United States v. Arturo Albino-Loe

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50428
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-03935-
WQH-1
ARTURO ALBINO-LOE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
February 5, 2014—Pasadena, California
Filed April 7, 2014
Before: Mary M. Schroeder and Richard R. Clifton, Circuit
Judges, and John R. Tunheim, District Judge.*
Opinion by Judge Clifton
*
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2 UNITED STATES V. ALBINO-LOE
SUMMARY**
Criminal Law
The panel affirmed a conviction and sentence for being a
deported alien found in the United States.
The panel held that the statements made in a Notice to
Appear, the document filed by the government to initiate
removal proceedings, are not testimonial, and that admission
of the Notice at trial therefore did not violate the defendant’s
rights under the Confrontation Clause.
The panel rejected the defendant’s Confrontation Clause
challenge to the admissibility of certifications of authenticity
for the defendant’s A-File documents, held that an erroneous
in-court identification of the defendant was harmless, and
concluded that a Border Patrol agent’s testimony regarding
Form I-212 did not affect the defendant’s substantial rights.
The panel held that the district court did not err
in imposing an enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) on the ground that the defendant’s prior
California convictions for attempted murder and kidnaping
qualified as crimes of violence under the categorical
approach, notwithstanding variations between California and
other jurisdictions as to the availability of an affirmative
defense of voluntary abandonment. The panel explained that
this court’s previous holdings that a variation in affirmative
defenses does not affect whether a conviction qualifies under
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALBINO-LOE 3
the categorical approach remain valid after Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013).
COUNSEL
Kent D. Young, Federal Defenders of San Diego, Inc., San
Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and A. Dale Blankenship (argued),
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant-Appellant Arturo Albino-Loe was convicted
by jury trial of being a deported alien found in the United
States. He raises various evidentiary and Confrontation
Clause challenges to his conviction and a challenge to the
imposition of a sentencing enhancement for a prior crime of
violence. We affirm.
In challenging his conviction, Albino-Loe contends,
among other things, that the admission into evidence during
his criminal trial of a Notice to Appear, the document filed by
the government to initiate removal proceedings before an
immigration judge, violated his rights under the
Confrontation Clause. We disagree, concluding that the
statements made in a Notice to Appear are not testimonial.
4 UNITED STATES V. ALBINO-LOE
In addition, Albino-Loe argues that the district court erred
in calculating the advisory range under the Sentencing
Guidelines by applying an enhancement for a previous
conviction for a crime of violence. Albino-Loe does not
dispute that he was previously convicted of attempted murder
and kidnaping under California law. He contends, however,
that those California convictions should not qualify as crimes
of violence under the applicable categorical approach because
California does not provide for an affirmative defense of
voluntary abandonment to a charge of attempt, though that
defense is available in most jurisdictions and under the Model
Penal Code. Albino-Loe acknowledges that our court has
previously held that a variation in affirmative defenses does
not affect whether a conviction qualifies under the categorical
approach, but he argues that these precedents are
irreconcilable with the Supreme Court’s recent decision in
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). We disagree
and hold that our precedents on that subject remain valid.
I. Background
Albino-Loe is an alien previously convicted of various
crimes in California, including attempted murder and
kidnaping. Removal proceedings were initiated against him
in September 2010, and he was ordered removed as an
aggravated felon. He was physically removed to Mexico on
June 6, 2011. One month later, on July 6, 2011, Albino-Loe
was arrested in the United States near the Mexican border. He
was then charged with being a deported alien found in the
United States in violation of 8 U.S.C. § 1326.
At trial, the first government witnesses were the U.S.
Border Patrol (“USBP”) agent who arrested him and the
agent who booked him. They identified him in court, and the
UNITED STATES V. ALBINO-LOE 5
booking agent testified to taking his fingerprints on a card
that was then admitted into evidence. They testified regarding
Albino-Loe’s admissions concerning his alienage and his
illegal presence in the United States.
USBP Agent Suzanne Clark was the third government
witness. She testified that she was familiar with immigration
proceedings and that she was the custodian for the
government’s permanent immigration record (the “A-File”)
containing all immigration documents related to Albino-Loe.
She testified as to Albino-Loe’s unique alien registration
number (the “A-Number”). She further testified that she had
reviewed his A-File in preparation for testifying.
Based on the photographs contained in the A-File, Agent
Clark identified Albino-Loe as the subject of the A-File she
reviewed. The defense objected to this in-court identification
“as to foundation. Lack of personal knowledge.” The
objection was overruled and, on cross-examination, it was
made clear that Agent Clark had never met nor had any kind
of personal contact with Albino-Loe.
Agent Clark further testified about deportation
procedures, from the initial Notice to Appear through the
process that would be required to apply for permission to
reenter after deportation. Through her, the government
introduced four documents from Albino-Loe’s A-File,
including the Notice to Appear and the Warrant of Removal,
each authenticated as originals or true and correct copies
thereof by a certification from a Department of Homeland
Security official who did not testify. The certifications each
stated that the records being authenticated “relat[ed] to
immigration matters in File No. A#044-127-899, pertaining
to Arturo ALBINO-Loe (AKA Arturo Albino).” The defense
6 UNITED STATES V. ALBINO-LOE
objected to introduction of these documents on Confrontation
Clause grounds, among others. The documents were admitted
into evidence over these objections.
Agent Clark also testified that the only way a deported
alien can reapply for permission to reenter the United States
is through Form I-212, and that she looked for but found no
Form I-212 in Albino-Loe’s A-File. She further testified that
she looked through the USBP’s Computer Linked Automated
Information Maintenance System (“CLAIMS”) and “did not
find any application or anything to do with this individual
requesting permission to come back.” The defense elicited
testimony from Agent Clark that a deported individual could
later discover that he was a citizen and come back by simply
applying for a passport or following some process other than
filing Form I-212.
The final two witnesses were the Immigration and
Customs Enforcement agent who physically removed Albino-
Loe to Mexico in 2011 and a fingerprint technician. The
agent testified about the process of physically removing an
alien after an order of removal is entered against him. He also
testified that he affixed Albino-Loe’s fingerprint to Albino-
Loe’s Warrant of Removal, admitted into evidence as one of
the A-File documents during Agent Clark’s testimony. The
fingerprint technician testified that he compared Albino-
Loe’s fingerprints obtained after his arrest to the fingerprints
on the Notice to Appear and the Warrant of Removal from
the A-File and found a match.
Albino-Loe did not call any witnesses. The jury found
him guilty.
UNITED STATES V. ALBINO-LOE 7
In calculating Albino-Loe’s advisory range under the
Sentencing Guidelines, the district court imposed a 16-level
sentencing enhancement for a prior crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A) based on his prior California
convictions for attempted murder and kidnaping. Including
the enhancement, Albino-Loe was sentenced to 78 months’
imprisonment.
On appeal, Albino-Loe challenges his conviction and
sentence. We have jurisdiction to review Albino-Loe’s
conviction and sentence under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.1II. Albino-Loe’s Conviction
Albino-Loe’s most substantial challenge to his conviction
is his Confrontation Clause argument against the
admissibility of the Notice to Appear. He also raises a
Confrontation Clause challenge to the admissibility of the
certifications of authenticity for the A-File documents, as
well as evidentiary challenges to the admissibility of Agent
Clark’s in-court identification of Albino-Loe and her
testimony regarding Form I-212. We are unpersuaded by any
of Albino-Loe’s arguments.
We review alleged Confrontation Clause violations de
novo. United States v. Bustamante, 687 F.3d 1190, 1193 (9th
Cir. 2012). We generally review evidentiary rulings for abuse
of discretion. See United States v. Morales, 720 F.3d 1194,
1
Two motions to supplement the record are also before us. We deny as
moot the parties’ joint motion to supplement the record. We further deny
Albino-Loe’s motion to supplement the record with material never
presented to the district court. See Fed. R. App. P. 10.
8 UNITED STATES V. ALBINO-LOE
1199 (9th Cir. 2013). Even where evidence was improperly
admitted, we may nevertheless affirm if the error was
harmless. See id.A. The Confrontation Clause and Notices to Appear
The main dispute relates to whether the statements
concerning Albino-Loe’s alienage contained in the Notice to
Appear are testimonial under Crawford v. Washington,
541 U.S. 36 (2004). The Notice to Appear was the document
used by the government to commence the removal proceeding
against Albino-Loe in immigration court. It contains
allegations by the government that Albino-Loe was an alien,
not a citizen of the United States. Crawford held that the
Confrontation Clause bars admission of testimonial
statements unless the declarant is unavailable to testify and
the defendant previously had an opportunity to cross-examine
the declarant. Id. at 68. The person who prepared Albino-
Loe’s Notice to Appear did not testify at his criminal trial and
was not subject to cross-examination.
Although the Supreme Court in Crawford did not define
what makes a statement testimonial, it noted that a core class
of testimonial statements may be defined as “ex parte in-court
testimony or its functional equivalent—that is, material such
as affidavits . . . or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.” Id. at 51(citation omitted). Since Crawford, the Supreme Court has
noted that a statement in a public or business record is
not testimonial where the record was not created “for the
purpose of establishing or proving some fact at trial.”
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539–40
(2009). More recently, the Supreme Court has also noted that
“[a] document created solely for an ‘evidentiary
UNITED STATES V. ALBINO-LOE 9
purpose,’ . . . made in aid of a police investigation, ranks as
testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705,
2717 (2011).
This court has applied the Supreme Court’s
pronouncements to the particular context of A-File
documents. Although we have never addressed statements
contained in a Notice to Appear, we have addressed
statements in the similar context of a Notice of
Intent/Decision to Reinstate Prior Order (“Form I-871”),
which also contains statements regarding alienage. See United
States v. Rojas-Pedroza, 716 F.3d 1253, 1269 (9th Cir. 2013).
Albino-Loe argues that a Notice to Appear is different from
Form I-871 in that the former is made in anticipation of
litigation while the latter is not, given that a Form I-871 is
necessarily generated after immigration proceedings. We
disagree. As the court reasoned in Rojas-Pedroza, the
statements regarding alienage contained in Form I-871 are not
testimonial because agency regulations require immigration
officers to complete such a notice, the statements are “the
ordinary contents of” such a notice, and the primary purpose
of such a notice is simply “to effect removals, not to prove
facts at a criminal trial.” Id. Applying Rojas-Pedroza’s logic,
a Notice to Appear is virtually indistinguishable: immigration
law requires immigration officers to prepare a Notice to
Appear, see 8 U.S.C. § 1229(a)(1), the Notice to Appear must
include charges against the alien (including of course his
alienage), id. § 1229(a)(1)(D), and the Notice to Appear only
initiates removal proceedings. This is so even though both a
Notice to Appear and Form I-871 may later be used to prove
facts in criminal prosecutions. See Rojas-Pedroza, 716 F.3d
at 1269. Therefore, we hold that statements made in a Notice
to Appear are not testimonial under Crawford.
10 UNITED STATES V. ALBINO-LOE
We add that the Supreme Court’s pronouncement that a
statement is testimonial where it is created for an evidentiary
purpose further supports our conclusion. See Bullcoming,
131 S. Ct. at 2717. A Notice to Appear, like a complaint in a
civil case or an indictment in a criminal case, is simply a
charging document. The allegations made against the alien in
a Notice to Appear are merely that—allegations. They are not
meant to be evidence. Cf. Ninth Circuit Model Criminal Jury
Instruction 1.2 (2014) (“The charge[s] against the defendant
[is] [are] contained in the indictment. The indictment simply
describes the charge[s] the government brings against the
defendant. The indictment is not evidence and does not prove
anything.”). The mere fact that a Notice to Appear is prepared
in anticipation of immigration proceedings is therefore
irrelevant.2
B. Other Challenges to Albino-Loe’s Conviction
Albino-Loe argues that admitting the certifications of
authenticity violated his Confrontation Clause rights. We
have however already held that “a routine certification by the
custodian of a domestic public record . . . and a routine
attestation to authority and signature . . . are not testimonial
in nature.” United States v. Weiland, 420 F.3d 1062, 1077
(9th Cir. 2005). The certifications at issue here did not
accomplish anything other than authenticating the A-File
documents to which they were attached. In particular, they
did not explicitly state anything about Albino-Loe’s alienage.
The identification of the attached documents by A-Number
and name is a permissible way to identify the documents
being authenticated. We therefore reject Albino-Loe’s
2
Our holding concerns a Notice to Appear and does not necessarily
cover all documents contained in an A-File.
UNITED STATES V. ALBINO-LOE 11
Confrontation Clause challenge to the admissibility of the
certifications.
Albino-Loe also argues that Agent Clark’s in-court
identification of him as the person in the A-File photograph
was evidentiary error. An in-court identification is
permissible under Federal Rule of Evidence 701(b) only if the
“witness has had ‘sufficient contact with the defendant to
achieve a level of familiarity that renders the lay opinion
helpful.’” United States v. Beck, 418 F.3d 1008, 1015 (9th
Cir. 2005) (quoting United States v. Henderson, 241 F.3d
638, 650 (9th Cir. 2001)). Because Agent Clark had very
limited familiarity with Albino-Loe, her in-court
identification was impermissible. See United States v.
LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993). However,
given the overwhelming evidence of Albino-Loe’s identity,
including other in-court identifications and fingerprint
evidence, this error was harmless.
Albino-Loe finally argues that Agent Clark’s testimony
regarding Form I-212 was impermissible expert testimony
under Federal Rule of Evidence 702 because it required
expertise in immigration law. Albino-Loe did not object to
this testimony below and we therefore review only for plain
error. See United States v. Hayat, 710 F.3d 875, 893 (9th Cir.
2013). Under plain error review, reversal is only warranted
where there is “(1) an error; (2) that was plain; and (3) that
affected the defendant’s substantial rights.” Id. at 895(quoting United States v. Tran, 568 F.3d 1156, 1163 (9th Cir.
2009)). Here, we need only reach the third prong. Because
Agent Clark permissibly testified that she looked in the
CLAIMS system and could not find any document evidencing
an application for permission to reenter, what she said about
Form I-212, although perhaps impermissible expert
12 UNITED STATES V. ALBINO-LOE
testimony, did not affect the outcome of the proceedings. In
addition, Albino-Loe’s own admissions to his arresting
officers regarding his lack of permission to reenter further
support this conclusion. In sum, Albino-Loe’s substantial
rights were not affected by Agent Clark’s testimony regarding
Form I-212.3
III. Albino-Loe’s Sentence
Albino-Loe argues that, given Moncrieffe v. Holder,
133 S. Ct. 1678 (2013), his prior conviction in California
does not categorically qualify as a crime of violence
warranting a 16-level sentencing enhancement under section
2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines. His
argument goes as follows. He admits that he was convicted in
California of attempted murder and kidnaping. He argues,
however, that because California does not provide for the
affirmative defense of voluntary abandonment to a charge of
attempt that is available in a majority of jurisdictions and
under the Model Penal Code, the crime of attempt under
California law is categorically overbroad when compared
with the generic offense. Although Albino-Loe recognizes
that our precedents exclude consideration of affirmative
defenses as part of the categorical approach, he argues that
these precedents are clearly irreconcilable with Moncrieffe
and that we may therefore reject our precedents as having
been effectively overruled by Moncrieffe. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). The
government does not dispute that the generic affirmative
defense of voluntary abandonment is not available in
3
For the same reasons, Albino-Loe’s claim of cumulative prejudicial
errors fails. See United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th
Cir. 2004).
UNITED STATES V. ALBINO-LOE 13
California, but argues that our precedents bar us from
considering such an affirmative defense and that those
precedents were not affected by Moncrieffe.
We review the application of the prior crime of violence
enhancement de novo. See United States v. Gonzalez-
Monterroso, No. 12-10158, 2014 WL 575952, at *3 (9th Cir.
Feb. 14, 2014). We need not engage in a thorough discussion
of the categorical approach, because the only question
presented by this appeal is a narrow one: whether our
precedents excluding consideration of affirmative defenses as
part of the categorical approach are clearly irreconcilable
with Moncrieffe. We conclude that they are not. We are thus
bound by our precedents, which require affirming Albino-
Loe’s sentence.
Our precedents bar consideration of affirmative defenses
as part of the categorical approach. United States v.
Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010); United
States v. Charles, 581 F.3d 927, 935 (9th Cir. 2009). The
Supreme Court’s decision in Moncrieffe came later and could
supersede our precedents, but that decision said nothing about
affirmative defenses. Moncrieffe instead concerned a narrow
exception to the drug trafficking offenses typically warranting
removal under the Immigration and Nationality Act (“INA”)
as aggravated felonies: the “social sharing of a small amount
of marijuana” exception. 133 S. Ct. at 1682. This exception
turned what would otherwise be the felony of possession of
a controlled substance with intent to distribute into a
misdemeanor, which is not an aggravated felony under the
INA. See id. at 1686–87.
Importantly, in addressing this exception, Moncrieffe did
not change the core feature of the categorical approach: its
14 UNITED STATES V. ALBINO-LOE
focus on the minimal conduct that would satisfy the statutory
definition of the offense of conviction. See Taylor v. United
States, 495 U.S. 575, 600 (1990) (describing the categorical
approach as “looking only to the statutory definitions of the
prior offenses”). Moncrieffe thus turned on the fact that the
Controlled Substances Act (“CSA”) defined the felony of
possession with intent to distribute only by excluding sharing
of small amounts of marijuana for no remuneration. See
133 S. Ct. at 1686. The crime of possession of marijuana with
intent to distribute as defined in Georgia’s statutes, however,
did not contain such an exception, and conduct punishable
under Georgia law thus “did not ‘necessarily’ involve facts
that correspond to an offense punishable as a felony under the
CSA.” Id. at 1687. As defined in that particular federal
statutory framework, “[m]arijuana distribution is neither a
felony nor a misdemeanor until we know whether the
conditions [for the social sharing exception] attach.” Id. at
1687–88. The Supreme Court thought its conclusion in
Moncrieffe compelled by Carachuri-Rosendo v. Holder,
130 S. Ct. 2577 (2010): “we made clear in Carachuri-
Rosendo that . . . a generic federal offense may be defined by
reference to both ‘“elements” in the traditional sense’ and
sentencing factors.” Moncrieffe, 133 S. Ct. at 1689 (emphasis
added) (quoting Carachuri-Rosendo, 130 S. Ct. at 2584); see
also id. at 1687 (“In other words, not only must the state
offense of conviction meet the ‘elements’ of the generic
federal offense defined by the INA, but the CSA must punish
that offense as a felony.”). This was so because the generic
offense was defined only by reference to the social sharing
exception contained in the CSA.
Although Albino-Loe characterizes the social sharing
exception as “an affirmative sentencing defense,” the
exception was not an affirmative defense, but only a
UNITED STATES V. ALBINO-LOE 15
sentencing factor that was part of the definition of the offense
of conviction. Indeed, the factor defined whether the offense
was a misdemeanor or a felony. Which party bore the burden
of proving the presence or absence of the sentencing factor in
the prior criminal prosecution was irrelevant to the Supreme
Court’s analysis. See id. at 1688–89.
The generic offense at issue here, attempt, is not defined
with reference to sentencing factors or affirmative defenses.
See Gonzalez-Monterroso, 2014 WL 575952, at *4 (“We
have defined ‘attempt’ as requiring ‘[1] an intent to commit’
the underlying offense, along with ‘[2] an overt act
constituting a substantial step towards the commission of the
offense.’” (quoting Hernandez-Cruz v. Holder, 651 F.3d
1094, 1100 (9th Cir. 2011)) (alterations in original)); see also,
e.g., Model Penal Code § 5.01(1). Moncrieffe therefore does
not speak to the situation presented here. While Moncrieffe
tells us that sentencing factors must be considered as part of
the categorical approach in at least some circumstances,
Moncrieffe did not disturb the categorical approach’s focus on
the comparison between the definition of the offense of
conviction and the definition of the generic offense. Under
binding Ninth Circuit precedent, any extraneous affirmative
defenses are therefore irrelevant to the categorical approach.
The Supreme Court’s brief reference to the firearms
offenses and the antique firearms exception does not change
our conclusion. See Moncrieffe, 133 S. Ct. at 1693. Besides
being only dictum, this reference merely reinforces what
Moncrieffe discussed at length in the drug trafficking context
and remains consistent with the categorical approach’s focus
on definitions of criminal offenses. Indeed, the antique
firearms exception appears in 18 U.S.C. § 921, a section titled
“Definitions.” See 18 U.S.C. § 921(a)(3) (“The term ‘firearm’
16 UNITED STATES V. ALBINO-LOE
means (A) any weapon (including a starter gun) which will or
is designed to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive device. Such term
does not include an antique firearm.” (emphasis added)). One
cannot know what conduct constitutes a firearms offense
without knowing the definition of “firearm,” which excludes
antique firearms. Here, a generic attempt is defined as an
intent to commit an underlying crime and an overt act
constituting a substantial step. See Gonzalez-Monterroso,
2014 WL 575952, at *4. We need not know whether the
voluntary abandonment defense is available to know what
conduct is sufficient to satisfy the generic definition of
attempt. California defines attempt to be the same as the
generic offense. See United States v. Saavedra-Velazquez,
578 F.3d 1103, 1107–10 (9th Cir. 2009). There is thus a
categorical match, and the district court did not err in
imposing an enhancement for a prior crime of violence.
IV. Conclusion
We reject Albino-Loe’s challenges to his conviction and
sentence. In so doing, we hold that statements made in a
Notice to Appear are not testimonial and we reaffirm the
continuing vitality of our precedents barring consideration of
affirmative defenses as part of the categorical approach.
AFFIRMED.