PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 11-1524MANUEL SALVADOR AVITIAGUILLEN, a/k/a Robert Santini, a/k/a Pete Ruiz, a/k/a Joe Ruiz Garcia, a/k/a Robert Lopez, a/k/a Alfred Davila, Defendant-Appellant.

___________________________________ APPEAL FROM THE UN ITED STATES DISTRI CT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:11-CR-00201-REB-1)

___________________ _________________ Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge. *

___________________ _________________ Raymond P. Moore, Federal Public Defende r, and Barry A. Schwar tz, Assistant Federal Public Defender, Denver, Colora do, for Defendant Appellant. John F. Walsh, United States Attorney, an d Sergio Garcia, Spec ial Assistant United States Attorney, Denver, Colo rado, for Plaintiff-Appellee.

___________________ _________________ BALDOCK , Circuit Judge

___________________ _________________

* After examining the parties’ briefs a nd the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34.1 (G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### June 6, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Defendant Manuel Avitia-G uillen, a citizen of Mexi co, lawfully entered the United States in 1955. He obt ained permanent resident stat us in 1988 but was deported in June 1996 after being convi cted of an aggravated felo ny. Immigration and Customs Enforcement (“ICE”) discovere d Defendant in De nver, Colorado, in May 2011. A grand jury indicted Defendant with one count of being found in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). At trial, the Government called a fingerprint examiner with the Colorado Bureau of Investigatio n (CBI), Wendy Bacchi, to testify that Defe ndant’s fingerprints matched th ose on his 1996 deportation records. The Government laid the following foundation for Bacchi’s testimony: Bacchi became a Fingerprint Examiner Intern with the CBI in 1999 after co mpleting a semesterlong fingerprint identification class at Pikes Peak Community College. In 2000, Bacchi was promoted to a full Fingerprint Examin er. About fifty percent of her time was devoted to fingerprint comparison, and she had examined “thousands” of fingerprints. She had previously qualified as a fingerprint comparison e xpert in state and federal

courts. Defense counsel then examin ed Bacchi, establishing th at Bacchi had never been promoted to a “level 2 examiner,” had no t published any peer-reviewed articles on fingerprint examination, had not conducted a ny training to certify people as fingerprint examiners, was not qualified to examine late nt fingerprints, and had not received any additional training since 2000. Defense counsel then objected to Bacch i’s qualifications. The district court replied. “The objection is duly noted but respectfully overruled. This- 3 - is an area that involves scientific, tec hnical or other specialized knowledge. The foundation has been laid that the witness by her training , education, background and experience is qualified to testif y and opine as a fingerprint ex aminer.” Trial Trans. vol. II
at 343. Bacchi proceeded to testify that Defenda nt’s fingerprints taken upon his 2011 arrest matched the fingerprints taken during his removal proceedings in 1996. Defendant moved for a judgment of acquittal, but the dist rict court denied the motion, and the jury returned a guilty verdict. The district cour t sentenced Defendant to the low end of the guideline range, 41 months’ imprisonment. On appeal, Defendant argues the district court failed to make adequate findings of re liability with respect to Bacchi’s testimony. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. The issue Defendant raises on appeal is ex tremely narrow. He does not renew his objection to Bacchi’s qualifications as an e xpert witness, nor does he challenge the scientific reliability of fingerprint identifica tion. Instead, he argues the district court erred “by failing to create an adequate r ecord demonstrating that it satisfied its gatekeeping obligations.” 1 Aplt.’s Br. at 18.

1 The record creates some confusion as to how long Bacchi had worked as a fingerprint analyst. At trial, which took place in July 2011 , Bacchi stated she had been employed by the CBI for “[s]ixteen years.” Tr ial Trans. vol. II at 333. When asked what positions she had held, she resp onded: “I was a Crime Data Specialist when I started my career there in ’85. In ’99 I was promoted to a Fingerprint Examiner Intern, and in 2000 I was promoted to a full Fingerprint Examiner.” Id. Later, when asked how long she had been doing fingerprint work, she said, “Since 1989.” Id. at 335. Yet a short time later she said she took the fingerprint class in “January th rough May of 1998.” Defendant- 4 - Federal Rule of Evidence 702 requires a di strict court to assess proffered expert testimony to ensure it is both relevant an d reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993) (scientific knowledge); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (tec hnical and other specialized knowledge). “[T]he district court generally must first de termine whether the expert is qualified ‘by knowledge, skill, experience, tr aining, or education’ to rende r an opinion.” United States v. Nacchio, 555 F.3d 1234, 12 41 (10th Cir. 2009) (e n banc) (quoting Fed. R. Evid. 702). If the expert is sufficiently qua lified, then “the court must determine whether the expert’s opinion is reliable by assessing the un derlying reasoning and methodology.” Id. Although a district court has discretion in how it performs its gatekeeping function, “when faced with a party’s object ion, [the court] must adequa tely demonstrate by specific findings on the record that it ha s performed its duty as gatekeeper.” Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). We review de novo whether the district court applied the proper standard in admitting expert testimony. United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011). We also review de novo whether the court “act ually performed its gatekeeper role in the first instance.” United States v. Roach, 58 2 F.3d 1192, 1206 (1 0th Cir. 2009) (quoting Dodge v. Cotter Corp., 328 F. 3d 1212, 1223 (10th Cir. 2003)). “If the district court seizes on the 1989 date, arguing that Bacchi had received no additional training in “20- plus years” of fingerprint work. The Gove rnment describes Bacchi as “a fingerprint comparison examiner since 2000.” In light of Bacchi’s other testimony, the references to 1985 and 1989 were likely transcription errors and th e correct years were actually 1995 and 1999. Ultimately, however, we need not resolve the confusion. Although it may be relevant to whether Bacchi was qualified as an expert, Defendant has not challenged her qualifications.- 5 - applied the correct legal standard, we th en review the manner in which the court performed its gatekeeping role , deciding whether to admit or exclude testimony, for abuse of discretion.” Garcia, 635 F.3d at 476. We revers e only if the district court’s conclusion is “arbitrary, capricious, whimsi cal or manifestly unreasonable or when we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Dodge, 328 F.3d at 1223 (internal quotation marks omitted). When a party fails entirely to object to expert testimony at or before trial, we review only for plain error. Macsenti v. Becker , 237 F.3d 1223, 1231 (10th Cir. 2001). The sole question before us is whethe r the district court has “adequately demonstrate[d] by specific findings on the record that it has performed its duty as gatekeeper.” Goebel, 215 F.3d at 1088. We review this que stion de novo. Although the question of whether the district court made adequate factual findings is not exactly the same question as whether it “actually performed its gatekeeper role in the first instance,” Roach, 582 F.3d at 1206, they are practically indistinguishable for purposes of this case. We can only determine whether the district court fulfilled its gatekeeping obligation by looking at its findings. See Goebel, 215 F. 3d at 1088 (observing that without specific findings, we cannot determine whether the dist rict court properly fulfilled its gatekeeping obligation). Thus, to the exte nt Defendant preserved a challe nge to the adequacy of the district court’s findings, we review the issue de novo. 2

2 Our de novo review extends only so far, of course. It applies only to whether the district court “actually performed its gatekeeper role in the first in stance.” Dodge, 328- 6 - On appeal, Defendant argues the district court had a duty to make factual findings regarding both Bacchi’s qualif ications and her methodology. But Defendant did not object to Bacchi’s methodology at trial. “Whe n no objection is raised , district courts are not required to make ‘explicit on-the-record rulings,’” because “we assume that the district court consistently and continually performed a tr ustworthiness analysis sub silentio of all evidence introduced at trial.” Id. at 1088 n.2. (quoting Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995)). Where a party obj ects only to an expert ’s qualifications, he does not preserve an objection to the expert’s methodology. See Unite d States v. Vargas, 471 F.3d 255, 263 (1st Cir. 2006 ) (where defendant objected to an expert’s qualifications, but not his methods or the sufficiency of his data, an appellate court reviews these issues only for plain error); United States v. Diaz, 300 F.3d 66, 7 5–76 (1st Cir. 2002) (generic reference to Daubert while challenging expert ’s qualifications does not raise an objection to the expert’s methodology). Thus, we review de novo only whether the district court “actually performed its gatekeeper role” with respect to Bacchi’s qua lifications. Roach, 582 F.3d at 1206. We review the court’s factual findings with respect to Bacchi’s methodology only for plain error. Goebel, 215 F.3d at 1088 n.2. Any other approach would fault the district court for failing to ma ke findings on an i ssue Defendant did not raise.
A.

F.3d at 1223. To answer that question, we only need to ensu re the district court actually applied Rule 702. Once we are satisfied the court did not abdicate its gatekeeping role, we apply the deferential abuse of discretion st andard to its decision to admit or exclude testimony. Garcia, 635 F.3d at 476.- 7 - We turn first to whether the district court fulfilled its gatekeeping function regarding Bacchi’s qualifications . In United States v. Ve larde, 214 F.3d 1204, 1209 (10th Cir. 2000), we said a district court must make some findings regarding an expert’s reliability. In Velarde, the Go vernment called a doctor as an expert witness to testify about common symptoms in a child sexual abus e victim. Id. The doctor’s testimony was of questionable reliability, and we had previ ously held similar te stimony by the same doctor inadmissible in United States v. Ch arley, 189 F.3d 1251, 1266–68 (10th Cir. 1999). Despite an objection based on Kumho, the district court made “no reliability findings.” Velarde, 214 F.3d at 1209. Reco gnizing that Daubert a nd Kumho give “great latitude” to district courts, we nevertheless said “the court must, on the record, make

some kind of reliability determina tion.” Id. We cited Justi ce Scalia’s concurrence in Kumho, where he said, “I jo in the opinion of the Court, which makes clear that the discretion it endorses—trial-court discretion in choosing the manner of testing expert reliability—is not discretion to abandon the ga tekeeping function.” Kumho, 526 U.S. at 158–59 (Scalia, J., concurring). We concluded the district court abused its discretion by admitting the expert testimony with out a reliability determination. 3 Velarde, 214 F.3d at

3 At first glance, our holding in Velarde that the district court abused its discretion seems to conflict with our de n ovo standard of review. In ou r earlier cases, we held that admitting expert testim ony without any findings regarding its reliability was an abuse of discretion. See Goebel, 215 F.3d at 1088 (“ In the absence of such findings, we must conclude that the court abused its discreti on in admitting such testimony.”); United States v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 20 00) (“[H]aving failed to [make a reliability determination], the court abus ed its discretion when it adm itted that testimony.”). More recently, we have said we review de novo whether the court “actually performed its gatekeeper role in the first instance.” Dodge, 328 F.3d at 1223. In Dodge, however, we nevertheless held the district court “abused its discretion” by admitting expert testimony- 8 - 1211. We again examined th e adequacy of a district court’s gatekeeper findings in Goebel. There, a doctor tes tified the plaintiff’s brain inju ry resulted from exposure to train locomotive fumes co mbined with the effects of high elevation. Id. at 1086. The district court did not conduct a Daubert hearing and made no findings regarding the reliability of the expert’s tes timony, despite three separate objections by the defendant. Id. at 1086–87. Th e extent of the district court’s on-the-record findings was its statement that “I believe there is suffici ent foundation here fo r the jury to hear this testimony.” Id. at 1087. We said the gatek eeping function requires “a sufficiently developed record in order to allow a determination of whether the district court properly applied the relevant law.” Id. at 1088 (quoting Un ited States v. Nichols, 16 9 F.3d 1255, 1262 (10th Cir. 1999)). But we could find “not a single explicit statement on the record to indicate that the district court ever conduct ed any form of Daubert analys is whatsoever.” Id. We clarified that a district court need not “recite the Daubert standard as though it were some magical incantation.” Id. (quo ting Ancho v. Pentek Corp., 157 F.3d 512, 518 (7th Cir. 1998)). Nor need it “apply all of the re liability factors suggested in Daubert and

without performing its gatekeeper function. Id . at 1225. In Roach, we said the court “erroneously admitted . . . test imony without the required findin gs of reliability.” Roach, 582 F.3d at 1207. Roach ga ve perhaps the most accurate statement of the law after Dodge. The apparent inconsis tency in Dodge itself is probabl y illusory. When a district court neglects its gatekeeping function, it co mmits two errors. First, it commits error, reviewable de novo, by not ma king a reliability determination. Second, it abuses its discretion when it admits the expert testimony without a reliability determination. These errors are really two sides of the same coin, and our conclusion that th e district courts in Velarde, Goebel, and Dodge abus ed their discretion is consiste nt with the application of de novo review to such cases.- 9 - Kumho.” Id. But it must at least demonstrate it has performed its duty as gatekeeper. Id. We concluded the district court abused its discretion in admitting th e doctor’s testimony, and we ultimately remanded for a ne w trial. Id. at 1089. In Roach, a police officer gave expert testimony regarding common practices of Crips gang members such as carrying firearms, using certain slang te rms, and using blue porch lights. Roach, 582 F.3d at 1199. The defendant object ed to the officer’s expert credentials several times, but the district court overruled the objections. After one objection, the court instructed the jury as follows: “Technical or other specialized knowledge may assist the jury in understanding the evidence and determining the facts in issue. A witness who has knowledge and experience or training and education may testify and state an opinion concerning such matters.” Id. Late r, when the defendant objected to another portion of the officer’s testimony, the court said, “I’ve determined that the jury may consider [the officer] as an expert and give [his expert testimony] such consideration as they [sic] deem appropriate .” Id. We said the court’s statements “simply do not include any factual findi ngs indicating the basis of the court’s determination that [the officer] met the re quirements of Rule 702. A conclusory statement that the court has made such a determination will not suffice.” Id. at 1207. We concluded the court “e rroneously admitted [the officer’s ] testimony without the required finding of reliability.” Id. We held, however, that the ad mission of the testimony was harmless error, because other evidence sufficiently supporte d an inference the defendant was a gang member. Id. at 1208. What, then, is required to “adequately de monstrate by specific findings on the- 10 - record that [the district cour t] has performed its duty as gate keeper”? Goebel, 215 F.3d at 1088. The answer, according to Velarde, Goebel, and Roach, is at least “ some kind of reliability determination.” Vela rde, 214 F.3d at 1209. In Nacchio, we determined the district court made “a sufficiently developed record, a concrete reliability determination, and specific findings and discussi on.” Nacchio, 555 F.3d at 1256. There, the district court excluded expert testimony after disc ussing its inadmissibility under “a number of rationales.” Id. at 1239. But we have never addre ssed exactly how extensive admissibility findings must be . The key inquiry is whet her the appellate court can determine whether the district court “properl y applied the relevant law.” Nichols, 169 F.3d at 1262. See also Geobel, 215 F.3d at 1988 (considering the di strict court’s findings an “insufficient basis for appellate review”). Here, the relevant la w is Rule 702, which allows an expert witness to te stify if she is “qualified as an expert by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The district court gave ample evidence it was applying the Rule 702 standard . The court said Bacchi was qualified to testify as a fingerprint examiner based on her “training, education, background and experience.” Trial Trans. vol. II at 343. So the record is suffici ent to demonstrate the district court applied the relevant law. This case differs from Goebel , where the district court did not show on the record it had exercised its gatekeeping function. Here , the district court specifically recited the standard it was applying—Rule 702. Additi onally, Goebel involved a challenge to an expert’s methodology in a complicated area of medical science. Th is case involves an expert’s qualifications to testify to a commonl y used method of iden tification. Defendant- 11 - argues the district court was required to “car efully and meticulously review the proffered scientific evidence.” Goebel , 215 F.3d 1088 (quoting Unite d States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997)) (alteration omitte d). But, once agai n, Defenda nt never challenged Bacchi’s methodology, but only he r qualifications. So Goebel has little relevance here. The other cases Defendant c ites also suffer from this dissimilarity. See Dodge, 328 F.3d at 1225–26 (“reluctantly conclude[ing]” the district court had made insufficient findings regarding an expert’s reasoning and methodology); Velarde, 214 F.3d at 1209 n.3 (noting th e defendant did not challenge the doctor’s “credentials, expertise, or qualifications to testify as an expert”). This case is more similar to Roach, which involved a challenge to an expert’s “credentials,” rather than his methodology. Roach, 582 F.3d at 1199. As in Roach, the court here admitted the testimon y with only a brief explanation. But the explanations differ in an important respect. In Roach, the district court e xplained Rule 702 to the jury, saying, “A witness who has knowledge and ex perience or training and education may testify and state an opinion conc erning such matters.” Id. Th is tells us nothing about the court’s determination that a specific witness was qualified. Later, the court said it had “determined that the jury may consider him as an expert.” Id. This, however, says nothing about the court’s “ basis of [its] determination.” Id . at 1207 (emphasis added). The record did not contain “ any factual findings indicating the basis of the court’s determination” regarding this specific w itness’s qualifications under Rule 702. Id. (emphasis added). Here, by contrast, the district court explained it found Bacchi “qualified to testify and opine as a fingerprint examiner” based on “her training,- 12 - education, background, and experience.” Tria l Trans. vol. II at 343. We recognize these findings were very brief. In some cases, particularly when dealing with an expert’s methodology, we might requir e more extensive factual fi ndings. But these findings adequately demonstrate the district court did, in fact, “perform[] its duty as gatekeeper.” Goebel, 215 F.3d at 1088. If Defendant had challenged the district court’s decision to qualify Bacchi as an expert, we would have been presented with a sufficient record to determine whether the court “properly applied the relevant law.” Nichols, 169 F.3d at
1262. Defendant would have us expand Roach, which requires at least some factual findings, and require a district court to “jus tify, support, or expo und on its conclusion.” Aplt.’s Br. at 19. He argues the district c ourt needed to say “cons iderably mo re” about the foundation for Bacchi’s testimony. Id. at 20. But our cases do not require district courts to extensively explain th eir reliability determinations, es pecially with regard to an expert’s qualifications. Defenda nt would have us order a new trial simply so the district court could elaborate for a few more senten ces on its determination that Bacchi qualified as an expert witness. Such an elaboration would in no way further our appellate review. The record is already sufficient for us to de termine the basis for the court’s ruling, and consequently provides a “sufficient basis for appellate review.” Goebel, 215 F.3d at 1088. Roach does not require a remand simply because the district judge was not given to verbosity, and we decline to adopt such a rule today.
B. The only remaining question is whether the district court neglected its gatekeeping- 13 - function with respect to Bacch i’s methodology, an argument Defendant urges on appeal. As mentioned above, our review on this issue is only for plain error. Macsenti, 237 F.3d at 1231. When a party fails to object to an expert’s metho dology, the district court need not make explicit findings. Goebel, 215 F.3d at 10 88 n.2. So we are left to look only for some obvious error in the court’s implicit findi ng that Bacchi’s methods were reliable. The district court heard Bacchi describe he r method of comparing fingerprint cards. Fingerprint comparison is a well-established method of identifying persons, and one we have upheld against a Daubert challenge. Un ited States v. Baines, 573 F.3d 979, 990–91 (10th Cir. 2009) (noting “[f]i ngerprint identification has been used extensively by law enforcement agencies all over th e world for almost a century,” has an “impressively low” error rate, and has achieved “overwhelming acceptance” by experts in the field). Defendant has pointed to noth ing in the record indicating Bacchi deviated from normal, reliable fingerprint comparison me thods. So the district cour t did not plainly err in its implicit determination that Bacchi’s testim ony was based on “reliable principles and methods” that were “reliably applied.” Fed. R. Evid. 702(c), (d).
AFFIRMED.