Jose Emilio Ulloa Francisco v. U.S. Attorney General

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________ No. 15-13223 __________________________ Agency No. A045-874-205 JOSE EMILIO ULLOA FRANCISCO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. __________________________ Petition for Review of a Decision of the Board of Immigration Appeals __________________________ (March 12, 2018) Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO, * District Judge. TJOFLAT, Circuit Judge: The Armed Career Criminal Act (“ACCA”) provides that a person convicted of violating 18 U.S.C. § 922(g) faces an enhanced sentence if he or she has three previous convictions for “violent felon[ies].” 1 To determine whether a conviction qualifies as a violent felony, a court may look “only to the statutory definition[] of the prior offense[], and not to the particular facts underlying th[e] conviction[].” Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990). In some cases, the statute under which the defendant was convicted contains multiple offenses—some that are violent felonies and some that are not. This means that the statute is divisible. Descamps v. United States, 570 U.S. 254, 257, 133 S. Ct. 2276, 2281 (2013). In such cases, the Government must prove that the conviction qualified as a violent felony. To do so, it may introduce limited parts of the record of the conviction.2 Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005) (plurality opinion). If these parts, which we refer to as Shepard * Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 1 18 U.S.C. § 924(e)(1). The ACCA also provides for an enhancement if a person has committed three or more “serious drug offense[s].” Id. § 924(e)(1). The statute defines both “violent felony” and “serious drug offense.” Id. § 924(e)(2)(A)–(B). 2 The Government is limited to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S. Ct. at 1263. Ordinarily, these items are not in dispute and thus are subject to judicial notice. 2 documents, do not identify the offense of conviction, the Government has failed to carry its burden of proof, and it is presumed that the conviction was for an offense that did not qualify as a violent felony. 3 Johnson v. United States, 559 U.S. 133, 137, 130 S. Ct. 1265, 1269 (2010). This same presumption applies in proceedings brought by the Attorney General (“AG”) under the Immigration and Nationality Act (“INA”) to remove an alien from the United States on the ground that the alien, after admission into the country, had been convicted of an offense designated in the INA. See INA § 237(a)(2); 8 U.S.C. § 1227(a)(2). If the alien was convicted under a divisible statute, one which contains both designated offenses and non-designated offenses, the AG may prove that the alien’s ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals