               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOSE REYES RUIZ-VIDAL,                   No. 11-73433
                         Petitioner,
                                         Agency No.
                v.                      A034-639-824

LORETTA E. LYNCH, Attorney
General,                                ORDER AND
                      Respondent.        OPINION


       On Petition for Review of an Order of the
           Board of Immigration Appeals

                Argued and Submitted
        January 6, 2014—Pasadena, California

                Filed October 9, 2015

      Before: Stephen Reinhardt, Alex Kozinski
       and Richard R. Clifton, Circuit Judges.

             Opinion by Judge Kozinski;
             Dissent by Judge Reinhardt
2                     RUIZ-VIDAL V. LYNCH

                           SUMMARY*


                           Immigration

    The panel withdrew its prior opinion and dissent, filed an
amended opinion and dissent, denied a petition for panel
rehearing and denied on behalf of the court a petition for
rehearing en banc in a case in which the Board of
Immigration Appeals found Jose Reyes Alberto Ruiz-Vidal
removable because he was convicted of a controlled
substance offense.

    Denying Ruiz-Vidal’s petition for review, the panel held
that he was removable because he was convicted of an
offense relating to a controlled substance covered by the
Controlled Substances Act, due to his no contest plea to
simple possession under California Health & Safety Code
§ 11377(a), a lesser included offense to Count 1 of the
Information, sale of methamphetamine in violation of CHSC
§ 11379(a).

    Applying the modified categorical approach, the panel
held that clear and convincing evidence in documents
permissible for review established that Ruiz-Vidal pleaded
to and was convicted of possession of methamphetamine, a
controlled substance.

    Dissenting, Judge Reinhardt would ask rather whether
the record provided clear, unequivocal, and convincing
evidence that Ruiz-Vidal was convicted of possessing

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  RUIZ-VIDAL V. LYNCH                     3

methamphetamine, and would determine whether his plea to
possession of a controlled substance, as a lesser included
offense to sale of methamphetamine, necessarily constitutes
a conviction for possession of methamphetamine. Judge
Reinhardt also wrote that the majority’s adoption of a new
exception to United States v. Vidal, 504 F.3d 1072 (9th Cir.
2007) (en banc), for pleas to lesser included offenses as
memorialized in a plea colloquy is unwarranted and unwise.


                       COUNSEL

Christopher G. Clark (argued), Catherine R. Holmes and
Gregory L. Shiferman, Boston, Massachusetts, for Petitioner.

Stuart F. Delery, Principal Deputy Assistant Attorney
General, Richard M. Evans and Mary Jane Candaux,
Assistant Directors, Michael C. Heyse (argued) and Virginia
Lum, Attorneys, United States Department of Justice, Civil
Division, Washington, D.C., for Respondent.


                         ORDER

    The opinion and dissent filed on June 17, 2015, and
published at 789 F.3d 1065, are hereby withdrawn and
replaced by the amended opinion and dissent filed
concurrently with this order. With these amendments,
Respondent’s motion to amend the published decision is
granted. The petition for panel rehearing is denied. Judge
Reinhardt would grant it. The petition for rehearing en banc
is denied. See Fed. R. App. P. 35. No further petitions for
panel rehearing or rehearing en banc will be entertained.
4                  RUIZ-VIDAL V. LYNCH

                         OPINION

KOZINSKI, Circuit Judge:

    Jose Reyes Alberto Ruiz-Vidal, a native and citizen of
Mexico, has lived in the United States since August 1976 as
a lawful permanent resident, but he hasn’t behaved himself.
Among other transgressions, he’s been charged with
methamphetamine-related crimes at least twice before and, as
a result, has repeatedly faced deportation proceedings. We’re
tasked with reviewing his latest dalliance. We consider
whether he is removable due to his no contest plea to a lesser
included offense when we apply the modified categorical
approach.

                              I.

   In 2009, California filed an Information charging Ruiz-
Vidal with sale and possession for sale of a controlled
substance, which the Information identified as
methamphetamine. Ruiz-Vidal pleaded no contest to simple
possession—a lesser included offense of the sale charge. He
was sentenced to time served and five years felony probation.

    The Department of Homeland Security served Ruiz-Vidal
with a Notice to Appear, and an Immigration Judge
concluded that Ruiz-Vidal was removable because he was
convicted of “a controlled substance offense which can be
identified as methamphetamine.” He appealed to the Board
of Immigration Appeals, which agreed with the Immigration
Judge. We review Ruiz-Vidal’s petition to vacate the
removal order.
                   RUIZ-VIDAL V. LYNCH                       5

                              II.

    An alien is removable if the government proves by clear
and convincing evidence that he’s been convicted of certain
offenses “relating to a controlled substance” covered by the
Controlled Substances Act (“CSA”).                8 U.S.C.
§ 1227(a)(2)(B)(i); see Cabantac v. Holder, 736 F.3d 787,
792 (9th Cir. 2013) (per curiam) (as amended). We review
whether Ruiz-Vidal was convicted of a controlled substance
offense de novo. Cabantac, 736 F.3d at 792. To determine
whether an alien’s offense qualifies as one “relating to a
controlled substance” covered by the CSA, we compare the
elements of the state statute of conviction to the offense as
defined by federal law. See Taylor v. United States, 495 U.S.
575, 602 (1990); Alvarado v. Holder, 759 F.3d 1121, 1126,
1130 (9th Cir. 2014).

     California Health and Safety Code § 11377(a) is “a
divisible statute, and thus, we apply the modified categorical
approach” to analyze Ruiz-Vidal’s conviction and determine
whether it involved a substance included in the CSA.
Coronado v. Holder, 759 F.3d 977, 981 (9th Cir. 2014) (as
amended); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th
Cir. 2007) (yep, that’s our guy), abrogation on other grounds
recognized by Ragasa v. Holder, 752 F.3d 1173, 1175 (9th
Cir. 2014) (as amended). Section 11377(a) lists alternative
potential offense elements, “some of which are contained in
the CSA and some of which are not.” Coronado, 759 F.3d at
984. For example, chorionic gonadotropin isn’t on Schedule
III of the CSA, but is on California’s Schedule III. Id. at 983
n.1; see also Cal. Health & Safety Code § 11056(f)(32).
Where a statute is divisible we’re permitted to review certain
documents to determine which alternative in the statute
6                  RUIZ-VIDAL V. LYNCH

applies. Descamps v. United States, 133 S. Ct. 2276, 2281
(2013).

    1. When applying the modified categorical approach,
we’re restricted to “consult[ing] a limited class of
documents,” id., to determine whether the defendant was
convicted of a crime “relating to a controlled substance”
defined by the CSA. Alvarado, 759 F.3d at 1126. In this
case, documents we may consider include Ruiz-Vidal’s plea
colloquy, the charging information and the clerk’s minute
order. See Descamps, 133 S. Ct. at 2283–84; United States v.
Leal-Vega, 680 F.3d 1160, 1168 (9th Cir. 2012). After we
determine the elements of the crime of conviction, we
compare them “with the elements of the generic crime,”
Descamps, 133 S. Ct. at 2281, as we would under the
categorical approach.

     Ruiz-Vidal argues that his record of conviction doesn’t
identify the controlled substance to which he pleaded—that
is, that we can’t tell from looking at the limited class of
acceptable documents whether he pleaded to possession of
methamphetamine or some other substance, say chorionic
gonadotropin. But Count 1 of the Information charged Ruiz-
Vidal with unlawful “SALE OF A CONTROLLED
SUBSTANCE, a violation of section 11379(a) of the
HEALTH AND SAFETY CODE of California . . . to wit:
methamphetamine.” (Emphasis added.) Count 1 also
includes an allegation that Ruiz-Vidal “possessed for
sale/sold 57 grams or more of a substance containing
methamphetamine.”

    At his plea colloquy, Ruiz-Vidal confirmed that he was
pleading no contest to the lesser included offense of Count 1
of the Information, not just to an untethered violation of
                   RUIZ-VIDAL V. LYNCH                       7

§ 11377(a) (possession). The court asked for Ruiz-Vidal’s
plea “to the lesser included to Count 1, a violation of Health
and Safety Code Section 11377(a),” and Ruiz-Vidal
responded “[n]o contest.” The court then made a finding of
guilt, and the government indicated that the “remainder of the
complaint would be dismissed.” (Emphasis added.)

    The court’s minute order—another document that’s
permissible to review under the modified categorical
approach, see Leal-Vega, 680 F.3d at 1168—confirms that
Ruiz-Vidal pleaded to the lesser included offense of Count 1.
It states that Ruiz-Vidal entered a plea to the “lesser
included/reasonably related offense” of “Count 1” and
indicates that Ruiz-Vidal stipulated that a factual basis
existed for the plea. Where a minute order specifies that a
defendant pleaded to a specific “count of the criminal
complaint or indictment, we can consider the facts alleged in
that count.” Cabantac, 736 F.3d at 794.

    And when a defendant references a specific count during
his plea colloquy, we can also consider the drug listed in the
charging document. See id. Furthermore, a plea referencing
a “to wit” count in a charging document suffices to establish
the controlled substance for removal purposes. See Leal-
Vega, 680 F.3d at 1168–69; United States v. Valdavinos-
Torres, 704 F.3d 679, 687–88 (9th Cir. 2012). In Leal-Vega,
for example, the defendant pleaded guilty to “Count 1” of the
complaint, which stated that he possessed “for purpose of sale
a controlled substance, to wit, TAR HEROIN.” 680 F.3d at
1168 (emphasis omitted). We found the conviction to be for
a drug trafficking offense because the minute order stated that
the conviction was for Count 1. Id. at 1168–69. Similarly, in
Valdavinos-Torres, we held that a defendant’s conviction was
an aggravated felony for purposes of removal after reviewing
8                  RUIZ-VIDAL V. LYNCH

a plea form indicating that he’d “pled guilty to Count Two,”
which the complaint described as possession for “sale [of] a
controlled substance, to wit, Methamphetamine.” 704 F.3d
at 687–88. Thus, Ruiz-Vidal’s plea—which references a
specific count in the Information—and the Information,
which references a specific controlled substance, provide
clear and convincing evidence that Ruiz-Vidal was convicted
of a removable offense.

    2. Ruiz-Vidal further argues that we can’t consider the
reference to methamphetamine in the Information because, by
pleading no contest to a lesser included offense, he “pled to
an offense different from the one charged.” In essence, he
argues that possession of another controlled substance, say
chorionic gonadotropin, could be a lesser included offense of
the sale of methamphetamine charge.

     But, in addition to asking us to overlook his plea’s
specific reference to Count 1, Ruiz-Vidal ignores the meaning
of “lesser included offense.” Although it “is ancient doctrine
. . . that a defendant cannot be held to answer a charge not
contained in the indictment,” our criminal justice system has
long permitted a defendant to be found “guilty of any lesser
offense necessarily included in the offense charged.”
Schmuck v. United States, 489 U.S. 705, 717–18 (1989)
(emphasis added) (internal quotation marks omitted).
California defines a lesser included offense as: “[w]here an
offense cannot be committed without necessarily committing
another offense, the latter is a necessarily included offense.”
People v. Tinajero, 24 Cal. Rptr. 2d 298, 300 (Cal. Ct. App.
1993). California courts determine whether an offense is
necessarily included by reviewing whether “the facts actually
alleged in the accusatory pleading[] include all the elements
of the lesser offense, such that the greater [offense] cannot be
                   RUIZ-VIDAL V. LYNCH                     9

committed without also committing the lesser [offense].”
People v. Birks, 960 P.2d 1073, 1078 (Cal. 1998).

    Ruiz-Vidal was charged with sale of methamphetamine
under California Health and Safety Code § 11379(a) but
pleaded to—and was convicted of—a “lesser
included/reasonably related offense” to the charge under
§ 11377. Ruiz-Vidal admitted to the factual basis for his
plea, and he never disputed that he was pleading to a lesser
included offense of sale of methamphetamine. Thus, even
based only on the limited documents we’re allowed to review,
it’s clear that Ruiz-Vidal pleaded to possession of
methamphetamine.

    The dissent concedes there’s no reasonable dispute that
Ruiz-Vidal “actually possessed methamphetamine, as
opposed to a drug that is not punishable under federal law,”
but nonetheless argues that we cannot know whether he was
“convicted of possessing methamphetamine,” as opposed to
some other drug. Dissent at 12. However, because
possession of each different drug under California Health and
Safety Code § 11377(a) constitutes an entirely separate
offense, Coronado, 759 F.3d at 985, the indictment charged
him with the specific offense of sale of methamphetamine,
not sale of a controlled substance. A conviction for
possession of any other drug couldn’t be a lesser included
offense to sale of methamphetamine. The only way a
conviction for “possession of a controlled substance” can be
a lesser included offense to the crime of “sale of
methamphetamine” is if the drug the defendant is convicted
of possessing is methamphetamine. Hence, so long as there
is clear and convincing evidence that Ruiz-Vidal’s crime of
conviction was a lesser included offense to Count 1, we can
conclude he was convicted of possessing methamphetamine.
10                 RUIZ-VIDAL V. LYNCH

    The dissent characterizes our holding as “a new
exception” to the general “rule” that “when the record of
conviction comprises only the indictment and the judgment,
the judgment must contain the critical phrase ‘as charged in
the Information’” or otherwise “unambiguously specif[y] that
Defendant pleaded guilty to a specific count.” Dissent at
13–14 (emphasis added and omitted) (internal quotation
marks omitted). But, the record of conviction here comprises
more than just the indictment and judgment. In United States
v. Vidal, there was no “transcript of the plea colloquy or any
other memorialization of the factual basis for [the] plea,”
504 F.3d 1072, 1090 (9th Cir. 2007). Here, we have the
transcript of a plea colloquy that gives us a clear way to
“connect the references to methamphetamine in the charging
document with the conviction under Cal. Health & Safety
Code § 11377(a).” Ruiz-Vidal, 473 F.3d at 1079. During the
colloquy, the judge specifically asked whether there was a
factual basis for the plea, which had been identified as a
“lesser included offense of Count 1.” Ruiz-Vidal had ample
opportunity to object to that characterization, but failed to do
so. The only difference between this case and the numerous
cases in which we have relied on the factual basis stipulated
to during a plea colloquy is that the judge here didn’t use the
word “methamphetamine.” But that’s irrelevant because, as
we have shown, a possession conviction that is a lesser
included offense to sale of methamphetamine can only be for
possession of methamphetamine.

    Finally, Ruiz-Vidal relies on an unpublished BIA opinion
and Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir. 2006)
(as amended), to argue that we can’t rely on the record to
determine that his plea to a lesser included offense was for
methamphetamine possession. But in Cisneros-Perez we
concluded that the judgment record didn’t establish that
                   RUIZ-VIDAL V. LYNCH                      11

Cisneros-Perez “necessarily pleaded no contest to the
allegations in the original complaint” because “[i]t is not
stated in any of the cognizable documents that the conviction
for violating [the lesser included offense] stems from the
same incident as the charges in the criminal complaint.” Id.
at 393 (emphasis added). Here, the cognizable documents
demonstrate that Ruiz-Vidal’s plea to the lesser included of
Count 1 derives from the same incident as the Information,
which explicitly referenced methamphetamine. Ruiz-Vidal’s
record of conviction contains what Cisneros-Perez’s record
of conviction lacked—a clear connection between the plea
and the facts alleged in the charging document.

    In their briefs urging panel rehearing or rehearing en
banc, Ruiz-Vidal and amici argue for the first time that under
California law, possession is not a lesser included offense of
sale. But Ruiz-Vidal waived this argument: In his
supplemental brief filed on December 20, 2013, he conceded
that the “lesser included offense” characterization was correct
“as a matter of law.”

              *                *              *

    Because there is clear and convincing evidence in the
documents permissible for review that Ruiz-Vidal pleaded
to—and was convicted of—possession of methamphetamine,
a controlled substance, he is removable.

   PETITION DENIED.
12                 RUIZ-VIDAL V. LYNCH

REINHARDT, Circuit Judge, dissenting:

    Petitioner was charged with sale of a controlled substance
— a substance that the state alleged in the information was
methamphetamine. He pled no contest to a lesser included
offense — possession of a controlled substance. Petitioner
stipulated that there was a factual basis for his plea, but
explained nothing further regarding the offense. The question
in this case is not whether Petitioner actually possessed
methamphetamine, as opposed to a drug that is not punishable
under federal law. If that were the question, this case would
be straightforward, as “the record does not contain any
serious suggestion that [Petitioner possessed] any substance
other than [methamphetamine].” Medina-Lara v. Holder,
771 F.3d 1106, 1115 (9th Cir. 2014).

    The question instead, however, is whether the record
provides clear, unequivocal, and convincing evidence that
Petitioner was convicted of possessing methamphetamine.
See Carachuri-Rosendo v. Holder, 560 U.S. 563, 576 (2010)
(“The text [of the Immigration and Nationality Act] thus
indicates that we are to look to the conviction itself as our
starting place, not to what might have or could have been
charged.”). In answering that question, “whether [Petitioner]
actually possessed . . . [methamphetamine] ‘makes no
difference.’” Medina-Lara, 771 F.3d at 1115 (quoting
Descamps v. United States, 133 S. Ct. 2276, 2286 (2013)).
Rather, our limited task is to determine whether Petitioner’s
plea to possession of a controlled substance, as a lesser
included offense to sale of methamphetamine, necessarily
constitutes a conviction for possession of methamphetamine.

    Here, the specification of methamphetamine occurs only
in the allegations contained in a count of the information to
                       RUIZ-VIDAL V. LYNCH                             13

which Petitioner did not plead guilty. In fact, the plea was
made to an entirely different statute not even mentioned in
the information. In United States v. Vidal, 504 F.3d 1072
(9th Cir. 2007) (en banc), we held that in order to allow us to
infer that a defendant was convicted of the allegations in the
information, “when the record of conviction comprises only
the indictment and the judgment, the judgment must contain
the critical phrase ‘as charged in the Information.’” Id. at
1087 (emphasis added) (citation omitted). In other words,
Vidal made clear that a defendant is not convicted of the
allegations unless he pleads guilty “as charged in the
Information.” We have, in recent cases, made an exception
to this rule in one situation, and one situation only: “[w]here
. . . the abstract of judgment unambiguously specifies that
Defendant pleaded guilty to a specific count.” United States
v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014). We
have not considered the allegations in the information when
the defendant “pled guilty to an offense different from the one
charged in the information.”1 Martinez-Perez v. Gonzales,
417 F.3d 1022, 1029 (9th Cir. 2005), abrogated on other
grounds by United States v. Snellenberger, 548 F.3d 699 (9th

 1
    The cases cited by the majority support this statement. The majority,
for example, cites Cabantac v. Holder, 736 F.3d 787 (9th Cir. 2013) (per
curiam), United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012), and
United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012). All of
those cases involved circumstances in which we considered the conduct
alleged in a count of an indictment specifically because the defendant pled
guilty to that particular count — not some other, related offense. See
Cabantac, 736 F.3d at 793–94; Leal-Vega, 680 F.3d at 1168; Valdavinos-
Torres, 704 F.3d at 688; see also Torre-Jimenez, 771 F.3d at 1168 (listing
Cabantac, Leal-Vega, and Valdavinos-Torres as cases that support the rule
that “[w]here the minute order or other equally reliable document specifies
that a defendant pleaded guilty to a particular count of a criminal
complaint, the court may consider the facts alleged in the complaint”
(citation omitted) (internal quotation marks omitted)).
14                      RUIZ-VIDAL V. LYNCH

Cir. 2008) (en banc) (per curiam); see also Alvarado v.
Holder, 759 F.3d 1121, 1131 (9th Cir. 2014); Cisneros-Perez
v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006). This case
obviously does not fall within the one exception we have
created; rather, it obviously does fall within the class of cases
in which the defendant pled guilty to a different offense than
the one charged, and in which we consequently refused to
review the allegations in the charging document when
applying the modified categorical approach.

    The majority opinion, however, adopts a new exception
— for certain cases in which the defendant did not plead
guilty to the offense charged in the indictment, but to a
different statutory offense — an offense that constituted a
lesser included offense to a crime that was charged in the
information. It holds, in short, that because Petitioner was
charged with selling a controlled substance, specified as
methamphetamine in the information, and he pled no contest
in his plea colloquy to a different criminal charge — the
lesser included offense of possession of a controlled
substance — the controlled substance he pled no contest to
possessing was necessarily methamphetamine.2

  2
    The majority objects to my characterization of its opinion as a new
exception to Vidal. It argues that Vidal does not control because, whereas
in Vidal there was no “memorialization of the factual basis for [the] plea,”
Vidal, 504 F.3d at 1090, in this case there was such a memorialization in
the plea colloquy. The majority is incorrect. The plea colloquy here does
not memorialize the factual basis for the plea; it reveals only that there
was a factual basis for the plea, and that the plea was to the lesser included
offense to the one charged. It does not include an admission that the drug
Petitioner pled no contest to possessing was methamphetamine, a
substance that was not mentioned once during the entirety of the plea
colloquy. Thus, unlike in the “numerous cases in which we have relied on
the factual basis stipulated to during a plea colloquy,” Maj. Op. at 10, here
the plea colloquy alone is insufficient to connect Petitioner’s plea to a drug
                        RUIZ-VIDAL V. LYNCH                                 15

     The majority’s adoption of a new exception to Vidal for
pleas to lesser included offenses as memorialized in a plea
colloquy is unwarranted and unwise. Petitioner is removable
only if he was “convicted” of a controlled substances offense
as defined by federal law. 8 U.S.C. § 1227(a)(2)(B)(I).
Therefore, as explained above, we must “look to the
conviction itself as our starting place, not to what might have
or could have been charged.” Carachuri-Rosendo, 560 U.S.
at 576. When a defendant pleads guilty to a lesser included
offense, however, he does “not plead guilty to, and therefore
[is] not actually convicted of, the . . . charge contained in the
indictment.” United States v. Bernal-Aveja, 414 F.3d 625,
627 (6th Cir. 2005). In such a case, “the indictment alone is
insufficient to meet the government’s burden of proving that
[Petitioner] was previously convicted of a [controlled
substances offense].” Id. (emphasis added). Moreover, the
majority’s new exception dispenses with a simple rule — one
that limits our review of an indictment to cases in which the


he would be removable for possessing. Indeed, the majority implicitly
recognizes this insufficiency. It relies on the fact that Petitioner “never
disputed that he was pleading to a lesser included offense of sale of
methamphetamine” at his plea colloquy to prove that he pleaded to
possession of methamphetamine. Maj. Op. at 9. Never before have we
held that a defendant’s failure to dispute a fact is proof of that fact, and for
good reason. Because “methamphetamine” was never mentioned during
the plea colloquy, there was no such factual allegation for the defendant
to dispute. Moreover, the majority’s reasoning ignores that it is the
government’s burden to prove by clear, unequivocal and convincing
evidence all facts supporting removability. See Ayala-Villanueva v.
Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009). That Petitioner said
nothing whatsoever at his plea colloquy about whether or not his
conviction involved methamphetamine falls far short of proving that his
conviction did. Recognizing this fact, the government relies on the facts
alleged in the charging document in attempting to carry its burden. In that
circumstance, Vidal controls.
16                      RUIZ-VIDAL V. LYNCH

defendant pled guilty “as charged in the information” or to a
specific count in the information. Instead, it forces us into the
often difficult task of reviewing what may well be near-
impenetrable or highly ambiguous state case law on lesser
included offenses in order to determine which of the
allegations in the charging document necessarily constitute
the factual basis for the lesser crime. This task, as the present
case demonstrates, is likely to result in considerable
confusion and the faulty or erroneous application of state
law,3 as well as a holding that is directly contrary to the spirit



  3
    The complexity and uncertainty of that task is well illustrated here.
Although Petitioner pled no contest to the lesser included offense to sale
of a controlled substance, the offense to which he pled no contest —
possession of a controlled substance — is not a lesser included offense to
the crime charged — sale of a controlled substance — under at least one
of the tests used by California courts. Under California’s elements test,
“possession of a controlled substance cannot be a necessarily lesser
included offense of selling or offering to sell . . . because the former crime
contains elements a sales offense does not: knowing possession of a usable
quantity.” People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct.
App. 1994); see also Judicial Council of California Criminal Jury
Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the
particular drug alleged in the information is not relevant to determining a
lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826,
828–29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the
“specific language of the accusatory pleading” must include all of the
elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668
(Cal. Ct. App. 1996). In this case, the first count in the accusatory
pleading — the count to which Petitioner pled no contest to the lesser
included offense — does not include any specific language concerning
possession of methamphetamine; it merely repeats the language in the sale
statute. There is an excess clause as to count one including the allegation
that Petitioner “possessed for sale/sold . . . methamphetamine,” but that
allegation could be satisfied by Petitioner selling methamphetamine
without possessing it for sale. In short, rather than clear, unequivocal, and
convincing evidence that Petitioner pled no contest to possession of
                      RUIZ-VIDAL V. LYNCH                            17

and purpose, if not the text, of the rule our en banc court
adopted only a short time ago.

     Even if the majority’s new rule were consistent with our
precedent, I would nevertheless not adopt the additional
exception to Vidal that it creates — an exception for certain
cases in which the defendant pleads guilty to a different
offense than the one charged. Indeed, I would adopt no more
exceptions to Vidal than the one our court has already made
for pleas to a specific count in the information. The primary
benefit to the rule we announced in Vidal was that it ensured
to the greatest extent possible that defendants who might face
deportation as the result of pleading guilty to a criminal
charge would know with reasonable certainty whether their
plea could have that consequence. Following Vidal, we
refused to look to the factual allegations in the charging
document unless the defendant explicitly pled guilty to those
factual allegations — indeed, pled guilty “as charged in the
information.” Although I would not have created an
exception to Vidal in any case, at least until now we have
done so only when the defendant pled guilty to a specific
count in the charging document, thus directly connecting the
defendant’s plea to the factual allegations in that document.
See Medina-Lara, 771 F.3d at 1113. When a defendant
pleads guilty to a different offense than the one charged,
however, we have no assurance that he knowingly pled guilty
to the particular allegation in the charging document that
triggers his eligibility for deportation.

    It is vitally important that criminal defendants —
particularly those who may face removal from this country as


methamphetamine, the record in this case reveals ambiguity and confusion
regarding the meaning of Petitioner’s plea to a lesser included offense.
18                  RUIZ-VIDAL V. LYNCH

a result of their plea — “anticipate the immigration
consequences of guilty pleas in criminal court.” Mellouli v.
Lynch, 135 S. Ct. 1980, 1987 (2015). As our court adopts
new exceptions to Vidal, however, we increasingly “risk[]
depriving criminal defendants who pled guilty in reliance on
Vidal [or other cases in this area of law] of the benefit of their
plea.” Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013)
(Murguia, J., dissenting from the denial of rehearing en banc).
Indeed, “even the most well advised defendant, negotiating a
plea with the intention of avoiding adverse immigration
consequences, could end up being deprived [of] the benefit of
that negotiation if we ignore our own precedent and change
the rules of the game after it has already been played.” Id.

    This case is such an example. Prior to this case, we had
never reviewed the allegations in a charging document when
the defendant “pled guilty to an offense different from the one
charged in the information.” Martinez-Perez, 417 F.3d at
1029. In fact, we abstained from doing so in a 2007 case
involving the very petitioner in this case — Jose Reyes
Alberto Ruiz-Vidal — in which the charges were identical to
those in this case (including the specification of
methamphetamine in the information), and the offense to
which he pled guilty was identical to the one in this case
(possession of a controlled substance, with no specification
of the particular drug). See Ruiz-Vidal v. Gonzales, 473 F.3d
1072, 1074–75 (9th Cir. 2007). We held that the petitioner
was not removable for his offense precisely because he “did
not plead guilty to an offense that was charged in the
information” and, as a result, “there [was] simply no way for
us to connect the references to methamphetamine in the
charging document with the conviction under Cal. Health &
Safety Code § 11377(a).” Id. at 1079.
                   RUIZ-VIDAL V. LYNCH                       19

    It is, therefore, no surprise that in this case Petitioner
carefully avoided any mention of methamphetamine during
the plea colloquy and deliberately pled no contest to a
different offense than the ones charged in the information.
His prior experience had demonstrated that as long as he did
exactly that, he could not be removed for his conviction. See
I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001) (“[A]lien
defendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their
convictions.”). By adopting a new exception to Vidal,
however, the majority disregards Petitioner’s reasonable
reliance on the law of our circuit — indeed, law from which
he had directly benefitted in an earlier case. Even worse, it
disregards Petitioner’s decision to “waive several of [his]
constitutional rights (including the right to a trial) and grant
the government numerous ‘tangible benefits, such as
promptly imposed punishment without the expenditure of
prosecutorial resources,’” principally in exchange for the
immigration benefits he reasonably believed he would receive
as a result of his plea. Id. (quoting Newton v. Rumery,
480 U.S. 386, 393 n.3 (1987)).

    The majority’s decision is wrong and unjust. By adopting
a new exception to Vidal and applying it in this case, the
majority opinion effectively “attach[es] new legal
consequences to past decisions,” and thereby “disrupt[s]
settled expectations and actions taken in reliance on them.”
Magana-Pizano v. I.N.S., 200 F.3d 603, 613 (9th Cir. 1999)
(quoting Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.
1997)) (internal quotation marks omitted). To avoid the
inevitable, unjust consequences of eviscerating Vidal through
creeping exceptions and of undermining the certainty of
circuit law, I would cease our practice of creating new
exceptions whenever we feel like doing so and in any event
20                 RUIZ-VIDAL V. LYNCH

would not utilize that insidious practice in a case in which a
defendant may suffer extremely severe consequences as a
result of relying on our law as it was at the time he waived his
constitutional rights. I dissent.
