FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE REYES RUIZ-VIDAL,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 11-73433

Agency No.

A034-639-824

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 6, 2014—Pasadena, California

Filed June 17, 2015

Before: Stephen Reinhardt, Alex Kozinski

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Judge Reinhardt
2 RUIZ-VIDAL V. LYNCH

SUMMARY*

Immigration

The panel denied Jose Reyes Alberto Ruiz-Vidal’s

petition for review of the Board of Immigration Appeals’

decision finding him removable because he was convicted of

possessing a controlled substance which could be identified

as methamphetamine. 

The panel held that Ruiz-Vidal was removable as an

aggravated felon due to his no contest plea to simple

possession under California Health & Safety Code

§ 11377(a), a lesser included offense to Count 1 of the

Information, sale of methamphetamine in violation of CHS

§ 11379(a). Applying the modified categorical approach, the

panel held that clear and convincing evidence in documents

permissible for review established that Ruiz-Vidal pleaded to

and was convicted of possession of methamphetamine.

Dissenting, JudgeReinhardt would ask rather whether the

record provided clear, unequivocal, and convincing evidence

that Ruiz-Vidal was convicted of possessing

methamphetamine, and would determine whether his plea to

possession of a controlled substance, as a lesser included

offense to sale of methamphetamine, necessarily constitutes

a conviction for possession of methamphetamine. Judge

Reinhardt wrote that the majority’s adoption of a new

exception to United States v. Vidal, 504 F.3d 1072 (9th Cir.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RUIZ-VIDAL V. LYNCH 3

2007) (en banc), for pleas to lesser included offenses as

memorialized in a plea colloquy is unwarranted and unwise.

COUNSEL

Christopher G. Clark (argued), Catherine R. Holmes and

GregoryL. Shiferman, Boston, Massachusetts, for Petitioner.

Stuart F. Delery, Principal Deputy Assistant Attorney

General, Richard M. Evans and Mary Jane Candaux,

Assistant Directors, Michael C. Heyse (argued) and Virginia

Lum, Attorneys, United States Department of Justice, Civil

Division, Washington, D.C., for Respondent.

OPINION

KOZINSKI, Circuit Judge:

Jose Reyes Alberto Ruiz-Vidal, a native and citizen of

Mexico, has lived in the United States since August 1976 as

a lawful permanent resident, but he hasn’t behaved himself. 

Among other transgressions, he’s been charged with

methamphetamine-related crimes at least twice before and, as

a result, has repeatedlyfaced deportation proceedings. We’re

tasked with reviewing his latest dalliance. We consider

whether he is removable due to his no contest plea to a lesser

included offense when we apply the modified categorical

approach.
4 RUIZ-VIDAL V. LYNCH

I.

In 2009, California filed an Information charging RuizVidal with sale and possession for sale of a controlled

substance, which the Information identified as

methamphetamine. Ruiz-Vidal pleaded no contest to simple

possession—a lesser included offense of the sale charge. He

was sentenced to time served and five years felony probation.

The Department of Homeland Securityserved Ruiz-Vidal

with a Notice to Appear, and an Immigration Judge

concluded that Ruiz-Vidal was removable because he was

convicted of “a controlled substance offense which can be

identified as methamphetamine.” He appealed to the Board

of Immigration Appeals, which agreed with the Immigration

Judge. We review Ruiz-Vidal’s petition to vacate the

removal order.

II.

An alien is removable if the government proves by clear

and convincing evidence that he’s been convicted of an

aggravated felony, which includes convictions for offenses

involving a controlled substance covered by the Controlled

Substances Act (“CSA”). See 8 U.S.C. § 1227(a)(2)(B)(I);

Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir.

2009). We review whether Ruiz-Vidal was convicted of a

controlled substance offense de novo. Cabantac v. Holder,

736 F.3d 787, 792 (9th Cir. 2012) (per curiam). To determine

whether an alien’s offense is an aggravated felony, we

compare the elements of the statute of conviction to the

definition of aggravated felony under federal law. See Taylor

v. United States, 495 U.S. 575, 602 (1990).
RUIZ-VIDAL V. LYNCH 5

California Health and Safety Code § 11377(a) is “a

divisible statute, and thus we apply the modified categorical

approach” to analyze Ruiz-Vidal’s conviction and determine

whether it involved a substance included in the CSA. 

Coronado v. Holder, No. 11-72121, 2014 WL 983621, at *1

(9th Cir. Mar. 14, 2014); see also Ruiz-Vidal v. Gonzales,

473 F.3d 1072, 1078 (9th Cir. 2007) (yep, that’s our guy). 

Section 11377(a) lists alternative potential offense elements,

“some of which are contained in the CSA and some of which

are not.” Coronado, 2014 WL 983621, at *4. For example,

chorionic gonadotropin isn’t on Schedule III of the CSA, but

is on California’s Schedule III. Id. at *3 n.1; see also Cal.

Health & Safety Code § 11056(f)(32). Where a statute is

divisible we’re permitted to review certain documents to

determine which alternative in the statute applies. Descamps

v. United States, 133 S. Ct. 2276, 2281 (2013).

1. When applying the modified categorical approach,

we’re restricted to “consult[ing] a limited class of

documents” to determine whether the crime qualifies as an

aggravated felony. Id. In this case, documents we may

consider include Ruiz-Vidal’s plea colloquy, the charging

information and the clerk’s minute order. See id. at 2283–84;

United States v. Leal-Vega, 680 F.3d 1160, 1168 (9th Cir.

2012). After we determine the elements of the crime of

conviction, we compare them “with the elements of the

generic crime,” Descamps, 133 S. Ct. at 2281, as we would

under the categorical approach.

Ruiz-Vidal argues that his record of conviction doesn’t

identify the controlled substance to which he pleaded—that

is, that we can’t tell from looking at the limited class of

acceptable documents whether he pleaded to possession of

methamphetamine or some other substance, say chorionic
6 RUIZ-VIDAL V. LYNCH

gonadotropin. But Count 1 of the Information charged RuizVidal with unlawful “SALE OF A CONTROLLED

SUBSTANCE, a violation of section 11379(a) of the

HEALTH AND SAFETY CODE of California . . . to wit:

methamphetamine.” Count 1 also includes an allegation that

Ruiz-Vidal “possessed for sale/sold 57 grams or more of a

substance containing methamphetamine.”

At his plea colloquy, Ruiz-Vidal confirmed that he was

pleading no contest to the lesser included offense of Count 1

of the Information, not just to an untethered violation of

§ 11377(a) (possession). The court asked for Ruiz-Vidal’s

plea “to the lesser included to Count 1, a violation of Health

and Safety Code Section 11377(a),” and Ruiz-Vidal

responded “[n]o contest.” The court then made a finding of

guilt, and the government indicated that the “remainder of the

complaint would be dismissed.”

The court’s minute order—another document that’s

permissible to review under the modified categorical

approach, see Leal-Vega, 680 F.3d at 1168—confirms that

Ruiz-Vidal pleaded to the lesser included offense of Count 1. 

It states that Ruiz-Vidal entered a plea to the “lesser

included/reasonably related offense” of “Count 1” and

indicates that Ruiz-Vidal stipulated that a factual basis

existed for the plea. Where a minute order specifies that a

defendant pleaded to a specific “count of the criminal

complaint or indictment, we can consider the facts alleged in

that count.” Cabantac, 736 F.3d at 794.

And when a defendant references a specific count during

his plea colloquy, we can also consider the drug listed in the

charging document. See id.; see also United States v.

Snellenberger, 548 F.3d 699, 701–02 (9th Cir. 2008) (en
RUIZ-VIDAL V. LYNCH 7

banc) (per curiam). Furthermore, a plea referencing a “to

wit” count in a charging document suffices to establish the

controlled substance for removal purposes. Leal-Vega,

680 F.3d at 1168–69; United States v. Valdavinos-Torres,

704 F.3d 679, 687–88 (9th Cir. 2012). In Leal-Vega, for

example, the defendant pleaded guilty to “Count 1” of the

complaint, which stated that he possessed “for purpose of sale

a controlled substance, to wit, TAR HEROIN.” 680 F.3d at

1168 (emphasis omitted). We found the conviction to be for

a drug trafficking offense because the minute order stated that

the conviction was for Count 1. Id. at 1168–69. Similarly, in

Valdavinos-Torres, we held that a defendant’s conviction was

an aggravated felony for purposes of removal after reviewing

a plea form indicating that he’d “pled guilty to Count Two,”

which the complaint described as possession for “sale [of] a

controlled substance, to wit, Methamphetamine.” 704 F.3d

at 687–88. Thus, Ruiz-Vidal’s plea—which references a

specific count in the Information—and the Information,

which references a specific controlled substance, provide

clear and convincing evidence that Ruiz-Vidal committed a

removable offense.

2. Ruiz-Vidal further argues that we can’t consider the

reference to methamphetamine in the Information because, by

pleading no contest to a lesser included offense, he “pled to

an offense different from the one charged.” In essence, he

argues that possession of another controlled substance, say

chorionic gonadotropin, could be a lesser included offense of

the sale of methamphetamine charge.

But, in addition to asking us to overlook his plea’s

specific reference to Count 1, Ruiz-Vidal ignores the meaning

of “lesser included offense.” Although it “is ancient doctrine

. . . that a defendant cannot be held to answer a charge not
8 RUIZ-VIDAL V. LYNCH

contained in the indictment,” our criminal justice system has

long permitted a defendant to be found “guilty of any lesser

offense necessarily included in the offense charged.” 

Schmuck v. United States, 489 U.S. 705, 717–18 (1989)

(emphasis added). California defines a lesser included

offense as: “[w]here an offense cannot be committed without

necessarily committing another offense, the latter is a

necessarily included offense.” People v. Tinajero, 24 Cal.

Rptr. 2d 298, 300 (Cal. Ct. App. 1993). California courts

determine whether an offense is necessarily included by

reviewing whether the facts actually alleged in the accusatory

pleading include all the elements of the lesser offense, so that

the greater offense cannot be committed without also

committing the lesser offense. People v. Birks, 960 P.2d

1073, 1078 (Cal. 1998); see also Tinajero, 24 Cal. Rptr. 2d at

301 (“Both possession for sale, and simple possession, are

lesser included offenses of [] sale . . . .”); Judicial Council of

California Criminal Jury Instructions, 2 CALCRIM No. 2300

(2014) (including § 11377 as a “lesser included offense[]” of

§ 11379).

Ruiz-Vidal was charged with sale of methamphetamine

under California Health and Safety Code § 11379(a) but

pleaded to—and was convicted of—a “lesser

included/reasonably related offense” to the charge under

§ 11377. He also admitted the factual basis to Count 1, which

included a charge that Ruiz-Vidal “possessed . . .

methamphetamine.” One cannot sell methamphetamine

without possessing it, so possession of methamphetamine is

a “necessarily included lesser offense within the charged

violation.” People v. Smith, 303 P.3d 368, 375 (Cal. 2013)

(internal quotation marks omitted). Thus, even based only on

the limited documents we’re allowed to review, it’s clear that

Ruiz-Vidal pleaded to possession of methamphetamine.
RUIZ-VIDAL V. LYNCH 9

The dissent concedes there’s no reasonable dispute that

Ruiz-Vidal “actually possessed methamphetamine, as

opposed to a drug that is not punishable under federal law,”

but nonetheless argues that we cannot know whether he was

“convicted of possessing methamphetamine,” as opposed to

some other drug. Dissent at 11. However, because

possession of each different drug under California Health and

Safety Code § 11377(a) constitutes an entirely separate

offense, Coronado, 759 F.3d at 985 (9th Cir. 2014), the

indictment charged him with the specific offense of sale of

methamphetamine, not sale of a controlled substance. A

conviction for possession of any other drug couldn’t be a

lesser included offense to sale of methamphetamine. The

only way a conviction for “possession of a controlled

substance” can be a lesser included offense to the crime of

“sale of methamphetamine” is if the drug the defendant is

convicted of possessing is methamphetamine. Hence, so long

as there is clear and convincing evidence that Ruiz-Vidal’s

crime of conviction was a lesser included offense to Count 1,

we can conclude he was convicted of possessing

methamphetamine.

The dissent characterizes our holding as “a new

exception” to the general “rule” that “when the record of

conviction comprises only the indictment and the judgment,

the judgment must contain the critical phrase ‘as charged in

the Information’” or otherwise “unambiguously specif[y] that

Defendant pleaded guilty to a specific count.” Dissent at

12–13 (emphasis added and omitted) (internal quotation

marks omitted). But, the record of conviction here comprises

more than just the indictment and judgment. In United States

v. Vidal, there was no “transcript of the plea colloquy or any

other memorialization of the factual basis for [the] plea,”

504 F.3d 1072, 1090 (9th Cir. 2007). Here, we have the
10 RUIZ-VIDAL V. LYNCH

transcript of a plea colloquy that gives us a clear way to

“connect the references to methamphetamine in the charging

document with the conviction under Cal. Health & Safety

Code § 11377(a).” Ruiz-Vidal, 473 F.3d at 1079. During the

colloquy, the judge specifically asked Ruiz-Vidal whether

there was a factual basis for a conviction under the possession

offense “lesser included to count 1.” Ruiz-Vidal had ample

opportunity to object to that characterization, but failed to do

so. The only difference between this case and the numerous

cases in which we have relied on the factual basis stipulated

to during a plea colloquy is that the judge here didn’t use the

word “methamphetamine.” But that’s irrelevant because, as

we have shown, a possession conviction that is a lesser

included offense to sale of methamphetamine can only be for

possession of methamphetamine.

Finally, Ruiz-Vidal relies on an unpublished BIA opinion

and Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir.

2006), to argue that we can’t rely on the record to determine

that his plea to a lesser included offense was for

methamphetamine possession. But in Cisneros-Perez we

concluded that the judgment record didn’t establish that

Cisneros-Perez “necessarily pleaded no contest to the

allegations in the original complaint” because “[i]t is not

stated in any of the cognizable documents that the conviction

for violating [the lesser included offense] stems from the

same incident as the charges in the criminal complaint.” Id.

at 393 (emphasis added). Here, the cognizable documents

demonstrate that Ruiz-Vidal’s plea to the lesser included of

Count 1 derives from the same incident as the Information,

which explicitly referenced methamphetamine. Ruiz-Vidal’s

record of conviction contains what Cisneros-Perez’s record

of conviction lacked—a clear connection between the plea

and the facts alleged in the charging document.
RUIZ-VIDAL V. LYNCH 11

* * *

Because there is clear and convincing evidence in the

documents permissible for review that Ruiz-Vidal pleaded

to—and was convicted of—possession of methamphetamine,

he is removable as an aggravated felon.

PETITION DENIED.

REINHARDT, Circuit Judge, dissenting:

Petitioner was charged with sale of a controlled substance

— a substance that the state alleged in the information was

methamphetamine. He pled no contest to a lesser included

offense — possession of a controlled substance. Petitioner

stipulated that there was a factual basis for his plea, but

explained nothing further regarding the offense. The question

in this case is not whether Petitioner actually possessed

methamphetamine, as opposed to a drug that is not punishable

under federal law. If that were the question, this case would

be straightforward, as “the record does not contain any

serious suggestion that [Petitioner possessed] any substance

otherthan [methamphetamine].” Medina-Lara v. Holder, 771

F.3d 1106, 1115 (9th Cir. 2014).

The question instead, however, is whether the record

provides clear, unequivocal, and convincing evidence that

Petitioner was convicted of possessing methamphetamine. 

See Carachuri-Rosendo v. Holder, 560 U.S. 563, 576 (2010)

(“The text [of the Immigration and Nationality Act] thus

indicates that we are to look to the conviction itself as our

starting place, not to what might have or could have been
12 RUIZ-VIDAL V. LYNCH

charged.”). In answering that question, “whether [Petitioner]

actually possessed . . . [methamphetamine] ‘makes no

difference.’” Medina-Lara, 771 F.3d at 1115 (quoting

Descamps v. United States, 133 S. Ct. 2276, 2286 (2013)). 

Rather, our limited task is to determine whether Petitioner’s

plea to possession of a controlled substance, as a lesser

included offense to sale of methamphetamine, necessarily

constitutes a conviction for possession of methamphetamine.

Here, the specification of methamphetamine occurs only

in the allegations contained in a count of the information to

which Petitioner did not plead guilty. In fact, the plea was

made to an entirely different statute not even mentioned in

the information. In United States v. Vidal, 504 F.3d 1072

(9th Cir. 2007) (en banc), we held that in order to allow us to

infer that a defendant was convicted of the allegations in the

information, “when the record of conviction comprises only

the indictment and the judgment, the judgment must contain

the critical phrase ‘as charged in the Information.’” Id. at

1087 (emphasis added) (citation omitted). In other words,

Vidal made clear that a defendant is not convicted of the

allegations unless he pleads guilty “as charged in the

Information.” We have, in recent cases, made an exception

to this rule in one situation, and one situation only: “[w]here

. . . the abstract of judgment unambiguously specifies that

Defendant pleaded guilty to a specific count.” United States

v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014). We

have not considered the allegations in the information when

the defendant “pled guilty to an offense different from the one

charged in the information.”1 Martinez-Perez v. Gonzales,

 

1 The cases cited by the majority support this statement. The majority,

for example, cites Cabantac v. Holder, 736 F.3d 787 (9th Cir. 2013) (per

curiam), United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012), and
RUIZ-VIDAL V. LYNCH 13

417 F.3d 1022, 1029 (9th Cir. 2005), abrogated on other

grounds by United States v. Snellenberger, 548 F.3d 699 (9th

Cir. 2008) (en banc) (per curiam); see also Alvarado v.

Holder, 759 F.3d 1121, 1131 (9th Cir. 2014); Cisneros-Perez

v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006). This case

obviously does not fall within the one exception we have

created; rather, it obviously does fall within the class of cases

in which the defendant pled guilty to a different offense than

the one charged, and in which we consequently refused to

review the allegations in the charging document when

applying the modified categorical approach.

The majority opinion, however, adopts a new exception

— for certain cases in which the defendant did not plead

guilty to the offense charged in the indictment, but to a

different statutory offense — an offense that constituted a

lesser included offense to a crime that was charged in the

information. It holds, in short, that because Petitioner was

charged with selling a controlled substance, specified as

methamphetamine in the information, and he pled no contest

in his plea colloquy to a different criminal charge — the

lesser included offense of possession of a controlled

United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012). All of

those cases involved circumstances in which we considered the conduct

alleged in a count of an indictment specifically because the defendant pled

guilty to that particular count — not some other, related offense. See

Cabantac, 736 F.3d at 793–94; Leal-Vega, 680 F.3d at 1168; ValdavinosTorres, 704 F.3d at 688;see also Torre-Jimenez, 771 F.3d at 1168 (listing

Cabantac, Leal-Vega, andValdavinos-Torres as cases that support the rule

that “[w]here the minute order or other equallyreliable document specifies

that a defendant pleaded guilty to a particular count of a criminal

complaint, the court may consider the facts alleged in the complaint”

(citation omitted) (internal quotation marks omitted)).
14 RUIZ-VIDAL V. LYNCH

substance — the controlled substance he pled no contest to

possessing was necessarily methamphetamine.2

The majority’s adoption of a new exception to Vidal for

pleas to lesser included offenses as memorialized in a plea

colloquy is unwarranted and unwise. Petitioner is removable

only if he was “convicted” of a controlled substances offense

as defined by federal law. 8 U.S.C. § 1227(a)(2)(B)(I). 

Therefore, as explained above, we must “look to the

conviction itself as our starting place, not to what might have

or could have been charged.” Carachuri-Rosendo, 560 U.S.

at 576. When a defendant pleads guilty to a lesser included

offense, however, he does “not plead guilty to, and therefore

[is] not actually convicted of, the . . . charge contained in the

indictment.” United States v. Bernal-Aveja, 414 F.3d 625,

627 (6th Cir. 2005). In such a case, “the indictment alone is

insufficient to meet the government’s burden of proving that

[Petitioner] was previously convicted of a [controlled

substances offense].” Id. (emphasis added). Moreover, the

2 The majority objects to my characterization of its opinion as a new

exception to Vidal. It argues that Vidal does not control because, whereas

in Vidal there was no “memorialization of the factual basis for [the] plea,”

Vidal, 504 F.3d at 1090, in this case there was such a memorialization in

the plea colloquy. The majority is incorrect. The plea colloquy here does

not memorialize the factual basis for the plea; it reveals only that there

was a factual basis for the plea, and that the plea was to the lesser included

offense to the one charged. It does not include an admission that the drug

Petitioner pled no contest to possessing was methamphetamine. Indeed,

“methamphetamine” was not mentioned during the entirety of the plea

colloquy. Thus, unlike in the “numerous cases in which we have relied on

the factual basis stipulated to during a plea colloquy,” Maj. Op. at 10, here

the plea colloquy alone is insufficient to connect Petitioner’s plea to a drug

he would be removable for possessing. Recognizing this fact, the

government relies on the facts alleged in the charging document in

attempting to carry its burden. In that circumstance, Vidal controls.
RUIZ-VIDAL V. LYNCH 15

majority’s new exception dispenses with a simple rule — one

that limits our review of an indictment to cases in which the

defendant pled guilty “as charged in the information” or to a

specific count in the information. Instead, it forces us into the

often difficult task of reviewing what may well be nearimpenetrable or highly ambiguous state case law on lesser

included offenses in order to determine which of the

allegations in the charging document necessarily constitute

the factual basis for the lesser crime. This task, as the present

case demonstrates, is likely to result in considerable

confusion and the faulty or erroneous application of state

law,3as well as a holding that is directly contrary to the spirit

3 The complexity and uncertainty of that task is well illustrated here. 

Although Petitioner pled no contest to the lesser included offense to sale

of a controlled substance, the offense to which he pled no contest —

possession of a controlled substance — is not a lesser included offense to

the crime charged — sale of a controlled substance — under at least one

of the tests used by California courts. Under California’s elements test,

“possession of a controlled substance cannot be a necessarily lesser

included offense ofselling or offering to sell . . . because the former crime

contains elements a sales offense does not: knowing possession of a usable

quantity.” People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct.

App. 1994); see also Judicial Council of California Criminal Jury

Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the

particular drug alleged in the information is not relevant to determining a

lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826,

828–29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the

“specific language of the accusatory pleading” must include all of the

elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668

(Cal. Ct. App. 1996). In this case, the first count in the accusatory

pleading — the count to which Petitioner pled no contest to the lesser

included offense — does not include any specific language concerning

possession of methamphetamine; it merely repeats the language in the sale

statute. There is an excess clause as to count one including the allegation

that Petitioner “possessed for sale/sold . . . methamphetamine,” but that

allegation could be satisfied by Petitioner selling methamphetamine

without possessing it for sale. In short, rather than clear, unequivocal, and
16 RUIZ-VIDAL V. LYNCH

and purpose, if not the text, of the rule our en banc court

adopted only a short time ago.

Even if the majority’s new rule were consistent with our

precedent, I would nevertheless not adopt the additional

exception to Vidal that it creates — an exception for certain

cases in which the defendant pleads guilty to a different

offense than the one charged. Indeed, I would adopt no more

exceptions to Vidal than the one our court has already made

for pleas to a specific count in the information. The primary

benefit to the rule we announced in Vidal was that it ensured

to the greatest extent possible that defendants who might face

deportation as the result of pleading guilty to a criminal

charge would know with reasonable certainty whether their

plea could have that consequence. Following Vidal, we

refused to look to the factual allegations in the charging

document unless the defendant explicitly pled guilty to those

factual allegations — indeed, pled guilty “as charged in the

information.” Although I would not have created an

exception to Vidal in any case, at least until now we have

done so only when the defendant pled guilty to a specific

count in the charging document, thus directly connecting the

defendant’s plea to the factual allegations in that document. 

See Medina-Lara, 771 F.3d at 1113. When a defendant

pleads guilty to a different offense than the one charged,

however, we have no assurance that he knowingly pled guilty

to the particular allegation in the charging document that

triggers his eligibility for deportation.

convincing evidence that Petitioner pled no contest to possession of

methamphetamine, the record in this case reveals ambiguity and confusion

regarding the meaning of Petitioner’s plea to a lesser included offense.
RUIZ-VIDAL V. LYNCH 17

It is vitally important that criminal defendants —

particularly those who may face removal from this country as

a result of their plea — “know the consequences of the

decisions they make in crafting the plea agreement and other

documents.” Cabantac v. Holder, 736 F.3d 787, 791 (9th Cir.

2013) (Murguia, J., dissenting from the denial of rehearing en

banc). As our court adopts new exceptions to Vidal,

however, we increasingly “risk[] depriving criminal

defendants who pled guilty in reliance on Vidal [or other

cases in this area of law] of the benefit of their plea.” Id. at

792. Indeed, “even the most well advised defendant,

negotiating a plea with the intention of avoiding adverse

immigration consequences, could end up being deprived [of]

the benefit of that negotiation if we ignore our own precedent

and change the rules of the game after it has already been

played.” Id.

This case is such an example. Prior to this case, we had

never reviewed the allegations in a charging document when

the defendant “pled guilty to an offense different from the one

charged in the information.” Martinez-Perez, 417 F.3d at

1029. In fact, we abstained from doing so in a 2007 case

involving the very petitioner in this case — Jose Reyes

Alberto Ruiz-Vidal — in which the charges were identical to

those in this case (including the specification of

methamphetamine in the information), and the offense to

which he pled guilty was identical to the one in this case

(possession of a controlled substance, with no specification

of the particular drug). See Ruiz-Vidal v. Gonzales, 473 F.3d

1072, 1074–75 (9th Cir. 2007). We held that the petitioner

was not removable for his offense precisely because he “did

not plead guilty to an offense that was charged in the

information” and, as a result, “there [was] simply no way for

us to connect the references to methamphetamine in the
18 RUIZ-VIDAL V. LYNCH

charging document with the conviction under Cal. Health &

Safety Code § 11377(a).” Id. at 1079.

It is, therefore, no surprise that in this case Petitioner

carefully avoided any mention of methamphetamine during

the plea colloquy and deliberately pled no contest to a

different offense than the ones charged in the information. 

His prior experience had demonstrated that as long as he did

exactly that, he could not be removed for his conviction. See

I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001) (“[A]lien

defendants considering whether to enter into a plea agreement

are acutely aware of the immigration consequences of their

convictions.”). By adopting a new exception to Vidal,

however, the majority disregards Petitioner’s reasonable

reliance on the law of our circuit — indeed, law from which

he had directly benefitted in an earlier case. Even worse, it

disregards Petitioner’s decision to “waive several of [his]

constitutional rights (including the right to a trial) and grant

the government numerous ‘tangible benefits, such as

promptly imposed punishment without the expenditure of

prosecutorial resources,’” principally in exchange for the

immigration benefits he reasonablybelieved he would receive

as a result of his plea. Id. (quoting Newton v. Rumery,

480 U.S. 386, 393 n.3 (1987)).

The majority’s decision is wrong and unjust. By adopting

a new exception to Vidal and applying it in this case, the

majority opinion effectively “attach[es] new legal

consequences to past decisions,” and thereby “disrupt[s]

settled expectations and actions taken in reliance on them.” 

Magana-Pizano v. I.N.S., 200 F.3d 603, 613 (9th Cir. 1999)

(quoting Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.

1997)) (internal quotation marks omitted). To avoid the

inevitable, unjust consequences of evisceratingVidal through
RUIZ-VIDAL V. LYNCH 19

creeping exceptions and of undermining the certainty of

circuit law, I would cease our practice of creating new

exceptions whenever we feel like doing so and in any event

would not utilize that insidious practice in a case in which a

defendant may suffer extremely severe consequences as a

result of relying on our law as it was at the time he waived his

constitutional rights. I dissent.