                                                                            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                            NOT FOR PUBLICATION                             APR 07 2015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 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 government must clearly and convincingly establish a link

between the complaint and plea documents to justify reliance on the complaint, and

even slight differences between the two can cast doubt on that link. In Medina-

Lara, the government failed to carry its burden where the complaint included

“Count 3” but the plea was to “Count 3A,” because it was “plausible” that the “A”

stood for “amended.” 771 F.3d at 1114–15. This was despite the fact that “the

record does not contain any serious suggestion that [the petitioner] was
                                                                          Page 3 of 4
apprehended with any substance other than one controlled by federal law.” Id. at

1115; see also Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir. 2014) (holding

that we could not consider the charging papers where the original charge was for

possession but where the plea for attempted possession referred to “Modified

Count One” (emphasis added)).

      Differences between Nalangan’s charging and plea documents similarly

preclude us from finding a clear and convincing link between the documents.

While the court minutes originally referred to “COUNTS 1) F11377(A) HS” in the

complaint, that entry is crossed out and “M11377(a) HS” is handwritten next to it.

The reason for the change is apparent; contrary to the original charge, Nalangan

pleaded no contest to a misdemeanor, rather than a felony, violation of § 11377(a).

It is therefore “plausible” that the charge was amended and, under Medina-Lara,

the government has therefore failed to meet its burden of clearly and convincingly

establishing that we may rely on the complaint to determine the drug of conviction.

771 F.3d at 1114–15.

      We grant the petition for review, vacate the order of removal, and remand

the matter to the BIA for disposition consistent with this memorandum.

      The government shall bear the costs for this petition for review.
                                              Page 4 of 4
    PETITION FOR REVIEW GRANTED; ORDER OF REMOVAL

VACATED; AND REMANDED.
                                                                            FILED
Nalangan v. Holder, No. 10-71123                                            APR 07 2015

                                                                       MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting:                                     U.S. COURT OF APPEALS



      I respectfully dissent. The charging document alleged that Nalangan

violated California Health & Safety Code § 11377(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.
