- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 06-17-2015
- Case #: 11-73433
- Judge(s)/Court Below: Circuit Judge Kozinski for the Court; Circuit Judge Clifton; Dissent by Circuit Judge Reinhardt
- Full Text Opinion
Since 1976, Jose Reyes Alberto Ruiz-Vidal (“Ruiz-Vidal”), a Mexican citizen, has been living in the Unites States. In 2009, Ruiz-Vidal was charged with the sale and possession of methamphetamine. He pleaded no contest and was convicted. As a result, Ruiz-Vidal was served with a Notice to Appear from the Department of Homeland Security, whereupon an Immigration Judge found Ruiz-Vidal was removable because of his felony conviction. On appeal, the Ninth Circuit reviewed whether Ruiz-Vidal was, in fact, removable. The panel explained that if the government can prove by clear and convincing evidence that an alien has been convicted of an aggravated felony, which includes those convictions involving a controlled substance under the Controlled Substances Act, then said alien is removable. Here, the panel noted that under modified categorical approach Ruiz-Vidal’s previous charges, his plea colloquy, and the court clerk’s minutes from the hearing from Ruiz-Vidal’s prior hearing for the sale and possession of methamphetamine qualifies this crime as an aggravated felony under federal law. Further, the panel noted that while Ruiz-Vidal pleaded no contest to his previous sale and possession charge, which would normally allow for Ruiz-Vidal a reprieve from answering to a crime he has not been indicted for, the lesser included offense doctrine did not exactly apply. The panel stated that in order for Ruiz-Vidal to have pleaded no contest to the sale of methamphetamine it reasonably follows that he was in possession of methamphetamine. Therefore, a defendant can be found guilty for a lesser offense which is “necessarily included” in the initial offense charged. Schmuck v. United States. PETITION DENIED.