Generic California Law Divides 9th Circuit Again

     (CN) – A dispute flared up in the 9th Circuit over the process for deciding whether to deport noncitizens convicted of state crimes.
     A three-judge panel that included Chief Judge Alex Kozinski denied an en banc hearing Friday to Randy Cabantac, a citizen of the Philippines who was convicted of a “controlled substance offense” under California’s Health & Safety Code.
     The denial prompted Judge Mary Murguia to write in dissent that the allegedly messy state of the circuit’s rules for applying the “modified categorical approach” when reviewing removal orders has created a “real risk that criminal defendants will be deprived of the intended benefit of their plea.”
     Appellate judges use the modified categorical approach when a state law is overbroad or contains elements not included in a similar federal law.
     The issue went before the Supreme Court just over a month ago in Descamps v. United States. One justice warned, however, that the holding will force revisions among what is “likely a large number of” state criminal statutes to ensure that they meet the federal requirements.
     In Cabantac’s case, the panel applied the modified categorical approach because California’s law prohibits possession of substances not mentioned in the federal Controlled Substances Act. The judges found him removable under federal law because an abstract of his judgment recorded that he had pleaded guilty to possession of methamphetamine in violation Section 11377(a) of the California Health & Safety Code. Cabantac maintained that he pleaded only to possession of a controlled substance.
     “If Cabantac in fact pleaded only to the generalized offense, he should’ve asked the state court to amend the abstract of judgment at an earlier stage of the proceedings,” the panel said in denying a review last August.
     When “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,” the panel found.
     But Judge Murguia, who was joined in her dissent by seven other judges, argued that the panel’s ruling, and the subsequent refusal to reconsider the issue, disregarded the 9th Circuit’s 2007 ruling, United States v. Vidal. That precedent requires a judgment to contain the phrase “as charged in the information” if the record of conviction includes only the indictment and the judgment, as it was in Cabantac’s case, Murguia wrote.
     “I fear that the panel has created an intra-circuit split that will inevitably require an en banc panel to resolve,” she added. “I would have reheard this case en banc to avoid creating such a split in the first place.”
     Murguia argued that the panel’s refusal to reconsider the case would end up “muddying the waters in this area of already confusing law,” and warned that it could have real-world consequences for criminal defendants.
     “The current approach of some panels, which is to distinguish Vidal beyond recognition, or to simply ignore it as this panel does, risks depriving criminal defendants who pled guilty in reliance on Vidal of the benefit of their plea,” she wrote. “As it stands, Vidal is our own Schrödinger’s cat: dead and alive at the same time.”
     Murgia noted in a footnote that the “court has not yet considered the impact of Descamps on our prior analysis of § 11377(a).”

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