United States v. Franklin Figueroa-Montes ( 2010 )

FILED
NOT FOR PUBLICATION OCT 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50321
Plaintiff - Appellee, D.C. No. 3:08-cr-01002-L-1
v.
MEMORANDUM *
FRANKLIN ANTONIO FIGUEROA-
MONTES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted August 31, 2010
Pasadena, California
Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.
Franklin Figueroa-Montes appeals his jury conviction and sentence for being
a deported alien found in the United States in violation of 8 U.S.C. § 1326.
Because the facts are known to the parties, we repeat them here only as necessary
to explain our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Figueroa argues that the district court erred by not dismissing the indictment
because the grand jury was improperly instructed that it was obligated to indict
upon a showing of probable cause. The grand jury instruction was not structural
error. See United States v. Navarro, 608 F.3d 529, 538 (9th Cir. 2010). Because it
was not structural error, it was rendered harmless by Figueroa’s subsequent
conviction by a jury. See United States v. Mechanik, 475 U.S. 66, 70 (1986);
Navarro, 608 F.3d at 538–40.
Figueroa argues that the admission in evidence of certain documents
violated his Sixth Amendment right to confront his accusers. As to the certificate
of nonexistence of record, the government admits that there was an error under
current Confrontation Clause law, but given all the remaining evidence adduced at
trial, we are convinced that the jury would have convicted Figueroa even if the
certificate had not been admitted. Its admission in evidence was harmless error
beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967);
United States v. Norwood, 603 F.3d 1063, 1068–69 (9th Cir. 2010). The certificate
was corroborated by and cumulative of other evidence. See United States v.
Orozco-Acosta, 607 F.3d 1156, 1161–62 (9th Cir. 2010). As for the A-file
documents, we conclude that they were not testimonial and that their admission in
evidence did not violate the Confrontation Clause. See, e.g., id. at 1163–64
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(warrant of removal was not testimonial because it was not made in anticipation of
litigation); United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir. 2006)
(routine, objective cataloging of an unambiguous factual matter was not
testimonial).
Figueroa argues that the documents and certain individual statements therein
were inadmissible hearsay. See Fed. R. Evid. 802. But the district court did not
abuse its discretion by admitting this evidence under the public records exception
to the hearsay rule. See Fed. R. Evid. 803(8). See also, e.g., United States v.
Hernandez-Herrera, 273 F.3d 1213, 1217–18 (9th Cir. 2001) (deportation
documents were public records admissible to prove alienage); United States v.
Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980) (notation of deportation was a
“ministerial, objective observation”).
Figueroa contends that the district court erred by not granting a downward
adjustment for acceptance of responsibility. See U.S.S.G. § 3E1.1. We conclude
that the district court did not err in its interpretation of the law, and we also
conclude that the district court did not commit clear error in finding that Figueroa
had not timely accepted responsibility. See, e.g., United States v. Cantrell, 433
F.3d 1269, 1284–85 (9th Cir. 2006) (district court’s decision about acceptance of
responsibility is a factual finding reviewed for clear error); United States v.
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Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004) (district court’s decision
in these circumstances is “virtually unassailable”).
Figueroa further claims that 8 U.S.C. § 1326(b) is unconstitutional. This
challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226–27 (1998). Figueroa’s claim that Almendarez-Torres has been implicitly
overruled is meritless. It remains binding precedent unless and until it is overruled
by the United States Supreme Court. E.g., Hohn v. United States, 524 U.S. 236,
252–53 (1998); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th
Cir. 2007). We may not by anticipation overrule a Supreme Court precedent on
grounds it has been undermined by later precedent. See Agostini v. Felton, 521
U.S. 203, 237 (1997).
AFFIRMED.
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