Absent Proof to the Contrary, Government Does Not Have to Prove No Other Charging Document Exists to Narrow Conviction Under Modified Categorical Approach

US v. Castellon-Aragon, No. 13-41244 (5th Cir. Nov. 24, 2014) (Jolly, Jones, Africk)

Castellon-Aragon challenged the 12-level enhancement for his drug conviction, arguing that the Government presented insufficient evidence that his conviction under the broad statute, California Health and Safety Code section 11378, was for possession of methamphetamine for sale.  The panel rejects this argument largely due to the plain-error stature of the case and the absence of any evidence that Castellon-Aragon did not plea to the criminal complaint.  The criminal complaint refers to methamphetamine as the basis for his conviction.  The district court did not plainly err by “failing to require the Government to prove a negative: that no superseding charging instrument was filed such that Castellon-Aragon might have pled guilty to an offense that didn’t specify methamphetamine[.]”

This decision leaves undisturbed the analysis of the unpublished decision upon which Castellon-Aragon relied: United States v. Lopez-Cano, 516 F. App’x 350 (5th Cir. 2013) (unpublished).  In Lopez-Cano, the error was preserved.  The panel held that certain California court documents were not proper Shephard documents because they were prepared by the court and not by a judge.  The panel also held that the complaint was not a Shephard-approved document because Lopez-Cano ultimately pled to a subsequently issued information that did not specify the drug was methamphetamine.