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)|
|Trial Court Judge(s)|
|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|