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U.S. v. Valdavinos-Torres

The Ninth Circuit held that a plea to California Health and Safety Code 11378 (possession of a controlled substance for sale) was an aggravated felony under the modified categorical approach where count 2 of the complaint alleged the substance involved was methamphetamine and the plea form, minute order, and abstract of judgment all indicated the plea was to count 2. It held that the fact the plea was pursuant to People v. West was of no consequence, despite the fact that under California law a West plea does not necessarily admit all of the alleged facts.

The decision fails to even acknowledge that it conflicts with the en banc decision in U.S. v. Vidal or the prior decision in Fregozo v. Holder. Each hold that a minute order must include the critical phrase "as charged" to sufficiently establish under the modified categorical approach that the defendant pled guilty to an aggravated felony where the minute order does not otherwise indicate the factual basis for the plea. This is because under California law a charging document can be orally amended, so a plea to "count 2" does not necessarily mean a plea to the count as written in the complaint. This is particularly true for a West plea. Unfortunately, Valdavinos-Torres fails to even address this issue, which is strange since the decision does discuss Vidal.