F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E R E Y E S R

U I Z -V I D A L , P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 11-73433

Ag ency No. A034-639-824

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted J anuary 6, 2014—Pasadena, California

F iled J une 17, 2015

B efore: Stephen Reinhardt, Alex Koz inski

a nd Richard R. Clifton, Circuit J udg es.

Opinion by

J udg e Koz inski; Dissent by

J udg e ReinhardtR U I Z -V I D A L V

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N C H 2

SUMMARY *

Im m igration

The p anel denied J ose R ey e s Alberto Ruiz -Vidal’s petition fo r r e v iew of the B oard of I mmig r ation Appeals’ decision finding him r emovable because he was convicted o f possessing a control l e d substance which could be identified as methamphetamine.

The panel held that Ruiz -Vidal w as remo v a b l e as an ag g r ava t e d felon due to his no contest plea to simple possession u nder California H ealth & Safety Code § 11377(a), a lesser included o f f e n s e to Count 1 of the I nformation, sale o f methamphetamine i n violation o f CHS § 11379(a). A pply ing the modified categ orical a pproach, the panel held that clear and convincing evidence i n documents permissible for review established that Ruiz -Vidal pleaded to and was convicted of possession of methamphetamine.

Dissenting

, J udg e Reinhardt would ask r ather whether the record provided clear, unequivocal, a nd c onvincing evidence
t h a t R u i z

- V i d a l w a s c o n v i c t e d o f p o s s e s s i n g methamphetamine, and would determine whether his plea to possession of a controlled substance, as a lesser included offense to sale of metham p h e tamine, necessarily constitutes

a convict i o n f

or possession o f methamphetamine. J udg e Reinhardt wrote that the majority ’s adoption o f a new

e x c ep t ion to United States v. Vidal

, 504 F .3d 1072 (9th Cir

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R U I Z -V I D A L V

. L Y

N C H 3

2007) (en banc), for p l eas to lesser included offenses a s memorializ ed in a plea colloquy is unwarranted and unwise.

COUNSEL

Christopher G

. Clark (ar g u e d ), Catherine R. Holmes a nd Greg ory L

. Shiferman, B oston, Massachusetts, for Petitioner.

Stuart F

. Delery

, Principal Deput y Assistant Attorney General, Richard M. E v ans a n d Mary J ane Candaux

, Assistant Directors, Michael C. Hey se (arg ued) and V irg inia L um, Attorney s, United States Department of J ustice, C i v il Division, W ashing ton, D.C., for Respondent.

OP INION

KOZ I NSKI , Circuit J udg e:

J ose Rey es Alberto Rui z

- V i d a l, a native and citiz en o f Mex ico, has lived in the United States since Aug ust 1976 as

a lawful permanent resident, but he hasn’t behaved himself. Among other transg ressions, h e ’s been charg ed with methamphetamine-related crimes at least twice before and, a s

a result, has repeatedly faced deportation proceeding s. W e’re tasked with reviewing h i s latest dalliance. W e consider whether he is removable due to his no contest plea to a lesser i n c luded offense when we apply the modified categ ori c al approach.R U I Z -V I D A L V

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N C H 4

I.

I n 2009, California filed an I nformation charg ing Ruiz

Vidal with sale and po s session for sale of a controlled

s u b s t a n c e , w h i c h t h e I n f o r m a t i o n i d e n t i f

i e d a s methamphetamine. Ruiz -Vidal pleaded no contest to simple possession—a lesser included offense of the sale charg e. He

was sentenced to time served and five y ears felony probation.

The D epartment of Homeland Security served Ruiz -Vidal with a Notice t o A ppear, and a n I mmig ration J udg e

c oncluded that Ruiz -Vidal w as removable because he w a s convicted of “a controlled subst a n c e o ffense which can be identified as methamphetamine.” H e a p pealed to the B oard of I mmig ration Appeals, which a g reed w ith the I mmig r ation J udg e

. W e review Ruiz -Vida l ’s p e tition to vacate the removal order.

II.

An a lien is removable if the g o vernment proves by clear and convincing e v i d ence that he’s b een convicted of an ag g r avated felony

, which includes co n v ictions for o ffenses involving a c ontrolled 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). W e review whether R u i z

- V i d al was convicted of a controlled substance offense d e n o v o

. Cabantac v. H older

, 736 F

. 3d 7 87, 792 (9th Cir. 2012) (per c uriam). To determine whether an a lien ’ s o ffense is an ag g ravated felony

, we compare the element s o f the statute of conviction to the definition of ag g r avated felony under federal law. See Taylor

v. United States , 495 U.S. 575, 602 (1990).R U I Z -V I D A L V

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N C H 5

California Health a n d S afety Code § 11377(a) is “a divisible statute, and thus we apply the modified categ orical approach” to a

naly z e Ruiz -Vidal’s conviction and determine wh e t h e r it involved a substance included in the CSA. Coronado v. Holder

, No. 11-72121, 2014 W L 983621, a t *1 (9th Cir. Mar. 14, 2014); see also Ruiz-Vidal v. G onzales

, 473 F .3d 1072, 1078 (9th Cir. 2007) ( y ep, that’s our g uy ). Section 11377(a) lists alternative p otential offense elements, “some of which a

re contained in the CSA and some of which are not.” Coronado , 2014 W L 983621, at *4. F or ex ample, chorionic g o nadotropin isn’t on Schedule I I I of the CSA, but is o n C a l i fornia’s Schedule I I I

. Id. at *3 n.1; see also Cal. Health & Safety Code § 1 1 0 56(f)(32). W here 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. W hen apply ing the modified categ o rical approach, we’re restr i ct ed to “consult[ ing ] a limited class o f documents” to determine whether the c ri m e q u a lifies as an ag g r avated felony

. Id. I n this case, documents we may consider include Ruiz -Vidal’s p lea colloq u y , the charg ing information and the clerk’s minute order. See id. at 2283–84; United States v. Leal-Vega

, 680 F .3d 1160, 1 1 6 8 ( 9th Cir. 2012). After we d e t e rmine the elements of the crime o f conviction, w e c o mpare them “with the elements of the
g eneric c rime,” Descamps
, 1 33 S. Ct. at 2281, as we would under the categ orical approach.

Ruiz -Vidal arg u es that his record of convi c tion d oesn’t identify the controlled sub s t an ce to which h e pleaded—that is, t h a t w e can’t tell from looking at the limited class o f acceptable documents whet h e r he p leaded to possession o f methamphetamine or some other substance, say c horionicR U I Z -V I D A L V

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N C H 6

g onadotropin. B ut Count 1 of the I nformation charg ed Ruiz

Vidal w ith u nlawful “SAL E OF A CONTROL L ED SUB STANCE, a violation o f s e c t i o n 11379(a) o f the HEAL T H AND S AF E TY CODE of California

. . . to wit: methamphetamine .” Count 1 a lso includes an alleg ation that Ruiz -Vidal “possessed for s a l e/sold 5 7 g rams or more of a substance containing

methamphetamine.”

At his plea colloquy

, Ruiz

- Vida l c onfirmed that he was pleading n o contest to the lesser included offense o f Count 1 of the I nformation, not just to an untethered v i o lation o f § 11377(a) (possession). T h e court asked for R u iz -Vidal’s plea “to the lesser included to Count 1 , a violation of Health and Safety Code S e ction 11377(a),” and Ruiz -Vidal responded “[ n] o contest.” The c ourt then made a findi n g o f
g uilt, and the g overnment indicated that the “ remainder of the complaint would be dismissed.”

The court’s minute order—another document that’s permissible to review u nder the modified categ orical

a pproach, see Leal-Vega

, 6 80 F .3d at 1 168—confirms t h at Ruiz -Vidal pleaded to the lesser included offense of Count 1. I t stat es that Ruiz -Vidal e n tered a plea to the “ lesser included/reasonably related offense” of “Count 1 ” a nd indicates that Ruiz

- V idal stipulated that a f ac tual basis

ex isted for t h e plea. W here a minute order specifies that a defendant pleaded to a specific “count of the cri m i n al complaint or indictment, we can consider the facts a lleg ed in that count.” Cabantac , 736 F .3d at 794.

And w hen a defendant r eferences a specific count during his plea colloquy , we can also consider the drug listed in the charg ing document. See id. ; see also U n i t e d States v. Snellenberger

, 548 F .3d 699, 701–02 (9th Cir. 2008) (enR U I Z -V I D A L V

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N C H 7

banc) (per curiam). F urthermore, a plea referencing a “to wit” count in a c harg ing document s u f f ices to establish the controlled substance for removal purposes. Leal-Vega

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

, 7 0 4 F

. 3 d 679, 687–88 ( 9th Cir. 2012). I n Leal-Vega

, f o r

ex a mple, the defendant pleaded g uilty to “Count 1 ” of the complaint, w hich stated that he possessed “for purpose of sale

a controlled substance, to wit, TAR HEROI N.” 680 F

. 3d at 1168 ( emphasis omitted). W e found the conviction to b e for

a drug trafficking offense because the minute order stated that the c onviction was f

or Count 1. Id. at 1168–69. Similarly

, in Valdavinos-Torres

, w e h e l d that a defendant’s conviction was

an ag g ravated felony for purposes o f removal after reviewing a plea form indicating that he’d “pled g u ilty to Count Two,” which the complaint described a s possession for “sale [ o f] a controlled substance, to w it, Methamphetamine.” 7 04 F .3d
at 687–88. T hus, Ruiz -Vidal’s pl ea

— w hich r eferences a specific count in the I nformation—and th e I nformation, which references a specific controlled substance, provide clear and convincing evidence that Ruiz

- V idal committed a removable offense.

2. Ruiz -Vidal further arg ues that we can’t conside r t h e reference to methamphetamin e in the I n formation because, b y pleading no c o n t est to a lesser included offense, he “pled to

an offense different f

r om the one charg ed.” I n essence, he
arg ues that posses s ion of another controlled substance, say chorionic g onadotropin, could b e a lesser included offense o f the sale of methamphetamine charg e.

B u t, in addition to asking us to overlo o k his plea’s specific reference to Count 1, Ruiz -Vidal ig nores the meaning of “lesser included o ffense.” Althoug h it “is ancient doctrine

. . . that a defendant cannot be h e l d to answer a charg e notR U I Z -V I D A L V

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N C H 8

contained in the indictment,” our criminal justice sy stem has long permitt e d a defendant to be f ound “g uilty of any lesser offense n ecessarily included in the offense c harg ed.” Schmuck v. United States
, 4 8 9 U .S. 7 05, 717–18 (1989) (emphasis added). Californ i a d e f ines a lesser included offense as: “[ w ] here a

n offense cannot be committed without necessarily committing a nother offens e , the latter is a necessarily incl u d e d offense.” People v. Tinajero
, 24 Cal. Rptr. 2d 2 98, 300 (Cal. Ct. App. 1993). Californ ia courts determine w hether an offense is n ecessarily included b y reviewing whether the f

acts actually alleg ed in the accusatory pleading include all the elements of the lesser offense, so that the g reater offense cannot be committed w ithout also committing the lesser offense. P e ople v. Birks

, 9 60 P.2d 1073, 1078 (Cal. 1998); see also Tinajero
, 24 Cal. Rptr. 2d at 301 (“B o th possession for sale, and simple p o s s ession, a re lesser included offenses of [ ] sale

. . . .”); J udicial Council o f California Criminal J ury I n structions, 2 CAL CRI M No. 2300 (2014) (including § 1 1 377 as a “lesser included offense[ ] ” o f § 11379).

Ruiz -Vidal was charg ed with sale o f methamphetamine under California Heal t h and Safety Code § 1 1 379(a) but
p l e a d e d t o

— a n d w a s c o n v i c t e d o f

— a “ l e s s e r i n c l u ded/reasonably related offense” to the charge under § 11377. He also admitted the factual basis to Count 1
, which included a charg e that Ruiz -Vidal “possessed

. . . methamphetamine.” One c a nnot sell methamphetamine without p ossessing it, so possession of methamphetamine is

a “necessarily included lesser offense within the charg ed violat i o n .” People v

. Smith

, 303 P.3d 368, 375 (Cal. 2 013) (internal quotation marks omitted). Thus, even based only on the limited documents w e’re allowed to review, it’s clear that Ruiz -Vidal pleaded to possession of methamphetamine.R U I Z -V I D A L V

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N C H 9

The dis s e n t concedes there’s no reasonable dispute that Ruiz -Vidal “actually possessed m e thamphetamine, a s opposed t o a d r ug that is not punishable under federal law,” but nonetheless arg

ues that we cannot know whether he was

“ convicted of p ossessing methamphetamine,” as opposed to

some other drug

. Dissent at 11. However, b ec a u s e possession of each different drug under California Health a nd Safety Code § 11377(a) constitutes an enti r e l y separate offense, Coronado

, 759 F .3d a t 985 ( 9th Cir. 2014), the indictment c h a r ge d him with the specific offense of sale o f

me t h a m p h etamine
, not sale of a controlled substance. A conviction for possession of an y other drug couldn’t be a lesser included offen s e t o sale of methamphetamine. The only way a c onviction f or “possession of a controlled

s u b stance” can be a lesser included offense to the c ri m e o f “sale of methamphetamine” is if the d r u g the defendant is convicted of possessing is methamphetamine. Hence, so long

as there is c lear and convincing e vidence tha t Ruiz -Vidal’s crime of conviction was a lesser included offense to Count 1,

we can conclude he was convicted of possessi n g methamphetamine.

The d issent characteriz es our hold i n g as “a new

ex c e ption” to the g e neral “rule” that “when t he record o f conviction c omprises only the ind i c t m e nt and the judgment

, the judg ment must contain the critical phrase ‘as charg ed in the I nformation’” or otherwise “ u nambig uously specif[ y ] that Defendant pleaded g uilty to a s p e c i f i c count.” Dissent at 12–13 (em p hasis added and omitted) (internal quotation marks omitted). B ut, the record of conviction here comprises

more than just the indictment and judg ment. I n United States

v. Vidal

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

o ther memorializ ation of the factual basis for [ the] plea,” 504 F .3d 1072, 1090 (9th Cir. 2007). Here, we have theR U I Z -V I D A L V

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N C H 10

t r a n script of a plea colloquy that g ives us a clear way t o “connect the references to methamphetamine in the charg ing document with the c onviction under Cal. Health & Safety Code § 11377(a).” Ruiz-Vidal

, 473 F .3d at 1079. During the colloquy

, the judg e spec ifically asked Ruiz -Vidal whether there w as a factual basis for a conviction under the possession offense “lesser inc l u d e d to count 1 .” Ruiz -Vidal had ample opportunity to object to that c h a r acteriz ation, but failed to do

so. The only

difference between this case and the numerous cases in w hich we h ave relied on the factual basis stipulated
to during a plea colloquy is that the judg e here didn’t use the word “methamphetamine.” B ut that’s irrelevant b ecause, a s

we have show n , a possession conviction that is a lesser included offense to sale o f methamphetamine can only be for possession of methamphetamine.

F inally

, Ruiz -Vidal relies on an unpublished B I A opinion and Cisneros-Perez v. Gonzales

, 465 F .3d 3 8 6 (9th Cir. 2006), to arg ue that we can’t rely on the record to determine th a t h i s plea to a lesser included offense was for methamphetamine pos s e ssion. B ut in Cisneros-Perez we concluded that the judg ment record didn’t establ i s h that Cisneros-Perez “necessarily pleaded n o c ontest to the alleg ations in the o rig inal complaint” because “[ i] t is not stated in any of the cog niz able documents that the conviction for violating [ the lesser includ ed offense] stems from the

same incident

as the charg e s in the criminal complaint.” Id.
at 393 (emphasis added). Here, the c og niz able documents demonstrate that Ruiz

- Vidal’s plea to the lesser included o f Count 1 derives from the sam e i n c i d ent as the I nformation, which ex plicitly r eferenced methamphetamine. Ruiz -Vidal’s record of conviction conta i n s w hat Cisneros-Perez ’s record of conviction lacked—a cl e ar c onnection between the plea and the facts alleg ed in the charg ing document.R U I Z -V I D A L V

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N C H 11

* * *

B e cause there is c l ea r and convincing e vidence in the documents permissible f

or review that Ruiz -Vidal p l e a d ed to—and w as convicted of—possession of methamphetamine, he is removable as an ag g ravated felon.

P ETITION DENIED.

REI NHARDT, Circuit J udg e, dissenting :

Petitioner was c harg ed with sale o f a c ontrolled substance

— a substa n c e t h a t the state alleg ed in the information was methamphetamine. He p led no contest to a lesser i n c luded offe n s e — possession of a controlled substance. Petitioner stipulated that there was a factual basis for his plea, but

ex p lained nothing further reg arding the offense. The question in this case is not whether Petitioner actually posses s ed methamphetamine, as opposed to a drug that is not punishable under federal law. I f that were the question, this c ase would be straig h tforward, as “the record does not contain any serious sug g estion that [ Petitioner p o s s e ssed] any substance

o t h e r t h a n [ methamphetamine] .” Medina-Lara v. H o l d e r , 7 7 1 F .3d 1106, 1115 (9th Cir. 2014).

The question instead, however, is whether the record provides clear, u nequivocal, and convincing evidence that Pe titioner was convicted of possessing methamphetamine. See Carachuri-Rosendo v. H older

, 560 U.S. 563, 576 (2010) (“The tex t [ of the I mmig r ation a nd Na tionality Act] thus indicates that we are to look to the conviction itself as our starting pl ac e , not to what mig ht have or c ould have beenR U I Z -V I D A L V

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N C H 12

charg ed.”). I n answering that question, “ whether [Petitioner] actually p ossessed

. . . [ metham p h e tamine] ‘ makes no difference.’” Medina-Lara

, 771 F .3d at 1115 (quoting Descamps v

. United Stat e s , 1 33 S. Ct. 2276, 2286 (2013)). Rather, our limited task is to determine whether Petitioner’s plea to p ossession of a co n t r o lled substance, a s a lesser inc l u d ed offense to sale o f methamphetamine, necessarily constitutes a conviction for possession of methamphetamine.

Here, the specification of methamphetamine occurs only in the alleg ations contained in a count of the in formation to which Petitioner did not plead g uilty

. I n fact, the plea was

m a de to an entirely different statute not even mentioned in the information. I n United States v. Vidal

, 5 0 4 F. 3d 1072 (9th Cir. 2007) (en banc), we held that in order to allow us to infer that a defendant was c onvicted of the alleg ations in the information, “ when the r e c ord of c o n viction comprises only the indictment and the judg ment, the judg ment must c ontain the critical phrase ‘ as charged in the Information

. ’” Id. at 1087 (emphasis added) ( citation omitted). I n o ther words, Vidal made clear that a d e f endant is not c o n v i c t ed of the alleg ations un l ess he p leads g uilty “as charg ed in the I nformation.” W e have, in r ecent c a s e s , made an ex c eption
to this r ule in o ne situation, and one situation only : “[ w] here

. . . the abstract of ju d gm e n t unambig uously specifies that Defendant pleaded g u ilty to a specific count.” United States

v. Torre-Jimenez
, 7 71 F

. 3d 1163, 1169 (9th Cir. 2014). W e have not consid e red the a lleg ations in the information when the d e fendant “pled g uilty to an offense different f rom the o ne charg ed in the information.” 1 Martinez-Perez v. G o n z a les

,

1 T h e cases cited b y th e m aj o rity su p p ort th is statem en t. T h e m aj o rity

, f o r ex am p le, cites Ca b a n ta c v. Ho ld er , 7 3 6 F.3 d 7 8 7 (9 th C ir. 2 0 1 3) (p er

cu riam ), U

n ited Sta t es v. Lea l-Veg a , 6 8 0 F.3 d 1 1 6 0 (9 th Cir. 2 0 1 2 ), an dR U I Z -V I D A L V

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N C H 13

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

tates v. Snellenberger

, 548 F .3d 699 (9th Cir. 2008) ( en ba nc) (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 c a s e

o b v i o u sly does not fall within the one ex ception we have created; rather, it obviously does fall within the class of cases in which the defendant pled g uilty to a different offense than the one c h a rg ed, and in which we consequently refused to review the allega t i o ns in the charg ing document when apply ing the modified categ orical approach.

T h e majority opinion, however, adopts a new ex c eption

— f or certain cases in w h i c h the defendant did n ot plead
g uilty to the offense charg ed in the indictment, but to a different statutory offense — an offense that const ituted a lesser included offense to a crime that w a s c h a r g ed in the i nformation. I t h olds, in short, that because Petitioner was charg ed with selling a controlled subs tance, specified a s methamphetamine in the information, and he pled no contest in his plea colloquy to a different crim i n a l c h arg e — the lesser included offense of possession of a controlled

Un ited Sta tes v. Va ld

a vin os-To rres , 7 0 4 F .3 d 67 9 (9 th Cir. 20 1 2 ). A ll of th o se cases in v o lv ed circu m stan ces i n w h ich w e co n sid ered t

h e co n d u ct alleg ed in a co u n t o f an in d ictm en t s p ecif ically b ecau se th e d ef

en d an t pled
g u ilty to th a t p a rticu la r co un t — n o t so m e o th er, related of f en se. S ee Ca b an t a c , 7 3 6 F.3 d at 7 9 3 –9 4 ; Lea l-Veg a , 6 8 0 F.3 d at 1 1 6 8 ; Va ld a vin o sTo rres , 70 4 F.3 d at 6 8 8 ; see a lso To rre-Jimen ez , 7 7 1 F .3 d at 1 1 6 8 (listin g Ca b an t a c , Lea l-Veg a , an d Va l

d a v i n o s

- T o r r e s a s cases th at su

p p o rt th e ru le th at “ [w ]h ere th e m in

u te o rd er o r o th er eq u ally reliab le d o cu m en t sp ecif ies
t h a t a d ef

en d an t p lea d

ed g uilty to a p a rticu la r co u nt o f a crimin a l

co mp la in t , th e co u r t m ay co n sid er th e f acts alleg ed in th e co m

p lain t” (citatio n o m itted ) (in tern al q u o t atio n m ark s o m i tted )).R U I Z -V I D A L V

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N C H 14

substance — the controlled substance he pled no contest to possessing was necessarily methamphetamine. 2

The majority ’s adoptio n of a new ex ception to Vidal for pleas to lesser included o ff enses a s memorializ ed in a plea colloquy is u nwarranted and unwise. Petitioner is r emovable only if he was “convicted” of a controlled substances offense

as def i n e d by federal law. 8 U.S.C. § 1227(a)(2)(B )(I ). Therefore, as ex plained above, we must “look t o the conviction itself as our starting place, not to what mig ht have

or could have b een charg ed.” Carachuri-Rosendo

, 560 U.S.
at 576. W hen a defend a nt pleads g uilty to a lesser included offense, however, h e does “not plead g uilty to, and therefore [ is] not actually convicted of, the

. . . c harg e contained in the indictment.” United S

tates v. Bernal-Aveja

, 4 1 4 F

. 3d 625, 627 (6th Cir. 2005). I n such a case, “the indictment alone is insufficient to meet the g overnment’s burden of proving that [ Petitioner] was previously convicted o f a [ controlled substances offense] .” Id. (emphasis added )

. Moreover, the

2 T h e m aj o rity o b

j ects to m

y ch aracterizatio n o f i t s o p i n io n as a n ew

ex cep tio n t o Vid

a l

. It arg u es th at Vid

a l d o es n o t co n tro l b ecau se, w h ereas in Vid al th ere w as n o “ m em o rializatio n o f th e f actu al b asis f

o r [th e] p lea,” Vid a l

, 50 4 F.3 d at 1 0 9 0
, i n th i s case th ere w as su ch a m em o rializatio n in th e p lea co llo q u

y

. T h e m aj o rity i s in co rrect. T h e p lea co llo q u y h ere d oes

n o t m em o rialize th e f

actu al b asis f

o r t h e p l ea; it rev eals o n ly th at th ere

w as a f actu al b asis f

o r th e p l ea, an d th at th e p lea w as to th e lesser in clu ded

o f f en se to th e o n e ch arg ed

. It d o es n o t in clu d e an ad m issio n t h at t h e d ru g P etitio n er p led n o co n t est to p o ssessin g w as m eth am p h etam in e. In d eed

,

“ m eth am p h etam in e” w as n o t m en tio n ed d u rin g th e en tirety o f th e p l ea

co llo q u y

. T h

u s, u n lik e in th e “ n

u m ero u s cases in w

h ich w e h av e relied on th e f actu al b asis stip u lated to d u rin g a p lea co llo q u y ,” Maj

. Op

. at 1 0
, h ere th e p lea co l lo q u y alo n e is i n su f f icien t to co n n ect P etitio n er’ s p lea to a d ru g h e w o u ld b e rem o v a b le f o r po ssessin g

. Reco g n izin g th i s f act, th e g o v ern m en t relies o n th e f acts alleg e d in th e ch arg in g d o cu m en t in
attem p tin g to carry its b u rd en . In th at circu m s t an ce, Vid a l co n tro ls.R U I Z -V I D A L V

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majority ’s new ex ception dispenses w ith a simple rule — o ne that limits our review of an indictment to cases in which the defendant pled g uilty “as charg ed in the information” or to a specific count in the information. I n stead, it forces us into the often difficult task of reviewing what may well be ne arimpenetrable or hig hly am big uous state case law on lesser included o ffenses in order to deter m i n e which of the alleg ations in the charg ing document necessarily constitute the factual basis for the lesser crime. This task, as the present

case demonstrates, is likely to result i n c onsiderable confusion and the faulty or erroneous applicati o n of state law, 3 as well as a holding that is d irectly contrary to the spirit

3 T h e co m

p lex i ty an d u

n certain ty o f th at task is w ell illu strated h ere. A lth o u g h P etitio n er p led n o co n t est to th e lesser in clu d ed o f f en se to sale

o f a co n tro lled su

b s tan ce, th e o f

f en se to w h ich h e p led n o c o n t e s t

— p o ssessio n of a co n tro l l ed su b stan ce — is n o t a lesser in clu d ed o f f en se to th e crim e ch arg ed — s ale o f a co n tro lled su b s tan ce — u n d er at least o n e

o f t h e t ests u s ed b y Calif

o rn ia co u rts. Un d er Calif o rn ia’ s elem en ts test,

“ po ssessio n o f a co n tro lled su b st a n c e c an n o t b e a n ecessarily lesser in clu d ed o f

f en s e o f s ellin g or o f

f erin g to sell

. . . b ecau se th e f o rm er crim e

co n tain s elem en ts a s ales o f f en se d o es n ot: k

n o w in g p o ssessio n of a u sab le
q u an tity .” P e o

p l e v. Pereg rin a-La rio s , 2 8 C al. Rp tr. 2d 31 6 (Cal. Ct. A p p. 1 99 4 ); see a lso J u dicial Co u n cil of C a l i fo rn ia Crim in al J u ry In stru ctio n s, 1 CA L CRIM No

. 2 3 0 0 (2 0 1 5). Mo reo v er, u n d er th at test th e p articu lar d ru g alleg ed in th e i n f o rm atio n is n o t relev an t to d eterm in in g a lesser i n clu d ed o f

f e n s e

. S ee Peo p l e v. S o sa , 1 4 8 Cal. Rp tr. 3 d 8 2 6
, 8 2 8

– 2 9 (Cal. Ct. A

p p

. 2 01 2 ). Un der th e accu sato ry p lead i n g t e st , th e

“ s p ecif ic lan g u ag e of t h e a ccu s ato ry plead in g ” m u st in clu d e all o f th e elem en ts o f th e lesser of

f en s e. Peo p le v. Mo ses , 5 0 Cal. R

p tr. 2d 6 6 5
, 6 6 8 (Cal

. C t

. Ap p

. 1 9 9 6 ). In th is case, th e f irst co u n t in th e accu sato ry p lead in g — th e co u n t to w h ich P e t itio n er p led n o co n test t o th e lesser in clu d ed o f

f en se — d o es n o t in clu d e an y sp ecif ic lan g u ag e co n cern in g p o ssessio n o f m eth am

p h etam in e; it m erely rep eats th e lan g u ag e in th e sale
statu te. T h ere is an ex cess clau s e as t o co u n t o n e in clu d i n g th e alleg atio n t h at P etitio n er “ p o ssessed f o r sale/so ld

. . . m eth am

p h etam in e,” b u t th at alleg atio n co u l d b e satisf ied b y P etitio n er sellin g m eth am p h etam in e

w ith o u t p o ssessin g it f

o r sale. In sh o rt, rath er t

h an clear, u n eq u i v ocal, an dR U I Z -V I D A L V

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and purpose, if not the tex t, o f the r u l e our en banc court adopted only a short time ag o.

Even if the majority ’s new rule w ere consistent w ith our
p r e cedent, I would n evertheless not a dopt the additio n al

ex c e ption to Vidal that i t creates — an ex ception for c ertain

cases in which the defenda n t p l eads g uilty to a different offense than the one charg ed. I ndeed, I would adopt no more

ex c e ptions to Vidal than the one our court has a lready 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 g reatest e x tent p ossible that d efendants who mig h t face deportation as the result of pleading g uilty t o a criminal charg e would know w ith r easonable certainty whether their plea could have tha t c onsequence. F ollowing Vidal

, we refused to look to the f actual alleg a tions i n the charg ing document unless the defendant ex plicitly pled g uilty to those factual alleg ations — indeed, pled g uilty “as charg e d in the information.” Althoug h I w ould not have c reated an

ex c e ption to Vidal in any case, at lea st until now we have done so only when the defendant pled g ui l t y t o a specific
count in the charg ing document, thus directly connecting the defendant’s plea to the fa c t ual a lleg a tions in that document. See M edina-Lar a , 7 71 F .3d at 1113. W hen a defendant pleads g uilty to a different offe n se than the one charg ed, however, we h ave no assurance that he knowing ly p led g uilty
to the particular alleg ation in t h e charg ing document that trig g ers his elig ibility

for deportation.

c o n v in cin g ev id en ce th at P etitio n er p led n o co n test to p o ssessio n o f

m eth am ph etam in e, th e reco rd in th is case rev eals am b ig u ity an d co n f

u sio n reg ard in g th e m ean in g o f P etitio n er’ s p lea to a lesser in clu d ed o f f en se.R U I Z -V I D A L V

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N C H 17

I t is vitally imp o r t a nt that criminal defendants

— particularly those who may face removal from this country a s

a result of their plea — “know the conseque nces of the decisions they make in crafting the p lea ag reement and other documents.” Cabantac v. Holder

, 736 F .3d 787, 7 91 (9th Cir. 2013) (Murg uia, J
., dissenting from the denial of rehearing en banc). As our court adopts new ex c e p t i o n s to Vidal

, however, we increasing ly “risk[ ] depriving criminal defendants who pled g uilty i n reliance on Vidal [ or other

cases in this area of law] of the benefit of their p lea.” Id. at 792. I n deed, “even the mos t w e l l advised defendant,
neg otiating a plea with the int e n t i o n o f avoiding adverse immig ration consequences, c ould end up being d eprived [ of] the b enefit of that n eg otiation if we ig nore our own p recedent and chang e the r

ules of the g ame after it h a s a lready been play ed.” Id.

This case is such an ex ample. Prior t o this c ase, we h ad

never reviewed the alleg a tions in a charg ing d ocument when the defendant “pled g uilty to an offense different f rom the o ne charg ed in the information.” M artinez-P erez , 417 F .3d at 1029. I n fact, we abstained from doing s o i n a 2007 case involvi n g t h e very petitioner in this case — J o se Rey e s Alberto Ruiz -Vidal — in which the c harg es were identical to those in this case (includi n g t he specification o f methamphetamine in the information), and the offense to which he p led g uilty was identi c a l to the one in this case (p o s session of a controlled substance, with no specification of the particular drug ). See Ruiz-Vidal v. Gonzales

, 473 F .3d 1072, 107 4

– 7 5 ( 9th Cir. 2007). W e h eld that the p etitioner

was not removable for his o ffense precisely because he “ did
not p lead g uilty to an offense that w as charg ed in the information” and, as a result, “there [was] simply no way for

us to connect the references to methamphetam ine in theR U I Z -V I D A L V

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charg ing d ocument with the conviction under Cal. Health & Safety Code § 11377(a).” Id. at 1079.

I t is, therefore, n o surprise that in this case Petiti o n e r carefully avoided a

ny menti o n o f methamphetamine during the plea colloquy and deliberate l y p l e d no contest to a different offense t h a n the ones charg ed in the information. His prior ex perience had demonstrated that as long as he did

ex a c tly that, he could not be removed for his conviction. See I.N.S. v. S

t. Cyr
, 533 U.S

. 289, 322 (2001) (“[ A] lien defendants c onsidering whether to enter into a p lea ag reement

are acutely aware of the immig r ation consequen c es of their convi ct i o n s .”). B y adopting a new ex ception to Vidal

, however, the majority di s r eg ards Petitioner’s reasonable reliance on the law of our circuit — indeed, law from which he had directly benefitted i n a n e arlier case. Even worse, it disreg ards Petitioner’s d ecision to “waive several of [ his] constitutional rig hts ( including the rig ht to a trial) and g rant the g o vernment numerous ‘ tang ible benefits, such a s promptly imposed punishment without the ex penditure of prosecutorial resources,’” principall y in ex chang e f or the immig ration benefits h e reasonab l y b e l i eved he would receive

a s a result o f his plea. Id. (quoting Newton v. Ru m e r y , 480 U.S. 386, 393 n.3 (1987)).

The majority ’s decision is w rong and unjust. B y adopting

a new ex ception to Vidal and ap ply ing it in this case, the

m a j o r i t y o p i n i o n effec t i v el y “ at t a c h [ e s ] n e w l e ga l
consequences t o past d e c isions,” and thereby “disrupt[ s] settled ex pectations a

nd actions taken in reliance o n them.” Magana-Pizano v. I

.N.S.
, 20 0 F .3d 603, 613 (9th Cir. 1 999) (quoting J

effries v. W

o o d

, 1 14 F .3d 1484, 1494 (9th Cir. 1997)) (internal quotatio n marks omitted). To avoid the inevitable, unjust consequences of eviscerating Vidal throug hR U I Z -V I D A L V

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creepin g e x c eptions and of undermining the certainty o f circuit law, I would cease our practice of creating new

e x ceptions whenever we feel like doing so and in a ny e v e n t would not utiliz e that insidious p ractice in a case in which a defendant may suffer ex tremely severe consequences as a result of relying on our law as it was at the time he waived his constitutional rig hts. I dissent.