F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , P laintiff-Appellee
,

v

.

A R T U R O A L B I N O

- L O E , Defendant-Appellant

. No. 12-50428

D.C. No. 3:11-cr-03935- W QH-1

OPI NI ON

Appeal from the United States District Court for the Southern District of California W illiam Q. Hay es, District J udg e, Presiding

Arg ued and Submitted F ebruary 5, 2014—Pasadena, California

F iled April 7, 2014

B efore: Mary

M. Schroeder and Richard R. Clifton, Circuit J udg es, and J ohn R. Tunheim, District J udg e. *

Opinion by

J udg e Clifton

* T h e Ho n orab le J o h n R. T un h eim
, Un ited States District J u d g e f o r th e District o f

Minn eso ta, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. A L B I N O -L O E 2

SUMMARY * *

Crim inal Law

The panel affirmed a conviction and sentence for being a deported alien found in the United States.

The p anel held that the statements mad e in a Notice to Appear, the d ocumen t f

iled by the g overnment to initiate removal proceeding s, are not testimonial, and that admission of the Notice at trial therefore did n ot violate the defendant’s rig hts under the Confrontation Clause.

The panel rejected the defendant’s Confrontation Clause challeng e to the admissibility of certifications of authenticity for the defendant’s A-F ile documents, held that a n erroneous in-court identification of the defendant was ha rmless, a nd concluded that a B order Patrol ag ent’s testimo n y r eg arding F orm I -212 did not affect the defendant’s substantial rig hts.

The panel held that the d istrict court d id not err i n i m p o s i n g a n e n h a n c e m e n t u n d e r U

. S

. S

. G

. § 2L 1.2(b)(1)(A)(ii) on the g round that the defendant’s prior California convictions for attempted murder and kid n aping qualified as crimes of violence under the categ orical approach, notwithstanding variations between California a nd other jur i s d i c tions as to the availability of an affirmative defense of voluntary abandonment. The panel ex plained that this court’s p revious holding s th a t a variation in affirmative defenses does not a ffect whether a conviction qualifies under

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. A L B I N O -L O E 3

the categ orical a

ppr o a ch r emain valid after Moncrieffe v

. Holder , 133 S. Ct. 1678 (2013).

COUNSEL

Kent D. Yo ung , F ederal Defenders of San Dieg o, I nc., San Dieg o, California, for Defendant-Appellant.

L aura E. D uffy
, U n i ted States Attorney
, B ruce R. Castetter, Assistant Unit e d S tates Attorney
, Chief, Appellate Section, Criminal D ivision, and A. Dale B lankenship (a r g ued), Assistant United States Attorney
, San Dieg o, California, for Plaintiff-Appellee.

OP INION

CL I F TON, Circuit J udg e :
Defendant-App e l lant Arturo A lbino-L oe was convicted by jury trial of being a deported a lien found in t he United States. He raises various e v identiary and Confrontation Clause challeng es to his c onviction a nd a c hallen g e t o the imposition of a sentencing enhancement for a prior crime of violence. W e affirm.

I n c halleng ing his conviction, Albino-L oe contends,
among o ther thing s, that the admission into evidence during his criminal trial of a Notice to Appear, the document filed b y the g overnment to initiate removal p roceeding s before an i m m i g r a t i o n j u d ge , v i o l at e d h i s r i gh t s u n d er t h e Confrontation Clause. W e disag ree, concluding that t h e statements made in a Notice to Appear are not testimonial.U N I T E D S T A T E S V

. A L B I N O -L O E 4

I n addition, Albino-L oe argues that the district court erred in calculating the advisory rang e un d e r the Sentencing Guidelines by applying an enhancement for a previous conviction for a crime of violence. Albino-L oe does not dispute that he was previously c o n victed of attempted murder and kidnaping under Calif o r nia law. H e contends, however, that those California convictions should not qualify as crimes of v iolen ce under the applicable categ orical approach because California d oes not provide f o r an affirmative defense o f voluntary abandonment to a ch a r ge of attempt, thoug h that defense is available in most jurisdictions and under the Model P en a l Code. Albino-L oe acknowledg es that our court h a s previously held that a v ariation in a ff irmative defenses does
not affect whether a conviction qualifies under the categ orical approach, but he argues that these p r ecedents a re irreconcilable with the Supreme Court’s re c e n t d ecision in Moncrieffe v. Holder
, 133 S. Ct. 1 67 8 (2013). W e disag r ee and hold that our precedents on that subject remain valid.

I. Background

Albino-L oe is a n a lien previously convicted of v arious cri m e s in California, including attempted murder a nd kidnaping

. Removal proceeding s w ere initiat ed ag ainst him i n S e ptember 2010, a

nd he was ordered removed as a n ag g ra vated felon. He was phy sically removed to Mex ico on J une 6, 2011. One month later, o n J u ly 6, 2011, Albino-L oe

was arrested in the United States near the Mex ican border. He

was then c harg ed with being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

At trial, the first g overnment witnesses were the U.S. B order Patrol (“USB P” ) a gent w ho arrested him and the
ag ent who booked him. They identified him in court, and theU N I T E D S T A T E S V

. A L B I N O -L O E 5

booking ag e nt tes t i f

i e d to taking his fing erprints o n a card that was then admitted into evidence. They testified reg arding Albino-L oe’s admi s s i ons concerning h is alienag e and his illeg al presence in the United States.

USB P Ag e nt Suz anne Clark was the third g overnment witness. She testified that she was familiar with immig r ation proceeding s and that s h e was the custodian f or the
g overnmen t ’s permanent immig r ation r ecord (the “A-F ile”) containing all immig ration documents related to Albino-L oe. She testified as to A lbino-L oe’s unique alien re gistration number (the “A-Number”). She further testified that she h ad reviewed his A-F ile in preparation for testify ing

.

B a sed on the photog raphs c o n tained in the A-F ile, Ag ent Cl a rk identified Albino-L oe as the subject of the A -F ile she reviewed. The defense objected to this in-court identification “as to fou n d ation. L ack of p ersonal knowledg e.” The objection was overruled and, on c r oss- ex amination, it was made clear that Ag e nt Clark had never met nor had any kind of personal contact with Albino-L oe.
Ag ent Clark f

urther testified about deportation procedures, from the initial Notice to Appe a r t h r oug h the
process that would be required to apply for p e rmission to reenter after deportation. T h roug h her, th e g overnment introduced four documents f r om A lbino-L oe’s A-F ile, including the Notice to Appear and the W arrant of Removal, each authenticated as orig ina l s o r true and correct copies thereof by a cert i f

i c a tion from a Department of Homeland Security official who did not testify

. The certifications e ach stated that the records being authenticated “relat[ e d ] to immig ration matters in F ile No. A#044-127-899, p erta i n ing
to A r turo AL B I

NO-L oe (AKA Arturo Albino).” The defenseU N I T E D S T A T E S V

. A L B I N O -L O E 6

objected to introduction of these documents on Confrontation Clause g rounds, among others. The documents were admitted into evidence over these objections.

Ag ent Clark also testified t hat the only way a deported alien can reapply for permission to reenter the United States is throug h F orm I -2 1 2
, a nd that she looked for but f ound no F orm I -212 in Albino-L oe’s A -F ile. She further testified that she looked throug h the USB P’s Computer L inked A utomated I nformation Maintenance Sy stem (“CL AI MS”) and “did not find an y application or any thing to do with this individual requesting permission to c ome b a c k .” The d efense e licited testimony f

r om Ag e nt Clark that a deported individual could later discover that he was a citiz en and come back by simply applying for a passport or following some process other than filing F orm I -212.

The fi nal two w itnesses w ere the I mmig ration a nd Customs E nforcement a g ent w ho phy sicall y r e m o v e d AlbinoL oe to Mex ico in 2011 and a fing erprint technic i a n. The
ag ent testified about the process of phy sically r emoving an alien after an order of removal is entered ag ainst h im. He also testified that he affix ed A l b ino-L oe’s fing erprint to AlbinoL oe’s W arrant of Removal, admitted into evidence as one o f
t h e A -F ile d ocuments during A g ent Clark’s testimony

. The fing erprint technician testified that he compared AlbinoL oe’s fing e rprints obtained a fter his arrest to the fing erprints

on the Notice to Appear and the W arrant of Removal from the A-F ile and found a match.

Alb i n o-L o e d id not call any witnesses. The jury f ound him g uilty

.U N I T E D S T A T E S V

. A L B I N O -L O E 7

I n calculating Albino

- L o e’s advisory rang e under the Sentencing G u idelines, the district c ourt imposed a 16-level sentencing enhancement for a prior crime of v iolence un d e r U.S.S.G. § 2L 1.2(b)(1) (A ) based on his prior California convictions for attempte d murder and k idnaping

. I ncluding the enhancement, Albino-L oe was s e n t e nced to 7 8 months’ imprisonment.

On appeal, Albino-L oe challeng e s his conviction a nd
sentence. W e have jurisdic t i o n to review Albino-L oe’s conviction and se n t e nce under 28 U.S.C. § 1291 a nd 18 U.S.C. § 3742. 1

II. Albino-Loe’s Conviction

Albino-L oe’s most substantial challeng e to his conviction is his Confrontation Clause argum e n t ag a inst the admissibility of the Notice to Appear

. He also raises a Confrontation Clause challeng e to the admissibility of the certifications of authenticity f or the A-F ile documents, a s well as evidentiary challeng es to the a d m i ssibility of Ag ent Clark’s in-court identificat ion of Albino-L oe and her testimony r e g arding F orm I -212. W e are unpersuaded by any of Albino-L oe’s arg

uments.

W e review alleg ed Confrontation Clau s e violations de

novo. U nited States v. Bustamante
, 687 F .3d 1190, 1193 (9th Cir. 2012). We g enerally r eview evidentiary ruling s for abuse of discretio n

. S

e e United S

tates v. Morales
, 720 F .3d 1194,

1 T w o m o tio n s t o su

p p lem en t th e reco rd are also b ef o re u s. We d en y as

m o o t t h e p arties’ j o in t m o tio n to su p plem en t th e reco rd

. W e f urth er d en y A lb in o- L o e’ s m o tio n to su pp lem en t th e reco rd w i th m aterial n ev er p resen t ed to th e d istrict co urt. S ee Fed . R. A p p. P . 1 0.U N I T E D S T A T E S V

. A L B I N O -L O E 8

1199 (9th Cir. 2013). E ven where evidence w a s improperly admitte d
, we may nevertheless affirm if the error was harmless. See id.

A. The Confrontation Clause and Notices to Appear

The mai n d ispute r elates to w hether the statements concerning Albino-L oe’s alienag e contained in the Notice to Appear are testimonial under Crawford v. W a shington
, 541 U.S. 36 (2004). The Notice to Appear was the document used by the g overnment to commence the removal proceeding
ag ainst Albino-L o e in immig ration cour t

. I t contains alleg ations by the g overnment that Albino-L oe was an a lien,
not a citiz en of the United States. Crawford h e l d that the Confrontation Clause bars ad mission of testimonial
statements unl e s s the d eclarant is unavailable to testify a nd the defendant previously had an opportunity to cross-ex amine the declarant. Id. at 68. The person w h o p repared AlbinoL oe’s Notice to Appear did not testify at his criminal trial a nd was not subject to cross-ex amination.

Althoug h the Supreme Court in Crawford did not define what makes a statement testimonial, it noted that a c ore class of testimonial statements may be defined as “ ex parte in-court testimony o r its functional equivalent—that is, material such

as affidavits

. . . or similar pretrial statements that declarants would reasonably e x pect to be used prosecutorially .” Id. at 51 (citation omitted). Since Crawford
, the Supreme C o urt has noted that a s t a t e ment in a p ublic or business r e cord is
not testimonial where the record was not created “ f o r the
purpose of establishing or proving some fact at t r i al.” Melendez-Diaz v. M

assa c h u setts , 129 S. Ct. 2527, 2539–40 (2009). More recently
, the Supreme Court has also noted that

“ [ a ] d o c u m ent create d s o l e l y f o r a n ‘ e v i d e n t i a r yU N I T E D S T A T E S V

. A L B I N O -L O E 9

purpose,’

. . . made in aid of a police investig ation, ranks a s testimonial.” Bullcoming v. New Mexico
, 131 S

. Ct. 2705, 2717 (2011).

This court h as applied the Supreme Cour t ’s pronouncements to the particular contex t o f A-F ile documents. A lthou gh we h ave n ever addressed statements contained in a Notice t o Appear, w e have addressed
statements in the similar contex t of a Notice o f I ntent/Decis ion to Reinstate Prior Order ( “F orm I -871”),

which also contains statements reg arding alienag e

. S e e U n i t e d States v. Rojas-Pedroza
, 716 F

. 3d 1253, 1269 (9th Cir. 2013). A l b i n o

- L oe argues that a Notice to Appear is different from F orm I -871 in that the f o r mer is made in anticipation o f litig ation while the latter is not, gi v e n that a F orm I -871 is necessarily g enerated after immig ration proceeding s. W e disag ree. As the court reasoned in R o j a s

- Pedroza
, the
statements reg a

rding a lienag e contained in F orm I -871 are not testimonial because ag ency regulations r e quire immig r ation officers to c omplete such a notice, the statements are “the ordinary contents of” such a notice, and the primary purpose of such a notice is simply “to e f f e c t removals, not to prove facts at a criminal trial.” Id. Apply ing Rojas-Pedroza ’s log ic,

a N otice to Appear is virtually indisting uishable: immig r ation l a w r equires immig ration o fficers to p repare a Notice to Appear, see 8 U.S.C. § 1229(a)(1), the Notice to Appear must include charg es ag ainst the a li e n ( i n cluding of course his alienag e), id. § 1229(a)(1)(D), and the Notice to Appear only initiates removal proceeding s. This is so even thoug h both a Notice to Appear a

n d F orm I -871 may later be used to prove facts i n c riminal prosecutions. See Rojas-Pedroza
, 716 F .3d
at 1269. Therefore, we h old that statements made in a Notice to Appear are not testimonial under Crawford

.U N I T E D S T A T E S V

. A L B I N O -L O E 10

W e add that the Supre me Court’s pronouncement that a statement is testimonial where it is created for an evidentiary
purpose further supports o ur conclusion. See Bu llcoming
, 131 S. Ct. at 2 717. A Notice to Appear, like a complaint in a civil case or an indictme n t i n a criminal case, is simply a charg ing d ocument. The a lleg ations made ag ainst the alien in

a Notice to Appear are merely that—alleg ations. They are not meant to be evidence. Cf. Ninth Circuit Model Criminal J ury I nstruction 1.2 (2014) (“The charg e[ s] ag ainst the defendant [ is] [ are] contained in the indictment. T he indictment simply describes the charg e[ s] the g o v e r n ment bring s a g ainst the defendant. The indictment is not evidence and does n ot prove any thing .”). The mere fact that a N otice to Appear is prepared in a nticipation of immig ration proceeding s is therefore irrelevant. 2

B. Other Challenges to Albino-Loe’s Conviction

Albino-L oe argues that admitting the certificat i o n s o f authenticity violated his Confrontation C l ause rig hts. W e have however already held that “a routine certification by the custodian of a domestic public record

. . . a n d a routine attestation to authority and sig n at u r e

. . . are not testimonial in nature.” United States v. W eiland
, 420 F. 3 d 1 0 6 2, 1077 (9th Cir. 2 005). The certifications at issue h ere did not

acco m p l i sh any

thing o ther than authenticating the A-F ile documents to which they were at t a c h ed. I n particular, they did not e x plicitly state any thing about Albino-L oe’s alienag e

. The identific a t ion o f the attached documents by A-Number and name is a permissible way to identify t h e documents bei n g authenticated. W e therefore reject Albino-L oe’s

2 Our h o l din g co n c e r n s a No tice to A p pear an d d o es n o t n ecessarily

co v er all d o cu m en ts co n t ain ed inanA

- File.U N I T E D S T A T E S V

. A L B I N O -L O E 11

Confrontation Clause challeng e to the admissibility of the certifications.

Albino-L oe a l s o argues that Ag ent Clark’s in-court identification of him as the person in the A-F ile photog raph

was e videntiary error. A n in-court identification is permissible under F ederal Rule of E vidence 701(b) only if the “witness has had ‘sufficient contact with the defe n d a n t to achieve a lev el o f familiarity that r enders the lay opinion helpful.’” United States v. Beck
, 418 F .3d 1008, 1 0 1 5 (9th Cir. 2005) (quo t i n g U

nited States v. Henderson
, 241 F .3d 638, 65 0 ( 9 th Cir. 2001)). B e c ause Ag ent Clark had very l i m i t e d f

a m i l i a r i t y w i t h A l b i n o

- Lo e , h e r i n

- c o u r t identification was impermissible. See United States v

. LaPierre
, 998 F .2d 146 0
, 1 4 65 ( 9th Cir. 1993). However, g iven the overwhelming evidence of Albino-L oe’s identity
, including other in-court identifications and fing erprint evidence, this error was harmless.

A l b ino-L o e finally argues that Ag ent Clark’s testimony

r eg arding F orm I -212 was impermissible e x pert testim o n y under F ederal R u le of Evidence 702 because it r equired

ex p ertise in immig ration law. Albino-L oe did not object to this testimony below and we t h erefore review only for plain

error. See United States v. Hayat
, 710 F .3d 875, 893 (9th Cir. 2013). Under plain error review, reversal is only warranted where there is “(1) an e r

ror; (2) that w as plain; and ( 3 ) t h at affected t h e d efendant’s substantial rig hts.” Id. at 895 (quoting United States v. Tran
, 568 F .3d 1156, 1163 (9th Cir. 2009)). Here, we need only reach the third prong

. B ecause Ag ent Clark p ermiss i bly testified that she looked in the CL AI MS sy stem and c o uld not find any document evidencing

an application for permission to reenter, what she said about F orm I -212, al t h o ug h perhaps impermissible ex pertU N I T E D S T A T E S V

. A L B I N O -L O E 12

testimony
, did not affect the outcome of the proceeding s. I n addition, Albino-L oe’s own admission s to his arresting officer s r e garding his lack of permission to reenter f urther support this conclusion

. In sum, Albino-L oe’s substantial rig hts were not affected by A g e nt Clark’s testimony reg arding F orm I -212. 3

III. Albino-Loe’s Sentence

Albino-L o e argues that, g iven Moncrieffe v. H older
, 133 S. Ct. 1678 (2013), h is prior c onviction in California does not c ateg orically qualify as a crime of v iolence warranting a 16-level sentencing enhancement un der section 2L 1.2(b)(1)(A)(ii) of the U.S. Se n t e n cing Guidelines. His
argument g oes as follows. He a dmits that he was convicted in California o f attempted murder a n d kidnaping

. He a rg u es, however, that because California d o e s n ot provide for the affirmative defense of voluntary abandonment to a c harg e o f attempt that is available in a majority of juri sdictions a nd

u n d er the Model Penal Code, the crime of attempt under California law is categ orically overbroad when compa r ed with the g eneric offense. A lthoug h Albino-L oe re cog niz e s that our precedents e x clude consideration of affirm a t i ve defenses as p art of th e c a t eg orical a pproach, he argues that these precedents are clearly irreconcilable with Moncrieffe and that w e may therefore reject our preceden t s as h aving been effectively o verruled b y M oncrieffe

. See Miller v

. Gammie
, 33 5 F. 3 d 8 8 9, 893 (9th Cir. 2003) (en banc). The
g overnment do e s n ot dispute that the g eneric affirmative defense of voluntary abandonment is not available in

3 Fo r th e sam e reaso n s, A lb in o- L oe’ s claim o f cu m u lativ e p rej u d i c i a l

erro rs f ails. S ee U n ited S ta tes v. Fern a n d

ez , 3 8 8 F.3 d 1 19 9
, 12 5 6

– 5 7 (9 th Cir. 2 0 0 4 ).U N I T E D S T A T E S V

. A L B I N O -L O E 13

California, b ut argues that our p r ecedents bar us from considering such an affirmative defense and that those precedents were not affected by Moncrieffe

.

W e review the a

p plication of the prior crime of violence enhance m e n t de novo. See United States v. GonzalezMonterroso
, N o. 12-10158, 2014 WL 575952, at *3 (9th Cir. F eb. 1 4
, 2014). W e need not eng ag e in a thoroug h discussion of the categ orical approach, be c au s e the only question presented by this appeal i s a n arrow one: whether our precedents e x cluding consideration of a ffirmative defenses a s part of the categ orical a pproach are clearly irreconcilable with Moncrieffe

. W e conclude that they are not. W e a re thus bound by our precedents, w h ich require affirming AlbinoL oe’s sentence.

Our precedents bar consideration of affirmative defenses

as part of the c ateg orical approach. United S t a t es v

. Velasquez-Bosque
, 601 F .3d 9 55, 963 ( 9th Cir. 2010); United States v. Charles
, 5 81 F .3d 927, 935 ( 9 t h C i r

. 2009). The Supreme Court’s decision in Moncrieffe came later and could supersede our precedents, but that d ecision said nothing about affirmative defenses. Moncrieffe instead concerned a narrow

ex c e ption to the d

r u g trafficking offenses ty

pically warranting removal under the I mmig ration and Nationality Act (“I NA”)

as ag g ravated f

elonies: the “social sharing of a small amount of marijuana” ex ce p tion. 133 S. Ct. at 1682. This ex c eption turned what would otherwise be t h e f e lony of possession o f

a controlled substance with intent to d i s tribute into a misdemeanor, whi c h is not an ag g r av ated felony under the I NA. See id. at 1686–87.

I mportantly
, in addressing this ex ception, Moncrieffe did
not chang e the core feature of t h e c ateg orical a pproach: itsU N I T E D S T A T E S V

. A L B I N O -L O E 14

focus on the minimal conduct that would satisfy the statutory definition of the offense of conviction. See Taylor v. U n i ted States
, 4 95 U.S. 575, 600 (1990) (describing the categ orical approach as “looking only to the stat u t o r y definitions of the prior o ffenses”). Moncrieffe t h u s t u r ned on the fact that the Controlled Substances Act ( “CSA” ) d e f ined the felony o f possession w ith intent to distribute only b y ex cluding sharing of small amounts of marijuana f or no remuneration. See 133 S. Ct. at 1686. The crime of possession of marijuana with intent to distribute as defined in Georg ia’s statutes, however, did not contain such a

n ex cept i o n, and conduct punishable under Georg ia law thus “did not ‘ necessarily ’ involve facts that correspond to an offense punishable as a felony under the CSA.” Id. at 1687. As de f i ned in that particular federal statutory framework, “[ m] arijuana distribution is neit h er a felony nor a misdemeanor until we know whe t h e r the conditi o n s [for the social sharing ex ception] attach.” Id. at 1 6 8 7 –88. The Supreme Court thoug ht its conclusion in Moncrieffe c o mpelled by Carachuri-Rosendo v. H older
, 130 S. Ct. 2577 ( 2010) : “ w e m ade clear in CarachuriRosendo that

. . . a g eneric federal offense may be defined b y reference to both ‘“elements” in t h e t r aditional sense’ a nd sentencing factors.” M

oncrieffe
, 133 S. Ct. at 1689 (emphasis added) ( quoting Carachuri-Rosendo
, 130 S. Ct. at 2584); see also id. at 1687 (“In other w ords
, n o t only must the state offense o f conviction meet the ‘ elements’ of the g eneric federal o ffense defined by the I NA, but the CSA must punish that offense as a felony .”). This was so because the g eneric offense was d e f

i n ed only b y reference to the social sharing

ex c e ption contained in the CSA.

Althoug h Albino-L oe characteriz es the social shari ng

ex c e ption as “an affirmative sentencing defense,” the

ex c e ption was not an a ffirmative defense, but only aU N I T E D S T A T E S V

. A L B I N O -L O E 15

sentencing factor that w as p art of the definition of the offense of conviction. I ndeed, the factor defined whether the offense

was a misdemeanor or a felony

. Which p arty bore the burden of proving the presence or a bsence of the sentencing factor in the prior criminal p rosecution was irrelevant to the Supreme Court’s analy sis. See id. at 1688–89.

The g e neric offense at issue here, attempt, is not defined wi t h reference to sentencing factors or affirmative defenses. See Gonz a l e

z

- Monterroso
, 2 014 W L 5 75952, at *4 (“W e have defined ‘attempt’ as requiring ‘[ 1] a n intent to commit’ the underly

ing offense, along with ‘[ 2 ] a n overt act constituting a substantial step towards the commission of the offense.’” (quoting Hernandez-Cruz v. Holder
, 651 F .3d 1094, 1100 (9th Cir. 2011)) (alterations in orig inal)); see also,
e.g. , Model Penal Code § 5.01(1). Moncrieffe therefore does
not speak to the situation presented here. W hile M o n cr ieffe tells us that sentencing factors must be considered as part of the categ orical approach in at least some circumstances, Moncrieffe did not disturb the categ orical approach’s f o c us on t he comparison between the definition of the offense o f conviction a

nd the definition of t h e g eneric offense. Under binding Ninth Circuit p receden t , any ex traneous affirmative defenses a

re therefore irrelevant to the categ orical approach.

The Supreme Court’s brief reference to the f irearms offenses and the antique firearms ex ception does not chang e

our conclusion. S

e e M oncrieffe
, 133 S. Ct. at 1693. B esides being only di c t u m , this reference merely reinforces what Moncrieffe discussed at leng th in the drug trafficking c ontex t and remains consistent with the c ateg orical approach’s focus

on definitions of crim i nal o f fenses. Indeed, the a

ntique firearms ex ception appears in 18 U.S.C. § 921, a section titled “Definitions.” See 18 U.S.C. § 921(a)(3) (“The term ‘ firearm’U N I T E D S T A T E S V

. A L B I N O -L O E 16

means (A) any weapon (including a starter g un) which will o r is desi gn e d t o or may readily b e converted to ex p el a projectile by the action of an e x plosive; (B ) the frame o r receiver of any such w e a p o n ; ( C) any firearm muffler o r firearm silencer; or ( D) any destructive device. Such t erm does not include a n antique firearm. ” (emphasis added)). One cannot know what conduct constitutes a f irearms offense without knowing the definition of “ f irearm,” which ex cludes antique firearms. Here, a g eneric attempt is defi ned as an intent to commit an underl y ing c rime and an overt act constituting a substantial step. See Gonzalez-Monterroso
, 2014 W L 575952, at *4. W e need not k n ow whether the voluntary ab a n d o n ment defense is available to know what conduct is sufficient to satisfy the g eneric definition o f attempt. California d efines attempt to be the same a s the
g eneric offense. See United States v

. Saavedra-Velazquez
, 578 F .3d 1103, 1107–10 (9th Cir. 2 009). There is thus a categ orical match, and the district c o u r t did not err in imposing an enhancement for a prior crime of violence.

IV. Conclusion

W e reject Albino-L oe’s c halleng es to his conviction and

s e n t ence. I n so doing
, we hold that statements made in a N otice to Appear a

r e not testimonial and w e reaffirm the continuing v itality of our precedents barring consideration o f affirmative defenses as part of the categ orical approach.

AF F IRMED.