Skip to content

Rigoberto Aguilar-Turcios v. Holder (II)

Following the Supreme Court's decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).

Here, the court found the immigrant's conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements--the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.

DOWNLOAD (PDF, 109KB)

510-835-1115