Ryan Nalangan v. Eric Holder, Jr. , 599 F. App'x 712 ( 2015 )

FILED
NOT FOR PUBLICATION APR 07 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN ZAPANTA NALANGAN, No. 10-71123
Petitioner, Agency No. A098-250-473
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 11, 2015
San Francisco, California
Before: CALLAHAN, M. SMITH, and WATFORD, Circuit Judges.
1. Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), requires that we apply
the modified categorical approach to determine whether Ryan Nalangan’s
conviction under California Health & Safety Code § 11377(a) is a removable
offense. Id. at 981, 983.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 4
2. Under the modified categorical approach, the government has not met its
burden of proving by clear and convincing evidence that Nalangan was convicted
of possessing methamphetamine. See Medina-Lara v. Holder, 771 F.3d 1106,
1113 (9th Cir. 2014). The complaint, which charged Nalangan with a felony
violation of § 11377(a), is the only document that specifies that methamphetamine
was the drug at issue. Neither the court minutes nor the misdemeanor advisement
of rights documenting Nalangan’s no contest plea mentions which drug Nalangan
possessed. The government argues that we can nonetheless infer the drug of
conviction because the court minutes refer to Count 1 of the complaint.
Where a “minute order specifies that a defendant pleaded guilty to a
particular count of the criminal complaint . . . we can consider the facts alleged in
that count.” Cabantac v. Holder, 736 F.3d 787, 793–94 (9th Cir. 2013) (per
curiam). But the government must clearly and convincingly establish a link
between the complaint and plea documents to justify reliance on the complaint, and
even slight differences between the two can cast doubt on that link. In Medina-
Lara, the government failed to carry its burden where the complaint included
“Count 3” but the plea was to “Count 3A,” because it was “plausible” that the “A”
stood for “amended.” 771 F.3d at 1114–15. This was despite the fact that “the
record does not contain any serious suggestion that [the petitioner] was
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apprehended with any substance other than one controlled by federal law.” Id. at
1115; see also Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir. 2014) (holding
that we could not consider the charging papers where the original charge was for
possession but where the plea for attempted possession referred to “Modified
Count One” (emphasis added)).
Differences between Nalangan’s charging and plea documents similarly
preclude us from finding a clear and convincing link between the documents.
While the court minutes originally referred to “COUNTS 1) F11377(A) HS” in the
complaint, that entry is crossed out and “M11377(a) HS” is handwritten next to it.
The reason for the change is apparent; contrary to the original charge, Nalangan
pleaded no contest to a misdemeanor, rather than a felony, violation of § 11377(a).
It is therefore “plausible” that the charge was amended and, under Medina-Lara,
the government has therefore failed to meet its burden of clearly and convincingly
establishing that we may rely on the complaint to determine the drug of conviction.
771 F.3d at 1114–15.
We grant the petition for review, vacate the order of removal, and remand
the matter to the BIA for disposition consistent with this memorandum.
The government shall bear the costs for this petition for review.
Page 4 of 4
PETITION FOR REVIEW GRANTED; ORDER OF REMOVAL
VACATED; AND REMANDED.
FILED
Nalangan v. Holder, No. 10-71123 APR 07 2015
MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. The charging document alleged that Nalangan
violated California Health & Safety Code § 11377(a) by possessing
methamphetamine. Section 11377(a) is a “wobbler” which may result in either a
felony or misdemeanor conviction, and Nalangan pled no contest to a misdemeanor
conviction of § 11377(a). There is no indication that there was any question as to
the substance he illegally possessed or that any count was dismissed when
Nalangan pled no contest. The record of conviction shows that Nalangan pled
guilty to the specific count alleged in the charging document, and the count was
simply reduced from felony methamphetamine possession to misdemeanor
methamphetamine possession. For these reasons the record in this case is not
ambiguous, in contrast to Medina-Lara v. Holder, 771 F.3d 1106, 1114–15 (9th
Cir. 2014), and Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir. 2014). I would
therefore deny Nalangan’s petition.