The U.S. Court of Appeals for the Ninth Circuit held that an abstract of judgment can serve as the basis for determining whether an individual was convicted of a controlled substances offense. Cabantac v. Holder, Nos. 09-71336 & 12-71459, slip op. (9th Cir. Aug. 23, 2012) (Kozinski, O’Scannlain, and Bea, JJ.). This is a per curiam opinion.
This case involves an individual who was convicted of possession of a controlled substance, methamphetamine, in California. Cal. Health & Safety Code § 11377(a).
Cabantac argued that he was not convicted of possessing methamphetamine or any other drug specifically; rather, he contended, he pleaded to possession of a controlled substance generally. Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9630. This is an important distinction because, as the Ninth Circuit noted, “not all substances punishable under California Health & Safety Code § 11377(a) are defined in 21 U.S.C. § 802. Methamphetamine, however, is.”
In other words, the immigration judge can’t just assume that Cabantac’s state drug possession conviction constitutes a controlled substances offense for removal purposes. INA § 237(a)(2)(B)(i). Rather, the IJ must determine whether the drug that Cabantac was convicted of possessing is also defined as a “controlled substance” under the federal Controlled Substances Act that begins at 21 U.S.C. § 802. If it is, then the conviction constitutes a controlled substances offense under INA § 237(a)(2)(B)(i).
The Ninth Circuit had no trouble concluding that Cabantac was in fact convicted of possessing methamphetamine. First, the abstract of judgment produced by the state court indicates that he pleaded guilty to “‘possession of methamphetamine’.” Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9630.
Furthermore, the abstract of judgment indicates that Cabantac pleaded guilty to count one of the criminal complaint. Count one, in turn, alleges that he possessed methamphetamine. Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9632. Combined, the court held, this is sufficient to conclude that he was convicted of possessing methamphetamine: “We hold that where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.” Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9632.
Lastly, the court added that this conclusion was buttressed by Cabantac’s repeated confirmation during the plea colloquy that he was pleading guilty to count one, the count that alleges that he possessed methamphetamine. Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9633.
The bottom line is that the court seemed to think that Cabantac was trying to deny doing what he had already admitted to doing: possessing methamphetamine. If he disagreed with the factual allegations made in the complaint, than he should have addressed those during the criminal proceedings, the court explained. Cabantac, Nos. 09-71336 & 12-71459, slip op. at 9630. Doing so as a challenge to removal is simply too late.
This decision is just another reminder of the importance of fashioning the plea with the immigration consequences of conviction in mind. Criminal defense attorneys need to consider the facts to which their noncitizen clients are contemplating pleading and carefully advise defendants about the consequences of admitting certain allegations.
The court doesn’t say whether Cabantac is raising an ineffective assistance claim against his criminal defense attorney, but given that his attorney in this proceeding, Kara Hartzler of the Florence Immigrant and Refugee Rights Project, has literally written a book about Padilla-based ineffective assistance claims, I have to imagine Cabantac’s legal team has thoroughly explored that possibility.