                      FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT


 RANDY PENARANDA CABANTAC,                        Nos. 09-71336
 AKA Randy Reyes,                                      12-71459*
                     Petitioner,
                                                     Agency No.
                      v.                            A045-078-802

 ERIC H. HOLDER JR., Attorney                        ORDER AND
 General,                                             AMENDED
                        Respondent.                    OPINION


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

                    Petition No. 09-71336
                    Argued and Submitted
          August 9, 2011—San Francisco, California

                     Filed August 23, 2012
                    Amended August 9, 2013

       Before: Alex Kozinski, Chief Judge, Diarmuid F.
       O’Scannlain, and Carlos T. Bea, Circuit Judges.




  *
    The judges unanimously find Petition No. 12-71459, which has been
consolidated with Petition No. 09-71336, suitable for disposition without
oral argument.
2                     CABANTAC V . HOLDER

                            Order;
              Dissent to Order by Judge Murguia;
                      Per Curiam Opinion


                           SUMMARY**


                           Immigration

    The panel amended its opinion filed on August 23, 2012;
denied a petition for rehearing; denied a petition for rehearing
en banc on behalf of the court; and ordered that no further
petitions shall be entertained.

    In the amended opinion, the panel denied Randy
Cabantac’s petition for review from the Board of Immigration
Appeals’ decision finding him removable for a conviction for
possession of a controlled substance, in violation of
California Health & Safety Code § 11377(a). The panel held
that where an abstract of judgment or minute order specifies
that a defendant pleaded guilty to a particular count, the court
can consider the facts alleged in the count. The panel held
that the abstract of judgment and complaint together
established that Cabantac pleaded guilty to possession of
methamphetamine, a controlled substances offense. In the
amended opinion, the panel added a statement that the
amended abstract was not properly before the court because
it was not part of the administrative record on which the
removal order was based.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   CABANTAC V . HOLDER                        3

    Judge Murguia, joined by Judges Pregerson, Reinhardt,
Wardlaw, W. Fletcher, Paez, Christen and Hurwitz, dissented
from the denial of rehearing en banc. Judge Murguia would
rehear this case en banc to resolve the conflict it creates with
United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en
banc). Judge Murguia wrote that the panel purported to
define the circumstances under which facts alleged in a
criminal complaint may be considered to identify the
statutory phrase in an overbroad statute that was the basis for
a prior conviction, a question that was resolved in Vidal.


                         COUNSEL

Kara L. Hartzler, Florence Immigrant and Refugee Rights
Project, Florence, Arizona; Kari Elisabeth Hong, Law Offices
of Kari E. Hong, Oakland, California, for Petitioner.

Linda Y. Cheng, Francis William Fraser, Gary J. Newkirk,
Aaron R. Petty, United States Department of Justice, Civil
Division/Office of Immigration Litigation, Washington, D.C.,
for Respondent.


                           ORDER

   The opinion filed on August 23, 2012, and appearing at
693 F.3d 825, is amended as follows:

    At slip opinion page 9632, 693 F.3d at 827, replace
<Finally, it bears emphasizing that the amended abstract does
not necessarily establish that Cabantac pleaded guilty only to
the general state offense.> with <The amended abstract is not
properly before this court because it was not part of the
4                  CABANTAC V . HOLDER

administrative record on which the order of removal is based.
See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall
decide the petition only on the administrative record on which
the order of removal is based.”). However, it bears
emphasizing that even the amended abstract does not
necessarily establish that Cabantac pleaded guilty only to the
general state offense. >

    With this amendment, the panel has unanimously voted
to deny Petitioner’s petition for rehearing and petition for
rehearing en banc.

    The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. A majority of the non-recused active
judges did not vote in favor of rehearing en banc.

   The petition for rehearing and the petition for rehearing
en banc are DENIED. Judge Murguia’s dissent from the
denial of en banc rehearing is filed concurrently herewith.

    No further petitions shall be entertained.



MURGUIA, Circuit Judge, with whom PREGERSON,
REINHARDT, WARDLAW, W. FLETCHER, PAEZ,
CHRISTEN and HURWITZ, Circuit Judges, join, dissenting
from the denial of rehearing en banc:

    Immigration judges are often asked to determine whether
a person has been previously convicted of a crime that fits
into a certain category, e.g., a “controlled substance offense”
                     CABANTAC V . HOLDER                            5

or an “aggravated felony.”1 In turn, non-citizen criminal
defendants contemplating a plea offer must predict how an
immigration judge could later categorize the conviction. The
impact of this categorization can be profound—in this case,
it determines whether a 34-year-old lawful permanent
resident who has lived in the United States since he was 17
will be deported to a country in which he has no family, or
whether he will remain in this country with his father.
Unfortunately, we have provided incoherent guidance to the
immigration judges making these important decisions and to
defendants contemplating plea agreements. I would have
reheard this case en banc to resolve the conflict that it creates
with United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en
banc).

    This case required the immigration judge to determine
whether Randy Cabantac’s conviction for violating California
Health & Safety Code § 11377(a) was a “controlled substance
offense” that makes him removable under the Immigration
and Nationality Act. See 8 U.S.C § 1227(a)(2)(B)(i). Section
11377(a) punishes the possession of a number of substances,
some of which are prohibited by the Controlled Substances
Act but some of which are not. Ruiz-Vidal v. Gonzales,
473 F.3d 1072, 1076–78 (9th Cir. 2007). Thus, because
§ 11377(a) punishes conduct that is not a “controlled
substance offense” under federal law, it is a categorically
overbroad statute, requiring us to apply the modified
categorical approach to identify “which statutory phrase was
the basis for the conviction,” and determine if that statutory
phrase only prohibits conduct that would be a “controlled
substance offense.” Descamps v. United States, 133 S. Ct.

   1
     District courts are also sometimes tasked with this decision when
sentencing criminal defendants.
6                      CABANTAC V . HOLDER

2276, 2287 (2013) (quoting Johnson v. United States,
559 U.S. 133, 144 (2010)).2

    The panel here purported to define the circumstances
under which the facts alleged in a criminal complaint may be
considered by a judge in identifying the statutory phrase in an
overbroad statute that was the basis for a prior conviction.
But we have already resolved this question. In Vidal, an en
banc panel held, “[Vidal] pled guilty [] only to ‘Count 1
10851(a) VC Driving a Stolen Vehicle.’ The plea does not,
therefore, establish that Vidal admitted to all, or any, of the
factual allegations in the Complaint.’” Vidal, 504 F.3d at
1087. Vidal explained that “to identify a conviction as the
generic offense through the modified categorical approach,
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. (citation omitted).

    According to the panel here, Cabantac’s amended abstract
of judgment “indicates that he pleaded to count one of the
complaint.” Am. Op. at 14. And “that where, as here, the
abstract of judgment or minute order specifies that a
defendant pleaded guilty to a particular count of the criminal
complaint or indictment, we can consider the facts alleged in
that count.” Id. at 15. But Cabantac’s abstract of judgment
does not say “as charged in the information”—what Vidal




    2
     It appears that § 11377(a) is a divisible statute that permits the
application of the modified categorical approach. I note, however, that our
court has not yet considered the impact of Descamps on our prior analysis
of § 11377(a).
                       CABANTAC V . HOLDER                               7

called “the critical phrase,” 504 F.3d at 1087. There is simply
a box labeled “CNT.” and in that box is the number “1.”3

    Both Vidal and Cabantac pled guilty to “Count 1.”
Compare Vidal, 504 F.3d at 1807 (“He pled guilty . . . only to
‘Count 1 . . .’”); and id. at 1075 (“Vidal pled guilty . . . to
Count One. . . .”) with Appendix. The Vidal en banc panel
held that reference to “Count 1” does not allow consideration
of the allegations in the indictment. This panel holds the
opposite.4

    When we review district and immigration judges, we
often require them to provide a reasoned explanation of how
they reached their decision. See, e.g., Padgett v. Loventhal,
706 F.3d 1205, 1208 (9th Cir. 2013) (“Show your work!”).
However, the panel does not cite—let alone distinguish—
Vidal, leaving us to guess how the two cases can be




  3
     The amended abstract of judgment is attached as an appendix for
reference.

  4
    T his difference cannot be explained by the fact that Vidal entered a
plea pursuant to People v. West, 477 P.2d 409 (Cal. 1970), and therefore
did “not admit factual guilt but [pled] to avoid a more serious
punishment.” Loftis v. Almager, 704 F.3d 645, 656 (9th Cir. 2012)
(T ashima, J., dissenting, but writing for the majority in relevant part)
(collecting cases). Here, the record indicates that Cabantac also pled
guilty pursuant to People v. West and, therefore, did not admit factual
guilt. But the panel asserts that such a plea only “makes sense” if the
defendant pleads guilty to a state criminal offense “and not to a count in
the indictment.” Am. Op. at 16. W e cannot so easily undo a plea made
in state court. Vidal pled pursuant to People v. West despite the fact that
the plea referenced “Count 1.” Vidal, 504 F.3d at 1087. Like Vidal,
Cabantac pled guilty pursuant to People v. West.
8                    CABANTAC V . HOLDER

reconciled.5 I fear that the panel has created an intra-circuit
split that will inevitably require an en banc panel to resolve.
See Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477,
1479 (9th Cir. 1987) (holding that a panel faced with an intra-
circuit split must call for en banc review, which will normally
be granted). I would have reheard this case en banc to avoid
creating such a split in the first place.

    This is not the first case to create confusion about the rule
articulated in Vidal. In United States v. Valdavinos-Torres,
704 F.3d 679 (9th Cir. 2012), the defendant pled guilty to
violating California Health & Safety Code § 11378, which
also criminalizes the possession of more substances than does
federal law. According to the panel, the record in that case,
in contrast to Vidal, “unequivocally establish[ed]” that
Valdavinos-Torres’s crime involved methamphetamine, id. at
688, despite the fact that the only reference to
methamphetamine was in the complaint, id., and there is no
indication that the plea contained the critical phrase “as
charged in the indictment.”

    The Valdavinos-Torres panel also suggested that Vidal
was no longer good law in light of United States v.
Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), which
replaced the Snellenberger panel opinion that was cited in
Vidal and held that a clerk’s minute order can be considered
in the modified categorical approach. Valdavinos-Torres,
704 F.3d at 688–89. Similarly, in United States v. Leal-Vega,
680 F.3d 1160, 1168 (9th Cir. 2012), the panel considered the
impact of a guilty plea to “Count 1,” found the Snellenberger


    5
     The panel ordered the parties to be prepared to discuss Vidal at
argument and received supplemental briefing on the issue from both
parties, so it was aware of the case.
                      CABANTAC V . HOLDER                              9

en banc opinion “to be directly on point,” and declined to
follow Vidal. It is possible that the Snellenberger en banc
opinion overruled Vidal, but it remarkably fails to cite Vidal
and it seems more likely that the two cases are consistent and
addressed distinct issues. Vidal considered what language
was necessary to allow consideration of allegations in a
criminal complaint when applying the modified categorical
approach. 504 F.3d at 1087. Snellenberger considered
whether a minute order was a sufficiently reliable judicial
document to warrant consideration under the modified
categorical approach. 548 F.3d at 701–02. Snellenberger did
not argue that even if the minute order was considered, it was
insufficient to allow consideration of the complaint.

    At best, our precedent in this area of the law can be called
a mess. The lack of uniformity and clarity is particularly
troubling because “changes to our immigration law have
dramatically raised the stakes of a noncitizen’s criminal
conviction. The importance of accurate legal advice for
noncitizens accused of crimes has never been more
important.” Padilla v. Kentucky, 130 S. Ct. 1473, 1480
(2010). Often, the immigration consequences of a plea
agreement are “more important to the client than any
potential jail sentence,” id. at 1483 (quoting I.N.S. v. St. Cyr,
533 U.S. 289, 323 (2001)), but calculating those
consequences can be difficult, id. By muddying the waters in
this area of already confusing law, the panel makes this
calculation even more difficult.6 See Padilla, 130 S. Ct. at


  6
    By making the immigration consequences of a plea agreement less
clear, we increase the probability that counsel will not properly advise
defendants, risking undoing plea agreements on the basis of ineffective
assistance of counsel. See Padilla, 130 S. Ct. at 1486–87 (holding that
counsel must inform a defendant if his plea agreement risks deportation).
10                      CABANTAC V . HOLDER

1489 (Alito, J., concurring) (noting that advising criminal
defendants is difficult because “the Ninth Circuit has
conflicting opinions” relating to aggravated felonies) (quoting
R. McWhirter, ABA, The Criminal Lawyer’s Guide to
Immigration Law: Questions and Answers § 5.35 (2d ed.
2006)). Based on the current state of the law in this circuit
there is a real risk that criminal defendants will be deprived
of the intended benefit of their plea, a prospect that “‘would
seem unfair.’” Descamps, 133 S. Ct. at 2289 (quoting Taylor
v. United States, 495 U.S. 575, 601–02 (1990)).

    This unfairness underscores my concern with this case
and our development of this area of law generally. When a
criminal defendant and prosecutor are negotiating a plea, it is
important that they know the consequences of the decisions
they make in crafting the plea agreement and other
documents.7 For example, if a defendant pleads guilty to an
overbroad statute, his plea contains the phrase “Count 1,” and
“Count 1” of the complaint contains factual allegations that
indicate that the charge is for a federally recognized
controlled substance offense, does the plea represent a
conviction for a controlled substance offense? If both parties
know the answer they can negotiate accordingly. But even
the most well advised defendant, negotiating a plea with the
intention of avoiding adverse immigration consequences,


  7
    It is not just criminal defendants that are served by clear and consistent
rules regarding the immigration consequences of plea agreements. As the
Supreme Court recently observed in Padilla, “informed consideration of
possible deportation can only benefit both the State and noncitizen
defendants during the plea–bargaining process. By bringing deportation
consequences into this process, the defense and prosecution may well be
able to reach agreements that better satisfy the interests of both parties.”
130 S. Ct. at 1486. This consideration is made much more difficult when
our precedent is conflicting.
                      CABANTAC V . HOLDER                            11

could end up being deprived the benefit of that negotiation if
we ignore our own precedent and change the rules of the
game after it has already been played.

    For this reason, the clarity and predictability of our cases
is perhaps more important than the rules that they announce.
If a majority of this court thinks that Vidal is wrong, the
proper course is to go en banc and overrule it explicitly. The
current approach of some panels, which is to distinguish
Vidal beyond recognition, or to simply ignore it as this panel
does, risks depriving criminal defendants who pled guilty in
reliance on Vidal of the benefit of their plea. As it stands,
Vidal is our own Schrödinger’s cat: dead and alive at the
same time.8

    For these reasons, I dissent from the denial of rehearing
en banc.




   8
      Schrödinger’s cat, originating in quantum physics, is a symbol of
something that exists in two contradictory states at the same time. See,
e.g., TKO Equip. Co. v. C & G Coal Co., Inc., 863 F.2d 541, 545 (7th Cir.
1988) (explaining Schrödinger’s thought experiment and observing that
unlike Schrödinger’s cat, an agreement cannot be both a sale and a lease
at the same time); Montana Cannabis Indus. Ass’n v. State, 286 P.3d
1161, 1170 (M ont. 2012) (observing that unlike Schrödinger’s cat,
“marijuana possession and distribution cannot simultaneously be both
lawful and unlawful”).
12                 CABANTAC V . HOLDER

                         OPINION

PER CURIAM:

    Randy Cabantac, a native and citizen of the Philippines,
petitions for review from an order by the Board of
Immigration Appeals (“BIA”) affirming an order of removal
by the Immigration Judge (“IJ”). The IJ found Cabantac
removable for having been convicted of possession of a
controlled substance, methamphetamine, in violation of
California Health & Safety Code § 11377(a).

   We review de novo the legal question of whether
Cabantac was convicted of a controlled substances offense.
Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 n.2 (9th Cir.
2007). We deny the petition.

    The Notice to Appear alleges that Cabantac was subject
to removal for possession of a controlled substance as defined
in 21 U.S.C. § 802. See 8 U.S.C. § 1227(a)(2)(B)(i). We
must decide whether the documents of conviction establish by
clear and convincing evidence that Cabantac was convicted
of possessing methamphetamine, or whether they show he
pleaded guilty only to possession of a controlled substance
generally. The difference is important because not all
substances punishable under California Health & Safety Code
§ 11377(a) are defined in 21 U.S.C. § 802.
Methamphetamine, however, is. See 21 U.S.C. §§ 802(6),
812(a)(3) sched. III.

    The record contains three documents of conviction: the
complaint, the plea colloquy and the abstract of judgment.
The BIA, in affirming the order of removal, found the
abstract of judgment sufficient to establish that Cabantac
                   CABANTAC V . HOLDER                      13

engaged in conduct that qualifies as a controlled substance
offense. See also Kwong v. Holder, 671 F.3d 872, 879–80
(9th Cir. 2011). At the time the BIA reviewed his case, the
abstract indicated that Cabantac pleaded guilty to
“POSSESSION OF METHAMPHETAMINE.”

    Cabantac now contends that he never admitted to the type
of drug in his possession, but instead pleaded guilty only to
possession of a controlled substance in violation of California
Health & Safety Code § 11377(a). Because this statute
embraces some conduct that qualifies as a controlled
substance offense and some conduct that does not, see Ruiz-
Vidal, 473 F.3d at 1078, Cabantac asserts that the government
has not shown by clear and convincing evidence that he’s
removable for having been convicted of a controlled
substance offense. If Cabantac in fact pleaded only to the
generalized offense, he should’ve asked the state court to
amend the abstract of judgment at an earlier stage of the
proceedings. See United States v. Snellenberger, 548 F.3d
699, 702 (9th Cir. 2008) (en banc) (“A defendant can always
check the case file and ensure that any materials placed there
accurately reflect the proceedings; presumably, doing so is
part of every criminal defense lawyer’s professional
obligation.”). It was not until this court suggested it during
oral argument that Cabantac made such a request to the state
court. The amended abstract, issued by the state court in
September 2011, shows he pleaded guilty to “POSSESSION
OF A CONTROLLED SUBSTANCE.”

    Cabantac at that point asked the BIA to reopen his case
sua sponte in the interest of justice. The agency refused,
finding his motion untimely by more than two years. The
BIA reasoned that Cabantac had been represented by counsel
throughout the proceedings and could’ve secured the
14                 CABANTAC V . HOLDER

amended abstract while his case stood before the immigration
judge. Cabantac appealed the BIA’s denial and moved to
consolidate that case, No. 12-71459, with the instant appeal
from the order of removal. We grant his motion to
consolidate, and at the same time dismiss his appeal from the
BIA’s refusal to reopen his case sua sponte. This court does
not have jurisdiction to review such a decision, which is a
matter committed to agency discretion. See Mejia-Hernandez
v. Holder, 633 F.3d 818, 824 (9th Cir. 2011); 8 C.F.R.
§ 1003.2(a).

    Cabantac also brings a motion to remand so that the BIA
might consider the amended abstract, which we also deny. In
refusing to reopen his case, the BIA noted that documents of
conviction other than the abstract, including the plea colloquy
and complaint, identify the drug in Cabantac’s possession as
methamphetamine. Although the agency previously found
the abstract sufficient to sustain the removal order, this
statement shows that the BIA considered the record as a
whole in concluding that Cabantac is removable for having
been convicted of possession of a controlled substance.
Remand is unlikely to alter that conclusion and would serve
only to create delay.

    The amended abstract is not properly before this court
because it was not part of the administrative record on which
the order of removal is based. See 8 U.S.C. § 1252(b)(4)(A)
(“[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is
based.”). However, it bears emphasizing that even the
amended abstract does not necessarily establish that Cabantac
pleaded guilty only to the general state offense. The
document indicates that he pleaded to count one of the
complaint, and that count in turn states that he possessed
                   CABANTAC V . HOLDER                     15

methamphetamine in violation of California Health & Safety
Code § 11377(a).

    Cabantac questions whether we can consider the facts
alleged in the complaint. We hold that where, as here, the
abstract of judgment or minute order specifies that a
defendant pleaded guilty to a particular count of the criminal
complaint or indictment, we can consider the facts alleged in
that count. We derive this rule from Snellenberger, in which
the court read a minute order in tandem with a complaint to
conclude that the defendant’s conduct fit within the federal
definition of a crime of violence. See 548 F.3d at 701–02.
The minute order specified that the defendant pleaded guilty
to a specific count of the complaint, and that count in turn
described conduct amounting to a crime of violence. See id.
at 701. We conclude, similarly, that the abstract of judgment
and the complaint together establish that Cabantac pleaded
guilty to possession of methamphetamine.

    Cabantac cites to Ruiz-Vidal, in which we held the
charging document and abstract insufficient to establish that
the controlled substance underlying the conviction was
methamphetamine. See 473 F.3d at 1079. That case,
however, is distinguishable on its facts. The information in
Ruiz-Vidal identified the drug at issue as methamphetamine,
but the defendant did not plead guilty to either of the crimes
charged in that document; he pleaded instead to violating
California Health & Safety Code § 11377(a). Id. Because
the record contained no plea agreement or colloquy that
revealed the facts underlying the plea, the court concluded
that “there is simply no way for us to connect the references
to methamphetamine in the charging document with the
conviction.” Id. Similarly, in Martinez-Perez v. Gonzales,
417 F.3d 1022, 1029 (9th Cir. 2005), withdrawing and
16                 CABANTAC V . HOLDER

amending 393 F.3d 1018 (9th Cir. 2004), the defendant
pleaded guilty to a different offense from the one charged in
the information. Thus, the facts given in the information
could not be used to establish that his conduct amounted to an
aggravated felony.

    In contrast to the defendants in Ruiz-Vidal and Martinez-
Perez, Cabantac confirmed three times during his plea
colloquy that he was pleading guilty to count one of the
complaint. Count one specified that the substance Cabantac
possessed was methamphetamine.

    Cabantac contends that his conviction cannot support the
finding that he was convicted of a controlled substance
offense because, under People v. West, 477 P.2d 409 (Cal.
1970), a guilty plea to an offense does not necessarily mean
the defendant admitted all the facts alleged in the indictment.
Where a defendant pleads guilty to a state offense that is
broader than the generic federal crime as in Ruiz-Vidal, and
not to a count in the indictment as Cabantac did here,
Cabantac’s argument makes sense. But here the record is
clear that Cabantac pleaded guilty to possession of
methamphetamine, a controlled substance offense that
supports the order of removal.

     PETITION DENIED.
CABANTAC V . HOLDER   17




    APPENDIX
