Berzon that docket
Judge
prefer
Berzon would
is neither here
sheets,
category,
a general
as
are not in
Many
nor there.
other defendants will herently
do not qualify
reliable and
as
signed
have
much clearer forms and the
satisfy
rigorous
documents that
the
stan
alleged ambiguity of these forms has no
necessary
dard
be used
to
as conclusive
bearing
question
on
larger
of whether
proof
prior
Shepard
of a
conviction.
See,
such forms are
at all.
e.g.,
usable
States,
13, 21,
United
544 U.S.
125 S.Ct.
Snellenberger,
F.3d at 702(authorizing
(2005);
975 States, 13, 21, 125 544 U.S. S.Ct. BERZON, whom United Judge, with Circuit (2005), REINHARDT L.Ed.2d 205 I dissent. and SCHROEDER Judges joins THOMAS Judge whom join, and with I. III, dissenting:
as to Part
explained Ap
in
Supreme
As the
Court
of re-
was convicted
Dennis Strickland
466, 490,
Jersey,
v. New
530 U.S.
prendi
pornography.
of child
ceipt
possession
(2000),
II. directly Neither comment ties offender.” fact, Maryland docu- particular In registration requirement or the status fallibility proves at ment issue here conviction. to the crime of docket sheets and similar documents. short, only information appears In it which, majori- to the according information that the child abuse conviction indicating that Strickland was convicted ty, proves copy is attached to this dissent. 1. A of the Document Cir.2008) (9th (emphasizing for a sexual offense was entered on 643-45
was
years
guilty
Document three
after the
applies only
directly
“exception
to facts
sentencing.
It
conviction and
would
plea,
conviction,
in the
reflected
documents of
to infer that
2005 “Dock-
plausible
be
secondary
not to
facts that are
derived
entry describing
of November
et”
events
...
from
the conviction docu
inferred
by cutting
pasting
was created
ments” or to “documents that were not
entry
sheet
earli-
docket
was created
as a
with
developed
process
result of[a
“Inferences, however,
insufficient
er.
are
(internal
safeguards]”)
Amendment
Sixth
approach.”
categorical
modified
omitted).
quotation
accordingly
haveWe
Gonzales,
v.
465 F.3d
Cisneros-Perez
Apprendi precludes
held that
us from
(9th Cir.2006).
The Document also broadening
encom
Almendarez-Torres
point
indicates that Strickland was at some
juvenile convictions,
pass past
United
convicted of a sexual offense. But the
Tighe,
States v.
266 F.3d
1194-95
sentencing judge necessarily had to draw
(9th Cir.2001); removal proceedings, Unit
confusing
an inference from the
and am-
Covian-Sandoval,
ed
F.3d
States
Document
a “fact” that
biguous
to find as
(9th
Cir.2006);
1097-98
or a defen
particular
question
conviction in
was
status, Butler,
probation
dant’s
so,
doing
*15
sexual
By
for child
abuse.
the
645.
compromised
court
district
Strickland’s
rights,
protected
constitutional
as
principles
The same
a sen-
dictate that
Apprendi,
by jury
to a trial
of uncertain
tencing court
not
the
“read[ ] between
essential to the
facts
sentence.
predicate
lines” to establish a
conviction.
v.
292
Sandoval-Venegas,
United States
connection,
is
noting,
It
worth
in this
1109(9th Cir.2002).
1101,
Supreme
F.3d
States,
that Almendarez-Torres v. United
224, 243-47,
1219,
precedent
certainty”
Court
“demand[s]
523 U.S.
as
118 S.Ct.
140
(1998),
L.Ed.2d 350
created a narrow ex
to the factual basis for the
convic-
earlier
whereby
ception
tion,
the fact of a
convic
prior
21,
Shepard, 544
at
125
U.S.
S.Ct.
need
alleged
tion
not be
in an indictment
1254,
must if
as it
the Almendarez-Torres
proven
jury beyond
or
to a
a reasonable
prior
exception
Appren-
convictions
to the
Subsequent
doubt.
cases illustrate that
requirements
di
is to survive. The Docu-
shaky
Almendarez-Torres
stands on
con ment
does not provide
requisite
here
ground, giving
stitutional
to an obli
rise
unequivocal proof.
strictly
gation
police,
to
than
rather
I
the inadequacy
note that
of the Docu-
expand,
parameters
exception
of that
by
prosecution
ment
supplied
was the
topple
entirely
lest
it
as
without basis.
diligence,
result of lack of
not unavailabili-
25,125
Shepard, 544
at
See
U.S.
S.Ct. 1254
ty
unequivocal proof.
of
The
convic-
2002
(cautioning that Almendarez-Toms
does
was,
Document,
according
tion
to the
permit
sentencing judge
not
to resolve
“agreed
an
based on
statement
facts.”
of
any fact that “can be described as a fact
statement, assuming
That
it
that
showed
conviction”);
prior
Apprendi,
about
530
Strickland had committed
sexual
child
(character
487, 489,
U.S. at
child sexual abuse.
Conclusion
upshot
long-
The
is that even if these
actually
If Strickland was
convicted of
after-the fact forms could be relevant to
abuse,
government
child sexual
could
question
of what Strickland was con-
documents,
charging
have introduced the
which,
Shepard they
victed
under
can-
of—
facts,
agreed statement of
or other convic-
they
ambiguous
partially
are
in-
not—
approved
Shepard
tion records
accurate, do not include direct admissions
that fact.
government
show
instead
Strickland,
require judicial
infer-
offered several unreliable documents that
reading
ence and
between the lines before
not,
tandem, unequivocally
do
alone or in
they
interpreted
Judge
can be
as Chief
the fact that
establish
Strickland was con-
interpret
Again,
Kozinski would
them.
“[ijnferences, however, are insufficient un- victed of a sexual
majority
offense. The
categorical approach.”
der the modified
opinion, by
trial
permitting
“go[
courts to
]
Gonzales,
Cisneros-Perez v.
beyond conclusive rеcords made or used in
(9th Cir.2006).
adjudicating guilt,” Shepard,
do Busiere, on behalf of themselves caused the court to the issue that address similarly situated, those Plaintiffs- an abuse of the en banc constitutes go en Appellees, future district process. It allows banc *23 of our court tо panels and future courts error, result- panel’s repeat the Strickland eas- QUIXTAR, INC.; Puryear, decisions which could
ing erroneous James Ron by resolving the issue in this ily Jr.; Georgia Puryear; be avoided Lee World LLC; proceeding. Group Wide Britt Worldwide LLC; Multimedia, Inc.; American Al- not a difficult one. The issue is Management, Inc.; Britt; Britt Bill majority explicitly declines to though the Peggy Britt, Defendants-Appellants. it, dissenting judges agree reach the four may considered and that the forms not be No. 08-15880. any judge on the
there is no indication Appeals, United States Court of court, than iconoclastic banc other our en Ninth Circuit. The Judge, approves of their use. Chief question majority’s duty was to resolve Argued and Oct. 2009. Submitted It go the court to en banc. caused April Filed 2010. by holding so that sex should have done registration forms and similar ex- offender
tra-judicial forms not be considered categorical of the modified purposes
for issue, Instead, by avoiding the
approach. perpetuates exactly
it the kind of unneces-
sary important confusion on an issue designed to avoid. process
the en banc is purpose proceeding of an en banc is simply to determine whether result correct, particular
in a nor is an en case is simply
banc court convened to second
guess three-judge panel. The reason to maintain
invoking process the en banc circuit consistency of the law of the exceptional impor-
and to resolve issues of Here, P. the en R.App.
tance. Fed. 35. obligation.
banc court fails its essential