Randy Cabantac v. Eric Holder, Jr. , 693 F.3d 825 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDY PENARANDA CABANTAC, 
a/k/a Randy Reyes, Nos. 09-71336,
Petitioner, 12-71459*
v.  Agency No.
ERIC H. HOLDER Jr., Attorney A045-078-802
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Petition No. 09-71336
Argued and Submitted
August 9, 2011—San Francisco, California
Filed August 23, 2012
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
*The judges unanimously find Petition No. 12-71459, which has been
consolidated with Petition No. 09-71336, suitable for disposition without
oral argument.
9627
CABANTAC v. HOLDER 9629
COUNSEL
Kara L. Hartzler, Florence Immigrant and Refugee Rights
Project, Florence, Arizona, Kari Elisabeth Hong, Law Office
of Kari E. Hong, Oakland, California, for the petitioner.
Linda Y. Cheng, Francis William Fraser, Gary J. Newkirk,
Aaron R. Petty, U.S. Department of Justice, Civil Divi-
sion/Office of Immigration Litigation, Washington, DC, for
the respondent.
OPINION
PER CURIAM:
Randy Cabantac, a native and citizen of the Philippines,
petitions for review from an order by the Board of Immigra-
tion Appeals (“BIA”) affirming an order of removal by the
Immigration Judge (“IJ”). The IJ found Cabantac removable
for having been convicted of possession of a controlled sub-
stance, methamphetamine, in violation of California Health &
Safety Code § 11377(a).
We review de novo the legal question of whether Cabantac
was convicted of a controlled substances offense. Ruiz-Vidal
9630 CABANTAC v. HOLDER
v. Gonzales, 473 F.3d 1072, 1076 n.2 (9th Cir. 2007). We
deny the petition.
The Notice to Appear alleges that Cabantac was subject to
removal for possession of a controlled substance as defined in
21 U.S.C. § 802. See 8 U.S.C. § 1227(a)(2)(B)(i). We must
decide whether the documents of conviction establish by clear
and convincing evidence that Cabantac was convicted of pos-
sessing methamphetamine, or whether they show he pleaded
guilty only to possession of a controlled substance generally.
The difference is important because not all substances punish-
able under California Health & Safety Code § 11377(a) are
defined in 21 U.S.C. § 802. Methamphetamine, however, is.
See 21 U.S.C. §§ 802(6), 812(a)(3) sched. III.
The record contains three documents of conviction: the
complaint, the plea colloquy and the abstract of judgment.
The BIA, in affirming the order of removal, found the abstract
of judgment sufficient to establish that Cabantac engaged in
conduct that qualifies as a controlled substance offense. See
also Kwong v. Holder, 671 F.3d 872, 879-80 (9th Cir. 2011).
At the time the BIA reviewed his case, the abstract indicated
that Cabantac pleaded guilty to “POSSESSION OF
METHAMPHETAMINE.”
Cabantac now contends that he never admitted to the type
of drug in his possession, but instead pleaded guilty only to
possession of a controlled substance in violation of California
Health & Safety Code § 11377(a). Because this statute
embraces some conduct that qualifies as a controlled sub-
stance offense and some conduct that does not, see Ruiz-
Vidal, 473 F.3d at 1078, Cabantac asserts that the government
has not shown by clear and convincing evidence that he’s
removable for having been convicted of a controlled sub-
stance offense. If Cabantac in fact pleaded only to the gener-
alized offense, he should’ve asked the state court to amend
the abstract of judgment at an earlier stage of the proceedings.
See United States v. Snellenberger, 548 F.3d 699, 702 (9th
CABANTAC v. HOLDER 9631
Cir. 2008) (en banc) (“A defendant can always check the case
file and ensure that any materials placed there accurately
reflect the proceedings; presumably, doing so is part of every
criminal defense lawyer’s professional obligation.”). It was
not until this court suggested it during oral argument that
Cabantac made such a request to the state court. The amended
abstract, issued by the state court in September 2011, shows
he pleaded guilty to “POSSESSION OF A CONTROLLED
SUBSTANCE.”
[1] Cabantac at that point asked the BIA to reopen his case
sua sponte in the interest of justice. The agency refused, find-
ing his motion untimely by more than two years. The BIA
reasoned that Cabantac had been represented by counsel
throughout the proceedings and could’ve secured the
amended abstract while his case stood before the immigration
judge. Cabantac appealed the BIA’s denial and moved to con-
solidate that case, No. 12-71459, with the instant appeal from
the order of removal. We grant his motion to consolidate, and
at the same time dismiss his appeal from the BIA’s refusal to
reopen his case sua sponte. This court does not have jurisdic-
tion to review such a decision, which is a matter committed
to agency discretion. See Mejia-Hernandez v. Holder, 633
F.3d 818, 824 (9th Cir. 2011); 8 C.F.R. § 1003.2(a).
[2] Cabantac also brings a motion to remand so that the
BIA might consider the amended abstract, which we also
deny. In refusing to reopen his case, the BIA noted that docu-
ments of conviction other than the abstract, including the plea
colloquy and complaint, identify the drug in Cabantac’s pos-
session as methamphetamine. Although the agency previously
found the abstract sufficient to sustain the removal order, this
statement shows that the BIA considered the record as a
whole in concluding that Cabantac is removable for having
been convicted of possession of a controlled substance.
Remand is unlikely to alter that conclusion and would serve
only to create delay.
9632 CABANTAC v. HOLDER
Finally, it bears emphasizing that the amended abstract
does not necessarily establish that Cabantac pleaded guilty
only to the general state offense. The document indicates that
he pleaded to count one of the complaint, and that count in
turn states that he possessed methamphetamine in violation of
California Health & Safety Code § 11377(a).
[3] Cabantac questions whether we can consider the facts
alleged in the complaint. We hold that where, as here, the
abstract of judgment or minute order specifies that a defen-
dant pleaded guilty to a particular count of the criminal com-
plaint or indictment, we can consider the facts alleged in that
count. We derive this rule from Snellenberger, in which the
court read a minute order in tandem with a complaint to con-
clude that the defendant’s conduct fit within the federal defi-
nition of a crime of violence. See 548 F.3d at 701-02. The
minute order specified that the defendant pleaded guilty to a
specific count of the complaint, and that count in turn
described conduct amounting to a crime of violence. See id.
at 701. We conclude, similarly, that the abstract of judgment
and the complaint together establish that Cabantac pleaded
guilty to possession of methamphetamine.
Cabantac cites to Ruiz-Vidal, in which we held the charging
document and abstract insufficient to establish that the con-
trolled substance underlying the conviction was methamphet-
amine. See 473 F.3d at 1079. That case, however, is
distinguishable on its facts. The information in Ruiz-Vidal
identified the drug at issue as methamphetamine, but the
defendant did not plead guilty to either of the crimes charged
in that document; he pleaded instead to violating California
Health & Safety Code § 11377(a). Id. Because the record con-
tained no plea agreement or colloquy that revealed the facts
underlying the plea, the court concluded that “there is simply
no way for us to connect the references to methamphetamine
in the charging document with the conviction.” Id. Similarly,
in Martinez-Perez v. Gonzales, 417 F.3d 1022, 1029 (9th Cir.
2005), withdrawing and amending 393 F.3d 1018 (9th Cir.
CABANTAC v. HOLDER 9633
2004), the defendant pleaded guilty to a different offense from
the one charged in the information. Thus, the facts given in
the information could not be used to establish that his conduct
amounted to an aggravated felony.
In contrast to the defendants in Ruiz-Vidal and Martinez-
Perez, Cabantac confirmed three times during his plea collo-
quy that he was pleading guilty to count one of the complaint.
Count one specified that the substance Cabantac possessed
was methamphetamine.
[4] Cabantac contends that his conviction cannot support
the finding that he was convicted of a controlled substance
offense because, under People v. West, 477 P.2d 409 (Cal.
1970), a guilty plea to an offense does not necessarily mean
the defendant admitted all the facts alleged in the indictment.
Where a defendant pleads guilty to a state offense that is
broader than the generic federal crime as in Ruiz-Vidal, and
not to a count in the indictment as Cabantac did here,
Cabantac’s argument makes sense. But here the record is clear
that Cabantac pleaded guilty to possession of methamphet-
amine, a controlled substance offense that supports the order
of removal.
PETITION DENIED.