United States v. Estrada-Eliverio

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50191
Plaintiff-Appellee, D.C. No.
v.  CR-05-01593-
LUIS ESTRADA-ELIVERIO, BTM-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
May 7, 2008—Pasadena, California
Filed October 5, 2009
Before: Raymond C. Fisher and Richard A. Paez,
Circuit Judges, and James L. Robart, District Judge.*
Opinion by Judge Paez
*The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
14293
UNITED STATES v. ESTRADA-ELIVERIO 14295
COUNSEL
Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
14296 UNITED STATES v. ESTRADA-ELIVERIO
OPINION
PAEZ, Circuit Judge:
Luis Estrada-Eliverio appeals from his conviction and 63-
month sentence imposed following a jury trial on one count
of illegal reentry in violation of 8 U.S.C. § 1326.1 In challeng-
ing his conviction, Estrada-Eliverio argues that the district
court erroneously admitted documents from his immigration
file (“A-file”) that were not properly authenticated at trial. He
contends that the district court erred by allowing authentica-
tion under Federal Rule of Evidence (“FRE”) 901 and that,
even if Rule 901 applied, the government did not satisfy the
rule’s requirements. We must determine whether the Federal
Rules of Criminal Procedure permit authentication of official
documents under FRE 901. We conclude that they do. In
addition, we hold that the district court did not abuse its dis-
cretion in admitting the A-file documents under Rule 901.
Accordingly, we affirm Estrada-Eliverio’s conviction.
Estrada-Eliverio also challenges the district court’s applica-
tion of a sixteen-level enhancement to his offense level based
on his prior conviction under California Penal Code section
245(a)(1) for assault with a deadly weapon or by means likely
to produce great bodily injury. Estrada-Eliverio argues that
this conviction was not a “crime of violence” for purposes of
sentencing enhancement under United States Sentencing
Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii), and that it was
improper to enhance his sentence on the basis of a prior con-
viction that was not charged in the indictment and that was
neither proven to a jury beyond a reasonable doubt nor admit-
ted. Because these arguments are foreclosed by opinions of
this court, we also affirm Estrada-Eliverio’s sentence.
1
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
UNITED STATES v. ESTRADA-ELIVERIO 14297
I. Background
To obtain a conviction under 8 U.S.C. § 1326, the govern-
ment had to prove as an element of the offense that Estrada-
Eliverio had previously been deported. See United States v.
Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir. 1994).
To prove Estrada-Eliverio’s prior deportation, the govern-
ment submitted three A-file2 documents: a notice of intent to
issue a final administrative removal order, a final administra-
tive removal order, and a warrant of removal or deportation.
Because the seal that normally authenticates such documents
was not visible, they could not be admitted as self-
authenticating documents under FRE 902.
Over Estrada-Eliverio’s objections, the district court
instead admitted the documents under FRE 901, based on
authenticating testimony by Marco Perez, a Border Patrol
agent. Perez testified that such documents are kept in A-files,
that the documents offered were copies of documents from
Estrada-Eliverio’s A-file, that Perez was the custodian of that
A-file, and that the documents admitted were true and correct
copies of the documents in the A-file, which Perez had per-
sonally seen. According to Estrada-Eliverio, this evidence
was critical to the jury’s guilty verdict.
In determining Estrada-Eliverio’s advisory sentencing
guidelines range, the district court applied a sixteen-level
crime of violence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). In so doing, the court found that Estrada-
Eliverio’s prior conviction for assault with a deadly weapon
or by means likely to produce great bodily injury under Cali-
2
“ ‘A-files’ are the permanent record files of persons seeking to gain cit-
izenship in the United States, which the [responsible federal agency] is
required to maintain for seventy-five years after the final adjudicative
action of the applicant.” United States v. Salazar, 455 F.3d 1022, 1023-24
(9th Cir. 2006).
14298 UNITED STATES v. ESTRADA-ELIVERIO
fornia Penal Code section 245(a)(1) was a crime of violence.
Based on the enhanced offense level, the court determined
that the advisory guidelines range was 63 to 78 months. The
court ultimately sentenced Estrada-Eliverio to 63 months in
prison.
II. Challenge to Estrada-Eliverio’s Conviction
Standard of Review
We review de novo the district court’s interpretation of the
Federal Rules of Criminal Procedure, United States v. Fort,
472 F.3d 1106, 1109 (9th Cir. 2007), and we review its deter-
mination regarding the proper authentication of evidence for
abuse of discretion, United States v. Tank, 200 F.3d 627, 630
(9th Cir. 2000).
Discussion
Estrada-Eliverio’s challenge to the district court’s evidenti-
ary rulings requires that we consider the interplay between
Federal Rule of Civil Procedure 44 and FRE 901. Although
the government could have relied on Rule 44 to authenticate
the A-file documents, it was not so restricted. As the district
court properly determined, FRE 901 provided an alternative
basis for establishing the documents’ authenticity. In light of
the evidence the government presented to meet its burden
under FRE 901, the court properly admitted the A-file docu-
ments.
[1] Federal Rule of Criminal Procedure 27 makes Federal
Rule of Civil Procedure 44 applicable in a criminal case.
United States v. Pintado-Isiordia, 448 F.3d 1155, 1157 n.1
(9th Cir. 2006) (per curiam). Under Federal Rule of Civil Pro-
cedure 44, an official record is admissible if it is an “official
publication” of the record or a copy of the record “attested by
the officer with legal custody of the record”3 and accompa-
3
The precise wording of Rule 44 differed slightly at the time of Estrada-
Eliverio’s trial. See Fed. R. Civ. P. 44 (2006) (amended 2007). The recent
UNITED STATES v. ESTRADA-ELIVERIO 14299
nied by a certificate, made under seal, that the officer has cus-
tody. Fed. R. Civ. P. 44(a). In addition, the Rule allows a
party to prove that a document is an official record “by any
other method authorized by law.” Fed R. Civ. P. 44(c).
[2] Estrada-Eliverio, relying on Chung Young Chew v.
Boyd, 309 F.2d 857, 867 (9th Cir. 1962), argues that “other
method[s] authorized by law” include only statutes and com-
mon law rules of evidence, and that the district court therefore
erred in allowing authentication pursuant to FRE 901. We
reject this argument. First, Chung Young Chew merely fol-
lowed the language of Rule 44 as it existed at that time, which
allowed authentication by “any method authorized by any
applicable statute or by the rules of evidence at common law.”
See id. at 866 n.22. Rule 44 was subsequently amended to
include the language at issue here that refers more generally
to “any other method authorized by law.” See Charles Alan
Wright & Arthur R. Miller, 9A Fed. Practice & Procedure
§ 2437 (3d ed. 2009). Second, Chung Young Chew was pub-
lished before the Federal Rules of Evidence were enacted.
The opinion therefore cannot be understood to preclude the
Federal Rules of Evidence from falling within Rule 44’s cur-
rent broad provision for authentication by “any other method
authorized by law.” Federal Rule of Civil Procedure 44
clearly permits authentication of official documents under the
Federal Rules of Evidence.
Estrada-Eliverio also contends that, even if FRE 901
applies, the government did not properly authenticate the A-
file documents and the district court thus abused its discretion
by admitting them. Specifically, Estrada-Eliverio objects that
Agent Perez did not have personal knowledge of the records’
creation.
changes to Rule 44, however, were purely stylistic. Fed. R. Civ. P. 44
advisory committee’s note (describing 2007 amendment).
14300 UNITED STATES v. ESTRADA-ELIVERIO
[3] FRE 901(b)(1) provides that a witness with knowledge
of a document can authenticate it by testifying that it is “what
it is claimed to be,” and FRE 901(b)(7) provides for authenti-
cation of a public record with “[e]vidence that [a purported
public record] . . . is from the public office where items of this
nature are kept.” A party “need only make a prima facie
showing of authenticity ‘so that a reasonable juror could find
in favor of authenticity or identification.’ ” United States v.
Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (quoting
United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.
1991)). Here, Agent Perez testified that the documents were
“what [they were] claimed to be,” namely, accurate copies of
documents he personally knew were from Estrada-Eliverio’s
A-file. FRE 901 does not require personal knowledge of a
document’s creation, but rather only personal knowledge that
a document was part of an official file. See Fed. R. Evid. 901
advisory committee’s note (“Public records are regularly
authenticated by proof of custody, without more.”). Agent
Perez’s testimony was sufficient to make a prima facie case
for authenticity. The district court therefore did not abuse its
discretion in admitting the documents on the basis of this tes-
timony.
III. Challenges to Estrada-Eliverio’s Sentence
[4] Estrada-Eliverio also alleges two legal errors at sentenc-
ing. First, he argues that the district court erred in applying a
sixteen-level enhancement to his offense level pursuant to
United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii)
based on his prior conviction for assault with a deadly weapon
or by means likely to produce great bodily injury under Cali-
fornia Penal Code section 245(a)(1). Specifically, he contends
that section 245(a)(1) does not constitute a crime of violence
for the purposes of the § 2L1.2(b)(1)(A)(ii) enhancement.
Because we held that section 245(a)(1) is categorically a
crime of violence under § 2L1.2(b)(1)(A)(ii) in United States
v. Grajeda, No. 07-50387, slip op. at 13647, 13668 (9th Cir.
Sept. 21, 2009), we reject this argument.
UNITED STATES v. ESTRADA-ELIVERIO 14301
[5] Second, Estrada-Eliverio argues that the district court
erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), in
raising the statutory maximum for a violation of 8 U.S.C.
§ 1326 on the basis of a prior conviction that was not charged
in the indictment, and was neither proven to a jury beyond a
reasonable doubt nor admitted. This argument, however, is
foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998), and this court’s subsequent cases holding that
Apprendi has not overruled Almendarez-Torres. See, e.g.,
United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th
Cir. 2007).
AFFIRMED.