United States v. Calderon-Segura ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50820
v.
 D.C. No.
CR-05-00381-TJW
ABRAHAM CALDERON-SEGURA,
A.K.A. Abraham Calderon, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
December 7, 2006—Pasadena, California
Filed January 9, 2008
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Melvin Brunetti, Circuit Judges.
Opinion by Judge Brunetti
321
UNITED STATES v. CALDERON-SEGURA 325
COUNSEL
James Fife and Zaki Zehawi, Federal Defenders of San Diego,
Inc., San Diego, California, for the defendant-appellant.
Hamilton E. Arendsen, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
BRUNETTI, Circuit Judge:
Abraham Calderon-Segura, a native and citizen of Mexico,
was arrested in 2005 by United States Border Patrol agents
after they found him hiding in the brush about one mile north
of the U.S.-Mexico border. He was indicted by a grand jury
and convicted after a jury trial as an alien who had been
excluded, deported, or removed and thereafter found in the
United States, in violation of 8 U.S.C. § 1326. The evidence
admitted at his trial included, among other things, documents
showing that in 1999 he was ordered deported and was
removed from the United States, and the testimony of a fin-
gerprint expert that a fingerprint exemplar taken from
Calderon-Segura matched the exemplar on his 1999 warrant
of removal, which positively identified him as the same per-
son who was previously deported.
For purposes of sentencing, the government submitted evi-
dence of multiple prior convictions, including a 1997 convic-
tion in California for forcible rape. Over Calderon-Segura’s
objections, the district court relied on that aggravated felony
conviction to increase the applicable statutory maximum from
326 UNITED STATES v. CALDERON-SEGURA
two years under 8 U.S.C. § 1326(a) to twenty years under
§ 1326(b)(2) (applying to defendants “whose removal was
subsequent to a conviction for commission of an aggravated
felony”). Applying the Sentencing Guidelines as advisory, the
court ultimately sentenced Calderon-Segura to 94 months
imprisonment.
Calderon-Segura raises three issues on appeal. He collater-
ally attacks the validity of his prior deportation on due process
grounds; contends that the expert testimony on exemplar fin-
gerprint examination should have been excluded as unreli-
able; and contends that the application of an enhanced
statutory maximum under 8 U.S.C. § 1326(b) violated the
Fifth and Sixth Amendments because the facts necessary to
sustain the enhancement were neither pleaded in the indict-
ment nor proved to the jury. We find no merit in these claims,
except the claim of indictment error relating to the sentence,
which has some merit but is nonetheless harmless beyond a
reasonable doubt. Accordingly, we affirm the conviction and
sentence.
I
Collateral Attack
Before trial, Calderon-Segura moved to dismiss the indict-
ment pursuant to 8 U.S.C. § 1326(d) on the ground that his
1999 removal, which was the product of expedited proceed-
ings conducted pursuant to 8 U.S.C. § 1228(b), violated due
process. We review the denial of such a motion to dismiss de
novo. United States v. Camacho-Lopez, 450 F.3d 928, 929
(9th Cir. 2006).
[1] Although there are three requirements for a collateral
attack on an underlying deportation order, in this case the par-
ties dispute only whether “the entry of the order was funda-
mentally unfair.” 8 U.S.C. § 1326(d)(3). “An underlying
removal order is ‘fundamentally unfair’ if: ‘(1) a defendant’s
UNITED STATES v. CALDERON-SEGURA 327
due process rights were violated by defects in his underlying
deportation proceeding, and (2) he suffered prejudice as a
result of the defects.’ ” United States v. Ubaldo-Figueroa, 364
F.3d 1042, 1048 (9th Cir. 2004) (brackets and citation omit-
ted).
Calderon-Segura first contends that 8 U.S.C. § 1228(b)(1)
violates equal protection by granting the Attorney General
seemingly unfettered discretion to choose between expedited
removal proceedings under § 1228(b) or general removal pro-
ceedings under 8 U.S.C. § 1229a in cases involving similarly-
situated non-lawful permanent resident aliens (non-LPRs)
with aggravated felony convictions.1 He argues that the Attor-
ney General’s decision to place him in expedited proceedings
deprived him of review by an immigration judge and eligibil-
ity for discretionary relief from removal, both of which would
have been afforded in general removal proceedings. See id.
§§ 1182(a), 1229a(a)(1). Expedited proceedings are con-
ducted by a Service officer, not an immigration judge, and the
alien is statutorily deemed ineligible for any discretionary
relief from removal. 8 U.S.C. § 1228(b)(5); United States v.
Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000); 8 C.F.R.
§ 1238.1.
[2] “It is well established that all individuals in the United
States—citizens and aliens alike—are protected by the Due
Process Clause of the Constitution. It is equally well estab-
lished that the Due Process Clause incorporates the guarantees
of equal protection.” Garberding v. INS, 30 F.3d 1187, 1190
(9th Cir. 1994). Nonetheless, as there is no assertion here that
the Attorney General’s discretion implicates fundamental
1
Section 1228(b)(1) provides: “The Attorney General may, in the case
of an alien [not lawfully admitted for permanent residence], determine the
deportability of such alien under section 1227(a)(2)(A)(iii) of this title
(relating to conviction of an aggravated felony) and issue an order of
removal pursuant to the procedures set forth in this subsection or section
1229a of this title.”
328 UNITED STATES v. CALDERON-SEGURA
rights or involves a classification along suspect lines, only
rational basis scrutiny applies. See Taniguchi v. Schultz, 303
F.3d 950, 957 (9th Cir. 2002); Tapia-Acuna v. INS, 640 F.2d
223, 225 (9th Cir. 1981).
[3] We agree with the Fifth and Eighth Circuits that a ratio-
nal basis exists for granting the Attorney General discretion
to place some non-LPR aggravated felons into expedited
removal proceedings and others into potentially more lenient
general removal proceedings. Gonzalez v. Chertoff, 454 F.3d
813, 818 (8th Cir. 2006); Flores-Ledezma v. Gonzales, 415
F.3d 375, 381-82 (5th Cir. 2005). As those courts have recog-
nized, the aliens described in § 1228(b) “include many per-
sons who could rationally be granted special deference and
courtesy under the immigration laws: ambassadors, diplomats,
employees of foreign governments, journalists, scholars,
teachers, and professors, among others.” Flores-Ledezma, 415
F.3d at 381, quoted in Gonzalez, 454 F.3d at 818. To para-
phrase our decision in Taniguchi, 303 F.3d at 958, although
it might have been wiser, fairer, and more efficacious for
Congress to have deemed all non-LPR aggravated felons inel-
igible for the benefits available in general removal proceed-
ings, the decision of Congress was nonetheless a rational first
step towards the legitimate goal of rapidly removing criminal
aliens. We therefore conclude that 8 U.S.C. § 1228(b)(1) does
not violate equal protection.
As a “second, independent” basis for invalidating his prior
removal, Calderon-Segura contends that his due process rights
were violated because he was not advised of his eligibility for
two forms of discretionary relief. Specifically, he claims he
should have been advised that he could voluntarily withdraw
his application for admission and freely depart the country
pursuant to 8 U.S.C. § 1225(a)(4), or that he could apply for
a waiver under 8 U.S.C. § 1182(h) as the father of four chil-
dren who are United States citizens.
[4] But even if Calderon-Segura might have otherwise
qualified for such relief, neither was “a ‘plausible’ ground for
UNITED STATES v. CALDERON-SEGURA 329
relief from deportation” once he was placed in expedited
removal proceedings. Ubaldo-Figueroa, 364 F.3d at 1050.
Both forms of relief are expressly conditioned on the Attorney
General’s exercise of “discretion.” 8 U.S.C. §§ 1182(h),
1225(a)(4). Yet, as a non-LPR aggravated felon subject to
expedited removal, Calderon-Segura was statutorily ineligible
for any discretionary relief. Id. § 1228(b)(5). We therefore
conclude that the agency’s failure to advise him of discretion-
ary relief that he was statutorily barred from obtaining neither
violated his due process rights, nor was it prejudicial. Cf.
United States v. Garcia-Martinez, 228 F.3d 956, 963-64 (9th
Cir. 2000) (holding that the defendant’s prior expedited
removal did not violate due process by virtue of the presiding
officer’s institutional bias, but even if it did the statutory bar
of § 1228(b)(5) precluded a showing of actual prejudice).
[5] Because Calderon-Segura has failed to show the requi-
site due process violation and prejudice to establish that his
prior removal was “fundamentally unfair” under 8 U.S.C.
§ 1326(d)(3), the district court properly denied the motion to
dismiss the indictment.
II
Expert Testimony on Fingerprint Identification
Calderon-Segura contends that the district court erred in
admitting at trial expert testimony on fingerprint identifica-
tion, which the government presented to prove the fact of his
1999 removal. The government’s expert was an instructor in
fingerprint identification and testified that an inked thumb-
print exemplar he took from Calderon-Segura matches the
inked thumbprint appearing on his 1999 warrant of removal.
Calderon-Segura originally raised his objection in a motion
in limine, contending that fingerprint identification testimony
does not satisfy the test of evidentiary reliability or scientific
validity required by Federal Rule of Evidence 702 and Dau-
330 UNITED STATES v. CALDERON-SEGURA
bert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590
n.9, 593 (1993), and is unduly prejudicial under Federal Rule
of Evidence 403. The district court reviewed Calderon-
Segura’s documentary evidence and heard oral argument on
the motion, but it denied both his request for a full “Daubert
hearing” and the motion itself. The court explained that the
motion in limine was based almost exclusively on evidence
demonstrating the unreliability of latent fingerprint identifica-
tion, whereas this case involved only the examination of two
inked fingerprints, the reliability and admissibility of which is
long-established. As the expert testified, a latent print must be
developed or “dusted” using chemicals and then lifted from
whatever surface it happens to be on to enable examination,
whereas an inked fingerprint is taken under controlled circum-
stances using an ink pad and white paper and it produces a
black and white image that is sufficient for examination. But
while the court denied the motion to exclude, it did afford the
defense the opportunity to voir dire the government’s expert
before trial and to cross-examine him during trial regarding
his qualifications and his comparison of the exemplar finger-
prints in this case.
We review the district court’s decision to admit expert tes-
timony for an abuse of discretion. United States v. Alatorre,
222 F.3d 1098, 1100 (9th Cir. 2000). This includes not only
the court’s ultimate admissibility determination under Dau-
bert and Rule 702, but also its decisions regarding the type of
proceedings required to conduct the gatekeeping inquiry in a
particular case. See id. at 1101, 1105. We find no abuse of
discretion here.
[6] Calderon-Segura’s contention that the demonstrated
problems with latent fingerprint identification apply equally
to exemplar fingerprints is unsupported by the evidence sub-
mitted in support of his motion in limine. Cf. Daubert, 509
U.S. at 591 (stating that “scientific validity for one purpose is
not necessarily scientific validity for other, unrelated pur-
poses”). The record evidence and even Calderon-Segura’s
UNITED STATES v. CALDERON-SEGURA 331
own arguments suggest the contrary. And, more importantly,
he fails to show that any of the asserted problems affected the
fingerprint identification in this case. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (“[T]he
gatekeeping inquiry must be tied to the facts of a particular
case.” (quotation marks and citation omitted)).
For instance, he argues that “there has never been any
[empirical] testing to establish the reliability of identifications
which are made from latent fingerprint fragments.” Yet the
fingerprints in this case were exemplars taken under con-
trolled circumstances and were complete, not fragmented. As
other courts have recognized, fingerprint identification meth-
ods have been tested in the adversarial system for roughly a
hundred years. See United States v. Crisp, 324 F.3d 261, 266
(4th Cir. 2003).
Calderon-Segura also argues that there are many real-life
examples of false identifications and “a shockingly high rate
of misidentifications on latent print examiner proficiency
exams.” Yet he fails to show that the same can be said of
comparisons involving two inked fingerprints. Although the
methods for examining ridge details of latent prints and inked
prints are basically the same, latent prints must first be devel-
oped and lifted from any variety of surfaces, are ordinarily
less clear than inked prints, and may have fewer available
points of comparison due to smudging or fragmentation—all
of which increase the potential for errors and misidentifica-
tions. Moreover, although he offers evidence that inked prints
can be less clear than latent prints in some cases, Calderon-
Segura has failed to show that the exemplars at issue in this
case lacked clarity, were fragmented, or contained any other
defects or artifactual interference that might call into question
the accuracy or reliability of their identification.
He next argues that “there is complete disagreement among
fingerprint examiners as to how many points of comparison
are necessary to make an identification,” and that “there is no
332 UNITED STATES v. CALDERON-SEGURA
relevant scientific community, beyond fingerprint examiners
themselves, that have displayed any kind of general accep-
tance for the proposition that reliable identification can be
made from small distorted latent fingerprint fragments.” But,
again, this case did not involve fragments, and the govern-
ment’s expert positively matched the two exemplars without
qualification regarding any minimal number of points of com-
parison. Indeed, without rebuttal from the defense, the expert
testified at trial that the exemplars are “identical” and that it
is impossible for two people to have the same fingerprint. Cf.
Crisp, 324 F.3d at 267 (affirming the admission of fingerprint
evidence, while noting that the expert in that case “was unable
to reference any study establishing that no two persons share
the same fingerprint; she was able only to testify that no study
had ever proven this premise false”); United States v. Hav-
vard, 117 F. Supp. 2d 848, 854 (S.D. Ind. 2000), aff’d, 260
F.3d 597, 601 (7th Cir. 2001) (“[I]f anyone were to come
across a case in which two different fingers had identical fin-
gerprints, that news would flash around the legal world at the
speed of light.”).
[7] As the district court was presented with no evidence
calling into question the evidentiary reliability of exemplar
fingerprint identification, neither generally nor regarding the
exemplars in this case, there is no merit in Calderon-Segura’s
contention that the district court abused its discretion in fail-
ing to conduct a more searching examination of the Daubert
factors or in declining his request for a full Daubert hearing.
In Kumho Tire, the Supreme Court instructed:
The trial court must have the same kind of latitude
in deciding how to test an expert’s reliability, and to
decide whether or when special briefing or other pro-
ceedings are needed to investigate reliability, as it
enjoys when it decides whether or not that expert’s
relevant testimony is reliable. . . . Otherwise, the trial
judge would lack the discretionary authority needed
to avoid unnecessary “reliability” proceedings in
UNITED STATES v. CALDERON-SEGURA 333
ordinary cases where the reliability of an expert’s
methods is properly taken for granted, and to require
appropriate proceedings in the less usual or more
complex cases where cause for questioning the
expert’s reliability arises.
526 U.S. at 152. Given the familiar subject matter and the
defense’s failure to show cause for questioning the evidenti-
ary reliability of exemplar fingerprint identification methods,
this is just the sort of routine case where evidentiary reliability
was properly taken for granted. See Crisp, 324 F.3d at 268-69
(holding that “the district court was well within its discretion
in accepting at face value the consensus of the expert and
judicial communities that the fingerprint identification tech-
nique is reliable”). The procedures adopted by the district
court for determining evidentiary reliability, and for permit-
ting the defense to inquire into the expert’s qualifications and
bases for his proffered opinions, were well within the court’s
discretion in fulfilling its gatekeeping function. See Alatorre,
222 F.3d at 1104-05. Thus, the expert testimony was properly
admitted.
III
Sentencing
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its progeny, Calderon-Segura finally contends that the
district court’s application of an enhanced statutory maximum
under 8 U.S.C. § 1326(b) violated the Fifth and Sixth Amend-
ments because the indictment did not allege, and the jury did
not find, either the date of his prior removal or the temporal
relationship between the prior removal and his prior aggra-
vated felony conviction.
[8] Notwithstanding the fact that the jury’s verdict did not
specify the date or relative timing of Calderon-Segura’s prior
removal, there is no jury trial error here. All the evidence of
334 UNITED STATES v. CALDERON-SEGURA
prior removal in this case related to only one removal that
occurred in 1999, and based on that evidence the jury found
the defendant “guilty of being a deported alien found in the
United States.” Thus, “the jury necessarily found beyond a
reasonable doubt” not only the fact of a prior removal, but
also the date of the removal and that it occurred subsequent
to his 1997 rape conviction for purposes of the § 1326(b)(2)
enhancement. United States v. Martinez-Rodriguez, 472 F.3d
1087, 1092 (9th Cir. 2007) (as amended).
The claim of indictment error raises more complex issues;
however, they are now easily resolved under our recent deci-
sion in United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir.
2007).
[9] To begin, it is now clear that there was indictment error
in this case. Under Salazar-Lopez, in order for a defendant to
be eligible for an enhanced statutory maximum under
§ 1326(b), the indictment must allege, in addition to the facts
of prior removal and subsequent reentry, either the date of the
prior removal or that it occurred after a qualifying prior con-
viction. Id. at 752. Yet the one count indictment against
Calderon-Segura included no such allegation.
[10] Nevertheless, it is equally clear under Salazar-Lopez
that such Apprendi error, which Calderon-Segura timely
raised for sentencing purposes, is subject to harmless error
review. Id. at 753. And on this record, we find the error harm-
less beyond a reasonable doubt. Aside from raising various
Apprendi-related legal objections to the pre-sentence report’s
recommendations, Calderon-Segura “made no factual attack”
on the applicability of an enhanced statutory maximum under
§ 1326(b). Id. at 755. Nor is this one of those cases “where the
record [is] too indeterminate for us to conclude what result
would have obtained had the question been properly placed
before the grand . . . jur[y].” Id. at 755-56. Given the docu-
mentary evidence proving the facts and dates of Calderon-
Segura’s prior removal and aggravated felony conviction, we
UNITED STATES v. CALDERON-SEGURA 335
are satisfied beyond a reasonable doubt that the result would
have been the same absent the error. See id. at 756.
Although Calderon-Segura also raises a variety of argu-
ments relating to the scope and continuing validity of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
the constitutionality of 8 U.S.C. § 1326(b), they are fore-
closed by existing precedent and require no special discus-
sion. See Salazar-Lopez, 506 F.3d at 751 n.3. Also, given the
state of the record, there is no factual or legal merit in the con-
tention that the government failed to submit, or the defense
failed to receive, any judicially noticeable documents to prove
the fact or nature of Calderon-Segura’s prior convictions
under Taylor v. United States, 495 U.S. 575 (1990), and Shep-
ard v. United States, 125 S. Ct. 1254, 1257 (2005).
The conviction and sentence are AFFIRMED.