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United States v. Albino-Loe

United States Court of Appeals, Ninth Circuit

April 7, 2014

ARTURO ALBINO-LOE, Defendant-Appellant

Argued and Submitted, Pasadena, California: February 5, 2014.

Page 1207

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-03935-WQH-1. William Q. Hayes, District Judge, Presiding.

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.

Before: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.[*] Opinion by Judge Clifton.


Page 1208

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.

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, 185 L.Ed.2d 727 (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 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 ...

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