Ryan Nalangan v. Eric Holder, Jr.

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NOT FOR PUBLICATION APR 07 2015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…

dissenting:

I respectfully dissent. The charging document alleged that Nalangan violated California Health & Safety Code § 11877(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.

MEMORANDUM *

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.

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…