United States v. Albino-Loe, No. 12-50428 (9th Cir. 2014)
Annotate this CaseDefendant challenged his conviction and sentence for being a deported alien found in the United States. The court concluded that the admission into evidence during his criminal trial of a Notice to Appear did not violate defendant's rights under the Confrontation Clause where the statements in the Notice were not testimonial; the court rejected defendant's Confrontation Clause challenge to the admissibility of the certifications of authenticity for defendant's A-File documents; the district court did not err in calculating defendant's advisory range under U.S.S.G. 2L1.2(b)(1)(A)(ii) where his prior conviction of attempted murder and kipping under California law qualified as crimes of violence under the applicable categorical approach; and the court reaffirmed the continuing vitality of the court's precedents barring consideration of affirmative defenses as part of the categorical approach. Accordingly, the court affirmed the judgment of the district court.
Court Description: 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 the categorical approach remain valid after Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
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