The Ninth Circuit ordered rehearing en banc in this case. The panel's decision, 634 F.3d 1014 (9th Cir. 2011), had two primary holdings. Both were very important for noncitizens in removal proceedings with possible aggravated felony convictions, so the decision to take the case en banc raises concern. The court specifically directed briefing for rehearing en banc on the issue of whether an unqualified plea to an offense charged in the conjunctive (as is typical in California) admits violation of each of the charged offenses.
The government argued that such a plea would admit violation of every part of the statute--even if it would be ridiculous or physically impossible. For example, if the prosecutor charges in the conjunctive a violation of California Penal Code section 12020(a)(1) in its entirety, and the a defendant haplessly enters a plea to the complaint, the government argues he would be admitting ALL of the following:
Manufacturing and causing to be manufactured, importing into the state, keeping for sale, offering and exposing for sale, giving, lending, and possessing any cane gun and wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains and consists of any fléchette dart, any bullet containing and carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade and metal replica handgrenade, and any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, and sandbag
In other words, someone who in fact only possessed a nunchaku would be deemed to also be admitting to manufacture, import, sale, etc. of dozens of other weapons under the government's theory. It argued this was compelled by the notoriously ambiguous decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), which had mentioned in passing that a plea to a conjunctively charged complaint admitted three different violations.
The petitioner argued that the complaint in Snellenberger had been narrowed to three specific offenses out of a total of twenty-two possible covered by the statute. He argued this narrowing of the charges made an unqualified plea to the complaint different from a plea to a complaint that charges the entire statute.
The panel decision in Young also contains a favorable holding based on Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007). It held an inconclusive record of conviction carries a respondent's burden to establish that he or she does not have an aggravated felony that would bar cancellation of removal where one or more of the potential theories for conviction was not an aggravated felony. Since rehearing en banc permits review of all issues in a case, this may be revisited as well.
We'll see what the Ninth Circuit decides. Oral argument has been rescheduled to the week of December 12, 2011.
Read the briefs at http://www.ca9.uscourts.gov/datastore/uploads/enbanc/07-70949pfr.pdf