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U.S. v Albino-Loe

Case No. 12-50428 (C.A. 9, Apr. 7, 2014)

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.

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.


Judge(s): Richard R. Clifton
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Criminal Justice
Circuit Court Judge(s)
Richard Clifton
Mary Schroeder
John Tunheim

Trial Court Judge(s)
William Hayes

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Dale Blankenship U.S. Department of Justice
Bruce Castetter U.S. Department of Justice
Laura Duffy U.S. Department of Justice

Defendant Lawyer(s) Defendant Law Firm(s)
Kent Young Federal Defenders of San Diego Inc



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witness. she testified that she was familiar with immigration affirmative defenses. moncrieffe instead concerned a narrow was not subject to cross-examination. process that would be required to apply for permission to information maintenance system (“claims”) and “did not before: mary m. schroeder and richard r. clifton, circuit cannot know what conduct constitutes a firearms offense facts at a criminal trial.” id. applying rojas-pedroza’s logic, was evidentiary error. an in-court identification is “witness has had ‘sufficient contact with the defendant to find any application or anything to do with this individual the identification of the attached documents by a-number albino-loe also argues that agent clark’s in-court defenseis availablein most jurisdictions and under the model in calculating the advisory range under the sentencing a notice to appear are merelythat—allegations. theyare not albino-loe did not call any witnesses. the jury found removal under the immigration and nationality act (“ina”) objected to introduction of these documents on confrontation error. see united states v. hayat, 710 f.3d 875, 893 (9th cir. argument goes as follows. he admits that he was convicted in supreme court’s decision in moncrieffe came later and could affirmative defense of voluntary abandonment to a charge of statements unless the declarant is unavailable to testify and offenses and the antique firearms exception does not change regarding form i-212 was impermissible expert testimony the panel held that the district court did not err in anticipation of immigration proceedings is therefore not a citizen of the united states. crawford held that the of the notice at trial therefore did not violate the defendant’s 133 s. ct. 1678 (2013), his prior conviction in california helpful.’” united states v. beck, 418 f.3d 1008, 1015 (9th him guilty. statementsregardingalienage containedinformi-871arenot necessarily generated after immigration proceedings. we 1094, 1100 (9th cir. 2011)) (alterations in original)); see also, united states v. albino-loe 7 reenter after deportation. through her, the government not affectwhethera conviction qualifies under the categorical agent clark permissibly testified that she looked in the albino-loe argues that admitting the certifications of custodian of a domestic public record . . . and a routine voluntary abandonment to a charge of attempt, though that 18 u.s.c. § 3742.1 was a misdemeanor or a felony. which party bore the burden importantly, in addressing this exception, moncrieffe did civil case or an indictment in a criminal case, is simply a imposition of a sentencing enhancement for a prior crime of sentence. we have jurisdiction to review albino-loe’s iii. albino-loe’s sentence e.g., model penal code § 5.01(1). moncrieffe therefore does united states court of appeals of albino-loe’s arguments. noted that a statement in a public or business record is antique firearms. here, a generic attempt is defined as an b. other challenges to albino-loe’s conviction certifications. testimonial.” bullcoming v. new mexico, 131 s. ct. 2705, conviction and sentence under 28 u.s.c. § 1291 and warranting a 16-level sentencing enhancement under section based on the photographs contained in the a-file, agent not speak to the situation presented here. while moncrieffe conditions [for the social sharing exception] attach.” id. at reference to both ‘“elements” in the traditional sense’ and loe to mexico in 2011 and a fingerprint technician. the to arturo albino-loe (aka arturo albino).” the defense united states v. albino-loe 9 is his confrontation clause argument against the 1687–88. the supreme court thought its conclusion in admissibility of the notice to appear. he also raises a albino-loe’s admissions concerning his alienage and his district of minnesota, sitting by designation. for the same reasons, albino-loe’s claim of cumulative prejudicial certifications of authenticity for the a-file documents, as is designed to or may readily be converted to expel a affected the defendant’s substantial rights.” id. at 895 summary** form i-212 did not affect the defendant’s substantial rights. added) (quoting carachuri-rosendo, 130 s. ct. at 2584); see stated that the records being authenticated “relat[ed] to of such a notice is simply “to effect removals, not to prove kent d. young, federal defenders of san diego, inc., san under the model penal code, the crime of attempt under form i-212, although perhaps impermissible expert clifton, circuit judge: william q. hayes, district judge, presiding united states of america, exception to thedrugtraffickingoffensestypicallywarranting is through form i-212, and that she looked for but found no what makes a statement testimonial, it noted that a core class approach, notwithstanding variations between california and our conclusion. see moncrieffe, 133 s. ct. at 1693. besides definition of the offense of conviction. see taylor v. united the government to initiate removal proceedings before an approach, but he argues that these precedents are united states v. albino-loe6 affirmed. sentencing factors.” moncrieffe, 133 s. ct. at 1689 (emphasis alien can reapply for permission to reenter the united states number (the “a-number”). she further testified that she had cir. 2004). 131 s. ct. at 2717. a notice to appear, like a complaint in a criminal division, and a. dale blankenship (argued), in nature.” united states v. weiland, 420 f.3d 1062, 1077 pronouncements to the particular context of a-file the honorable john r. tunheim, united states district judge for the meant to be evidence. cf. ninth circuit model criminal jury california of attempted murder and kidnaping. he argues, agent who booked him. they identified him in court, and the 2717 (2011). allegations by the government that albino-loe was an alien, without knowing the definition of “firearm,” which excludes loe’s warrant of removal, admitted into evidence as one of thereof by a certification from a department of homeland argued and submitted d.c. no. contained in a notice to appear, we have addressed introduced four documents from albino-loe’s a-file, * california, but argues that our precedents bar us from did not contain such an exception, and conduct punishable initiates removal proceedings. this is so even though both a under georgia law thus “did not ‘necessarily’ involve facts a controlled substance with intent to distribute into a to appear are not testimonial under crawford. usbp agent suzanne clark was the third government we add that the supreme court’s pronouncement that a a notice to appearis virtuallyindistinguishable: immigration being authenticated. we therefore reject albino-loe’s laura e. duffy, united states attorney, bruce r. castetter, conviction and the definition of the generic offense. under 1199 (9th cir. 2013). even where evidence was improperly was arrested in the united states near the mexican border. he with moncrieffe. we conclude that they are not. we are thus this court’s previous holdings that a variation in affirmative facts in criminal prosecutions. see rojas-pedroza, 716 f.3d the a-file documents during agent clark’s testimony. the identification of him as the person in the a-file photograph confrontation clause challenge to the admissibility of the united states v. albino-loe14 form i-871 in that the former is made in anticipation of cir. 2005) (quoting united states v. henderson, 241 f.3d for the ninth circuit constituting a substantial step towards the commission of the the enhancement, albino-loe was sentenced to 78 months’ form i-212.3 of personal contact with albino-loe. violence. we affirm. criminal law exception as “an affirmative sentencing defense,” the attempt that is available in a majority of jurisdictions and other jurisdictions as to the availability of an affirmative appear, the document filed by the government to initiate law requires immigration officers to prepare a notice to proceedings and that she was the custodian for the officers regarding his lack of permission to reenter further however, that because california does not provide for the 133 s. ct. at 1686. the crime of possession of marijuana with ofviolenceundertheapplicablecategoricalapproachbecause 1 anything.”). the mere fact that a notice to appear is prepared united states v. albino-loe 5 deported alien found in the united states. documents. although we have never addressed statements of testimonial statements maybe defined as “ex parte in-court “as to foundation. lack of personal knowledge.” the filing form i-212. possession with intent to distribute only by excluding sharing and hold that our precedents on that subject remain valid. well as evidentiary challenges to the admissibility of agent 2 permissible under federalrule of evidence 701(b) onlyif the form i-212 in albino-loe’s a-file. she further testified that customs enforcementagentwhophysicallyremovedalbino- testified that he affixed albino-loe’s fingerprint to albino- bound by our precedents, which require affirming albino- states v. charles, 581 f.3d 927, 935 (9th cir. 2009). the being only dictum, this reference merely reinforces what intent to commit an underlying crime and an overt act rights werenot affectedbyagent clark’s testimonyregarding been prepared by court staff for the convenience of the reader. see gonzalez-monterroso, 2014 wl 575952, at *4 (“we loe’s sentence. evidence, this error was harmless. statutory framework, “[m]arijuana distribution is neither a charging document. the allegations made against the alien in united states v. albino-loe 3 ina. see id. at 1686–87. reviewed his a-file in preparation for testifying. agent testified about the process of physically removing an california does not provide for an affirmative defense of that those california convictions should not qualify as crimes defendant-appellant arturo albino-loe was convicted statements made in a notice to appear are not testimonial. although the supreme court in crawford did not define enhancement de novo. see united states v. gonzalez- challenge to the admissibility of certifications of authenticity intent to distribute as defined in georgia’s statutes, however, 3:11-cr-03935- guidelines by applying an enhancement for a previous of the categorical approach, because the only question as part of the categorical approach. united states v. (citation omitted). since crawford, the supreme court has moot the parties’ joint motion to supplement the record. we further deny generic offense. see united states v. saavedra-velazquez, affirmative defenses as part of the categorical approach. into evidence over these objections. defendant-appellant. precedents were not affected by moncrieffe. by jury trial of being a deported alien found in the united moncrieffedid not disturb thecategoricalapproach’sfocus on ** expertise in immigration law. albino-loe did not object to united states v. albino-loe 13 opinion by judge clifton the a-file and found a match. previously held that a variation in affirmative defenses does agent clark further testified about deportation notice to appear are not testimonial and we reaffirm the booking agent testified to taking his fingerprints on a card federal offense defined by the ina, but the csa must punish california convictions for attempted murder and kidnaping velasquez-bosque, 601 f.3d 955, 963 (9th cir. 2010); united that correspond to an offense punishable as a felonyunder the binding ninth circuit precedent, any extraneous affirmative alienage), id. § 1229(a)(1)(d), and the notice to appear only in calculating albino-loe’s advisory range under the (2009). more recently, the supreme court has also noted that states v. rojas-pedroza, 716 f.3d 1253, 1269 (9th cir. 2013). means (a) any weapon (including a starter gun) which will or offense.’” (quoting hernandez-cruz v. holder, 651 f.3d no. 12-50428 statements in the similar context of a notice of receiver of any such weapon; (c) any firearm muffler or not testimonial where the record was not created “for the moncrieffe compelled by carachuri-rosendo v. holder, imposing an enhancement for a prior crime of violence. loe’s fingerprints obtained after his arrest to the fingerprints 2l1.2(b)(1)(a)(ii) of the u.s. sentencing guidelines. his she testified as to albino-loe’s unique alien registration the categorical approach remain valid after moncrieffe v. appear are testimonial under crawford v. washington, rights under the confrontation clause. among other things, that the admission into evidence during irrelevant.2 with the generic offense. although albino-loe recognizes support this conclusion. in sum, albino-loe’s substantial as affidavits . . . or similar pretrial statements that declarants including the notice to appear and the warrant of removal, of conviction. indeed, the factor defined whether the offense 2013). under plain error review, reversal is only warranted the comparison between the definition of the offense of instruction 1.2 (2014) (“the charge[s] against the defendant presented to the district court. see fed. r. app. p. 10. 2009)). here, we need only reach the third prong. because considering such an affirmative defense and that those the generic offense at issue here, attempt, is not defined approach as “looking only to the statutory definitions of the procedures, from the initial notice to appear through the albino-loe argues that a notice to appear is different from each authenticated as originals or true and correct copies purpose further supports our conclusion. see bullcoming, the prior criminal prosecution was irrelevant to the supreme “definitions.” see 18 u.s.c. § 921(a)(3)(“theterm ‘firearm’ as aggravated felonies: the “social sharing of a small amount exception contained in the csa. united states v. albino-loe4 focus on the minimal conduct that would satisfy the statutory objection was overruled and, on cross-examination, it was of proving the presence or absence of the sentencing factor in continuing vitality of our precedents barring consideration of litigation while the latter is not, given that a form i-871 is plaintiff-appellee. prior offenses”). moncrieffe thus turned on the fact that the defense of voluntary abandonment is not available in of discretion. see united states v. morales, 720 f.3d 1194, appear, see 8 u.s.c. § 1229(a)(1), the notice to appear must alien after an order of removal is entered against him. he also including other in-court identifications and fingerprint two motions to supplement the record are also before us. we deny as have defined ‘attempt’ as requiring ‘[1] an intent to commit’ ii. albino-loe’s conviction was then charged with being a deported alien found in the purpose,’ . . . made in aid of a police investigation, ranks as and that we may therefore reject our precedents as having disagree. as the court reasoned in rojas-pedroza, the in imposing an enhancement under u.s.s.g. and kidnaping under california law. he contends, however, appeal from the united states district court identification was impermissible. see united states v. include charges against the alien (including of course his penal code. albino-loe acknowledges that our court has statement is testimonial where it is created for an evidentiary would reasonablyexpect to be used prosecutorially.” id. at 51 united states v. albino-loe10 states, 495 u.s. 575, 600 (1990) (describing the categorical “[a] document created solely for an ‘evidentiary plaintiff-appellee, not change the core feature of the categorical approach: its moncrieffe discussed at length in the drug trafficking context for the southern district of california court’s analysis. see id. at 1688–89. assistant united states attorney, san diego, california, for exception was not an affirmative defense, but only a errors fails. see united states v. fernandez, 388 f.3d 1199, 1256–57 (9th in-court identification of the defendant was harmless, and in addition, albino-loe argues that the district court erred clause challenges to his conviction and a challenge to the an application for permission to reenter, what she said about whichalsocontainsstatementsregardingalienage.seeunited june 6, 2011. one month later, on july 6, 2011, albino-loe united states v. albino-loe 15 the panel rejected the defendant’s confrontation clause requesting permission to come back.” the defense elicited the supreme court’s brief reference to the firearms the categorical approach in at least some circumstances, notice to appear and form i-871 may later be used to prove [is] [are] contained in the indictment. the indictment simply reviewed. the defense objected to this in-court identification melendez-diaz v. massachusetts, 129 s. ct. 2527, 2539–40 at trial, the first government witnesses were the u.s. concluded that a border patrol agent’s testimony regarding offense of conviction meet the ‘elements’ of the generic judges, and john r. tunheim, district judge.* albino-loe finally argues that agent clark’s testimony (9th cir. 2005). the certifications at issue here did not testimonial because agency regulations require immigration immigration judge, violated his rights under the these precedents are clearly irreconcilable with moncrieffe the underlying offense, along with ‘[2] an overt act illegal presence in the united states. sentencing guidelines, the district court imposed a 16-level monterroso, no. 12-10158, 2014 wl 575952, at *3 (9th cir. the panel affirmed a conviction and sentence for being a attempt. california defines attempt to be the same as the the final two witnesses were the immigration and wqh-1 applying for a passport or following some process other than cover all documents contained in an a-file. clause grounds,amongothers. the documents wereadmitted purpose of establishing or proving some fact at trial.” tells us that sentencing factors must be considered as part of that our precedents exclude consideration of affirmative and name is a permissible way to identify the documents testimony or its functional equivalent—that is, material such rosendo that . . . a generic federal offense may be defined by documents to which they were attached. in particular, they for the defendant’s a-file documents, held that an erroneous albino-loe’s most substantial challengeto his conviction gammie, 335 f.3d 889, 893 (9th cir. 2003) (en banc). the that was then admitted into evidence. theytestified regarding although albino-loe characterizes the social sharing defense of voluntary abandonment. the panel explained that of small amounts of marijuana for no remuneration. see crimes in california, including attempted murder and at 1269. therefore, we hold that statements made in a notice claims system and could not findanydocumentevidencing our precedents bar consideration of affirmative defenses given the overwhelming evidence of albino-loe’s identity, testimony from agent clark that a deported individual could clark identified albino-loe as the subject of the a-file she irreconcilable with the supreme court’s recent decision in albino-loe is an alien previously convicted of various novo. united states v. bustamante, 687 f.3d 1190, 1193 (9th filed april 7, 2014 authenticity violated his confrontation clause rights. we csa.” id. at 1687. as defined in that particular federal loe’s notice to appear did not testify at his criminal trial and that offense as a felony.”). this was so because the generic we reject albino-loe’s challenges to his conviction and 130 s. ct. 2577 (2010): “we made clear in carachuri- confrontation clause challenge to the admissibility of the constituting a substantial step. see gonzalez-monterroso, diego, california, for defendant-appellant. v. admitted, we may nevertheless affirm if the error was with reference to sentencing factors or affirmative defenses. confrontation clause bars admission of testimonial did not explicitlystate anything about albino-loe’s alienage. 2014 wl 575952, at *4. we need not know whether the this summary constitutes no part of the opinion of the court. it has controlled substances act (“csa”) defined the felony of part of the categorical approach are clearly irreconcilable conduct is sufficient to satisfy the generic definition of the declarant. id. at 68. the person who prepared albino- testimony, did not affect the outcome of the proceedings. in felony nor a misdemeanor until we know whether the clark’s in-court identification of albino-loe and her firearms exception appears in 18 u.s.c. § 921, a section titled voluntary abandonment defense is available to know what assistant united states attorney, chief, appellate section, lapierre, 998 f.2d 1460, 1465 (9th cir. 1993). however, conviction for a crime of violence. albino-loe does not testimony regarding form i-212. we are unpersuaded by any sentencing factor that was part of the definition of the offense sentencing enhancement for a prior crime of violence under misdemeanor, which is not an aggravated felony under the usedbythegovernmentto commencetheremovalproceeding counsel supersedeourprecedents,but that decision said nothingabout does not categorically qualify as a crime of violence containing all immigration documents related to albino-loe. under federal rule of evidence 702 because it required and remains consistent with the categorical approach’s focus defenses as part of the categorical approach, he argues that also id. at 1687 (“in other words, not only must the state 638, 650 (9th cir. 2001)). because agent clark had very arturo albino-loe, convictions for attempted murder and kidnaping. including firearm silencer; or (d) any destructive device. such term border patrol (“usbp”) agent who arrested him and the achieve a level of familiarity that renders the lay opinion kidnaping. removal proceedings were initiated against him defenses does not affect whether a conviction qualifies under against albino-loe in immigration court. it contains removal proceedings, are not testimonial, and that admission united states v. albino-loe12 in september 2010, and he was ordered removed as an immigration matters in file no. a#044-127-899, pertaining united states in violation of 8 u.s.c. § 1326. on the notice to appear and the warrant of removal from describes the charge[s] the government brings against the been effectively overruled by moncrieffe. see miller v. this testimony below and we therefore review only for plain a. the confrontation clause and notices to appear u.s.s.g. § 2l1.2(b)(1)(a) based on his prior california made clear that agent clark had never met nor had any kind opinion attestation to authority and signature . . . are not testimonial government does not dispute that the generic affirmative in challenging his conviction, albino-loe contends, moncrieffe v. holder, 133 s. ct. 1678 (2013). we disagree imprisonment. later discover that he was a citizen and come back by simply feb. 14, 2014). we need not engage in a thorough discussion presented by this appeal is a narrow one: whether our categorical match, and the district court did not err in california law is categorically overbroad when compared where there is “(1) an error; (2) that was plain; and (3) that our holding concerns a notice to appear and does not necessarily limited familiarity with albino-loe, her in-court opinion aggravated felon. he was physically removed to mexico on his criminal trial of a notice to appear, the document filed by iv. conclusion government’s permanent immigration record (the “a-file”) (quoting united states v. tran, 568 f.3d 1156, 1163 (9th cir. intent/decision to reinstate prior order (“form i-871”), precedentsexcludingconsiderationofaffirmativedefensesas united states v. albino-loe 11 on appeal, albino-loe challenges his conviction and have however already held that “a routine certification by the confrontation clause. we disagree, concluding that the cir. 2012). we generallyreview evidentiaryrulings for abuse the main dispute relates to whether the statements doesnot include an antique firearm.” (emphasis added)).one 578 f.3d 1103, 1107–10 (9th cir. 2009). there is thus a projectile by the action of an explosive; (b) the frame or turned what would otherwise be the felony of possession of harmless. see id. we review alleged confrontation clause violations de we review the application of the prior crime of violence on definitions of criminal offenses. indeed, the antique officers to complete such a notice, the statements are “the fingerprint technician testified that he compared albino- sentence. in so doing, we hold that statements made in a holder, 133 s. ct. 1678 (2013). agent clark also testified that the only way a deported qualified as crimes of violence under the categorical defendant. the indictment is not evidence and does not prove concerning albino-loe’s alienage contained in the notice to ordinary contents of” such a notice, and the primary purpose of marijuana” exception. 133 s. ct. at 1682. this exception defenses are therefore irrelevant to the categorical approach. united states v. albino-loe8 3 albino-loe’s motion to supplement the record with material never the panel held that the statements made in a notice to states. he raises various evidentiary and confrontation i. background this court has applied the supreme court’s united states v. albino-loe16 dispute that he was previouslyconvicted of attempted murder albino-loe argues that, given moncrieffe v. holder, addition, albino-loe’s own admissions to his arresting for publication accomplish anything other than authenticating the a-file security official who did not testify. the certifications each february 5, 2014—pasadena, california united states v. albino-loe2 § 2l1.2(b)(1)(a)(ii) on the ground that the defendant’s prior offense was defined only by reference to the social sharing the defendantpreviouslyhad anopportunitytocross-examine she looked through the usbp’s computer linked automated 541 u.s. 36 (2004). the notice to appear was the document

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