FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTURO ALBINO-LOE,

Defendant-Appellant.

No. 12-50428

D.C. No.

3:11-cr-03935-

WQH-1

OPINION

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

February 5, 2014—Pasadena, California

Filed April 7, 2014

Before: Mary M. Schroeder and Richard R. Clifton, Circuit

Judges, and John R. Tunheim, District Judge.*

Opinion by Judge Clifton

* The Honorable John R. Tunheim, United States District Judge for the

District of Minnesota, sitting by designation.
2 UNITED STATES V. ALBINO-LOE

SUMMARY**

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

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALBINO-LOE 3

the categorical approach remain valid after Moncrieffe v.

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

COUNSEL

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.

OPINION

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.
4 UNITED STATES V. ALBINO-LOE

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.

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
UNITED STATES V. ALBINO-LOE 5

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 Clark had never met nor had any kind

of personal contact with Albino-Loe.

Agent Clark further testified about deportation

procedures, from the initial Notice to Appear through the

process that would be required to apply for permission to

reenter after deportation. Through her, the government

introduced four documents from Albino-Loe’s A-File,

including the Notice to Appear and the Warrant of Removal,

each authenticated as originals or true and correct copies

thereof by a certification from a Department of Homeland

Security official who did not testify. The certifications each

stated that the records being authenticated “relat[ed] to

immigration matters in File No. A#044-127-899, pertaining

to Arturo ALBINO-Loe (AKA Arturo Albino).” The defense
6 UNITED STATES V. ALBINO-LOE

objected to introduction of these documents on Confrontation

Clause grounds, among others. The documents were admitted

into evidence over these objections.

Agent Clark also testified that the only way a deported

alien can reapply for permission to reenter the United States

is through Form I-212, and that she looked for but found no

Form I-212 in Albino-Loe’s A-File. She further testified that

she looked through the USBP’s Computer Linked Automated

Information Maintenance System (“CLAIMS”) and “did not

find any application or anything to do with this individual

requesting permission to come back.” The defense elicited

testimony from Agent Clark that a deported individual could

later discover that he was a citizen and come back by simply

applying for a passport or following some process other than

filing Form I-212.

The final two witnesses were the Immigration and

Customs Enforcement agent who physicallyremoved AlbinoLoe to Mexico in 2011 and a fingerprint technician. The

agent testified about the process of physically removing an

alien after an order of removal is entered against him. He also

testified that he affixed Albino-Loe’s fingerprint to AlbinoLoe’s Warrant of Removal, admitted into evidence as one of

the A-File documents during Agent Clark’s testimony. The

fingerprint technician testified that he compared AlbinoLoe’s fingerprints obtained after his arrest to the fingerprints

on the Notice to Appear and the Warrant of Removal from

the A-File and found a match.

Albino-Loe did not call any witnesses. The jury found

him guilty.
UNITED STATES V. ALBINO-LOE 7

In calculating Albino-Loe’s advisory range under the

Sentencing Guidelines, the district court imposed a 16-level

sentencing enhancement for a prior crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A) based on his prior California

convictions for attempted murder and kidnaping. Including

the enhancement, Albino-Loe was sentenced to 78 months’

imprisonment.

On appeal, Albino-Loe challenges his conviction and

sentence. We have jurisdiction to review Albino-Loe’s

conviction and sentence under 28 U.S.C. § 1291 and

18 U.S.C. § 3742.1

II. Albino-Loe’s Conviction

Albino-Loe’s most substantial challenge to his conviction

is his Confrontation Clause argument against the

admissibility of the Notice to Appear. He also raises a

Confrontation Clause challenge to the admissibility of the

certifications of authenticity for the A-File documents, as

well as evidentiary challenges to the admissibility of Agent

Clark’s in-court identification of Albino-Loe and her

testimony regarding Form I-212. We are unpersuaded by any

of Albino-Loe’s arguments.

We review alleged Confrontation Clause violations de

novo. United States v. Bustamante, 687 F.3d 1190, 1193 (9th

Cir. 2012). We generally review evidentiary rulings for abuse

of discretion. See United States v. Morales, 720 F.3d 1194,

1 Two motions to supplement the record are also before us. We deny as

moot the parties’ joint motion to supplement the record. We further deny

Albino-Loe’s motion to supplement the record with material never

presented to the district court. See Fed. R. App. P. 10.
8 UNITED STATES V. ALBINO-LOE

1199 (9th Cir. 2013). Even where evidence was improperly

admitted, we may nevertheless affirm if the error was

harmless. See id.

A. The Confrontation Clause and Notices to Appear

The main dispute relates to whether the statements

concerning Albino-Loe’s alienage contained in the Notice to

Appear are testimonial under Crawford v. Washington,

541 U.S. 36 (2004). The Notice to Appear was the document

used bythe government to commence the removal proceeding

against Albino-Loe in immigration court. It contains

allegations by the government that Albino-Loe was an alien,

not a citizen of the United States. Crawford held that the

Confrontation Clause bars admission of testimonial

statements unless the declarant is unavailable to testify and

the defendant previously had an opportunityto cross-examine

the declarant. Id. at 68. The person who prepared AlbinoLoe’s Notice to Appear did not testify at his criminal trial and

was not subject to cross-examination.

Although the Supreme Court in Crawford did not define

what makes a statement testimonial, it noted that a core class

of testimonial statements may be defined as “ex parte in-court

testimony or its functional equivalent—that is, material such

as affidavits . . . or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially.” Id. at 51

(citation omitted). Since Crawford, the Supreme Court has

noted that a statement in a public or business record is

not testimonial where the record was not created “for the

purpose of establishing or proving some fact at trial.”

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539–40

(2009). More recently, the Supreme Court has also noted that

“[a] document created solely for an ‘evidentiary
UNITED STATES V. ALBINO-LOE 9

purpose,’ . . . made in aid of a police investigation, ranks as

testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705,

2717 (2011).

This court has applied the Supreme Court’s

pronouncements to the particular context of A-File

documents. Although we have never addressed statements

contained in a Notice to Appear, we have addressed

statements in the similar context of a Notice of

Intent/Decision to Reinstate Prior Order (“Form I-871”),

which also contains statements regarding alienage. SeeUnited

States v. Rojas-Pedroza, 716 F.3d 1253, 1269 (9th Cir. 2013).

Albino-Loe argues that a Notice to Appear is different from

Form I-871 in that the former is made in anticipation of

litigation while the latter is not, given that a Form I-871 is

necessarily generated after immigration proceedings. We

disagree. As the court reasoned in Rojas-Pedroza, the

statements regarding alienage contained in Form I-871 are not

testimonial because agency regulations require immigration

officers to complete such a notice, the statements are “the

ordinary contents of” such a notice, and the primary purpose

of such a notice is simply “to effect removals, not to prove

facts at a criminal trial.” Id. Applying Rojas-Pedroza’s logic,

a Notice to Appear is virtually indistinguishable: immigration

law requires immigration officers to prepare a Notice to

Appear, see 8 U.S.C. § 1229(a)(1), the Notice to Appear must

include charges against the alien (including of course his

alienage), id. § 1229(a)(1)(D), and the Notice to Appear only

initiates removal proceedings. This is so even though both a

Notice to Appear and Form I-871 may later be used to prove

facts in criminal prosecutions. See Rojas-Pedroza, 716 F.3d

at 1269. Therefore, we hold that statements made in a Notice

to Appear are not testimonial under Crawford.
10 UNITED STATES V. ALBINO-LOE

We add that the Supreme Court’s pronouncement that a

statement is testimonial where it is created for an evidentiary

purpose further supports our conclusion. See Bullcoming,

131 S. Ct. at 2717. A Notice to Appear, like a complaint in a

civil case or an indictment in a criminal case, is simply a

charging document. The allegations made against the alien in

a Notice to Appear are merely that—allegations. They are not

meant to be evidence. Cf. Ninth Circuit Model Criminal Jury

Instruction 1.2 (2014) (“The charge[s] against the defendant

[is] [are] contained in the indictment. The indictment simply

describes the charge[s] the government brings against the

defendant. The indictment is not evidence and does not prove

anything.”). The mere fact that a Notice to Appear is prepared

in anticipation of immigration proceedings is therefore

irrelevant.2

B. Other Challenges to Albino-Loe’s Conviction

Albino-Loe argues that admitting the certifications of

authenticity violated his Confrontation Clause rights. We

have however already held that “a routine certification by the

custodian of a domestic public record . . . and a routine

attestation to authority and signature . . . are not testimonial

in nature.” United States v. Weiland, 420 F.3d 1062, 1077

(9th Cir. 2005). The certifications at issue here did not

accomplish anything other than authenticating the A-File

documents to which they were attached. In particular, they

did not explicitly state anything about Albino-Loe’s alienage.

The identification of the attached documents by A-Number

and name is a permissible way to identify the documents

being authenticated. We therefore reject Albino-Loe’s

2 Our holding concerns a Notice to Appear and does not necessarily

cover all documents contained in an A-File.
UNITED STATES V. ALBINO-LOE 11

Confrontation Clause challenge to the admissibility of the

certifications.

Albino-Loe also argues that Agent Clark’s in-court

identification of him as the person in the A-File photograph

was evidentiary error. An in-court identification is

permissible under Federal Rule of Evidence 701(b) only if the

“witness has had ‘sufficient contact with the defendant to

achieve a level of familiarity that renders the lay opinion

helpful.’” United States v. Beck, 418 F.3d 1008, 1015 (9th

Cir. 2005) (quoting United States v. Henderson, 241 F.3d

638, 650 (9th Cir. 2001)). Because Agent Clark had very

limited familiarity with Albino-Loe, her in-court

identification was impermissible. See United States v.

LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993). However,

given the overwhelming evidence of Albino-Loe’s identity,

including other in-court identifications and fingerprint

evidence, this error was harmless.

Albino-Loe finally argues that Agent Clark’s testimony

regarding Form I-212 was impermissible expert testimony

under Federal Rule of Evidence 702 because it required

expertise in immigration law. Albino-Loe did not object to

this testimony below and we therefore 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 error; (2) that was plain; and (3) that

affected the defendant’s substantial rights.” Id. at 895

(quoting United States v. Tran, 568 F.3d 1156, 1163 (9th Cir.

2009)). Here, we need only reach the third prong. Because

Agent Clark permissibly testified that she looked in the

CLAIMS system and could not find anydocument evidencing

an application for permission to reenter, what she said about

Form I-212, although perhaps impermissible expert
12 UNITED STATES V. ALBINO-LOE

testimony, did not affect the outcome of the proceedings. In

addition, Albino-Loe’s own admissions to his arresting

officers regarding his lack of permission to reenter further

support this conclusion. In sum, Albino-Loe’s substantial

rights were not affected byAgent Clark’s testimony regarding

Form I-212.3

III. Albino-Loe’s Sentence

Albino-Loe argues that, given Moncrieffe v. Holder,

133 S. Ct. 1678 (2013), his prior conviction in California

does not categorically qualify as a crime of violence

warranting a 16-level sentencing enhancement under section

2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines. His

argument goes as follows. He admits that he was convicted in

California of attempted murder and kidnaping. He argues,

however, that because California does not provide for the

affirmative defense of voluntary abandonment to a charge of

attempt that is available in a majority of jurisdictions and

under the Model Penal Code, the crime of attempt under

California law is categorically overbroad when compared

with the generic offense. Although Albino-Loe recognizes

that our precedents exclude consideration of affirmative

defenses as part of the categorical approach, he argues that

these precedents are clearly irreconcilable with Moncrieffe

and that we may therefore reject our precedents as having

been effectively overruled by Moncrieffe. See Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). The

government does not dispute that the generic affirmative

defense of voluntary abandonment is not available in

3 For the same reasons, Albino-Loe’s claim of cumulative prejudicial

errors fails. See United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th

Cir. 2004).
UNITED STATES V. ALBINO-LOE 13

California, but argues that our precedents bar us from

considering such an affirmative defense and that those

precedents were not affected by Moncrieffe.

We review the application of the prior crime of violence

enhancement de novo. See United States v. GonzalezMonterroso, No. 12-10158, 2014 WL 575952, at *3 (9th Cir.

Feb. 14, 2014). We need not engage in a thorough discussion

of the categorical approach, because the only question

presented by this appeal is a narrow one: whether our

precedents excluding consideration of affirmative defenses as

part of the categorical approach are clearly irreconcilable

with Moncrieffe. We conclude that they are not. We are thus

bound by our precedents, which require affirming AlbinoLoe’s sentence.

Our precedents bar consideration of affirmative defenses

as part of the categorical approach. United States v.

Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010); United

States v. Charles, 581 F.3d 927, 935 (9th Cir. 2009). The

Supreme Court’s decision in Moncrieffe came later and could

supersede our precedents, but that decision said nothing about

affirmative defenses. Moncrieffe instead concerned a narrow

exception to the drugtraffickingoffenses typicallywarranting

removal under the Immigration and Nationality Act (“INA”)

as aggravated felonies: the “social sharing of a small amount

of marijuana” exception. 133 S. Ct. at 1682. This exception

turned what would otherwise be the felony of possession of

a controlled substance with intent to distribute into a

misdemeanor, which is not an aggravated felony under the

INA. See id. at 1686–87.

Importantly, in addressing this exception, Moncrieffe did

not change the core feature of the categorical approach: its
14 UNITED STATES V. ALBINO-LOE

focus on the minimal conduct that would satisfy the statutory

definition of the offense of conviction. See Taylor v. United

States, 495 U.S. 575, 600 (1990) (describing the categorical

approach as “looking only to the statutory definitions of the

prior offenses”). Moncrieffe thus turned on the fact that the

Controlled Substances Act (“CSA”) defined the felony of

possession with intent to distribute only by excluding sharing

of small amounts of marijuana for no remuneration. See

133 S. Ct. at 1686. The crime of possession of marijuana with

intent to distribute as defined in Georgia’s statutes, however,

did not contain such an exception, and conduct punishable

under Georgia law thus “did not ‘necessarily’ involve facts

that correspond to an offense punishable as a felony under the

CSA.” Id. at 1687. As defined in that particular federal

statutory framework, “[m]arijuana distribution is neither a

felony nor a misdemeanor until we know whether the

conditions [for the social sharing exception] attach.” Id. at

1687–88. The Supreme Court thought its conclusion in

Moncrieffe compelled by Carachuri-Rosendo v. Holder,

130 S. Ct. 2577 (2010): “we made clear in CarachuriRosendo that . . . a generic federal offense may be defined by

reference to both ‘“elements” in the traditional sense’ and

sentencing factors.” Moncrieffe, 133 S. Ct. at 1689 (emphasis

added) (quoting Carachuri-Rosendo, 130 S. Ct. at 2584); see

also id. at 1687 (“In other words, not only must the state

offense of conviction meet the ‘elements’ of the generic

federal offense defined by the INA, but the CSA must punish

that offense as a felony.”). This was so because the generic

offense was defined only by reference to the social sharing

exception contained in the CSA.

Although Albino-Loe characterizes the social sharing

exception as “an affirmative sentencing defense,” the

exception was not an affirmative defense, but only a
UNITED STATES V. ALBINO-LOE 15

sentencing factor that was part of the definition of the offense

of conviction. Indeed, the factor defined whether the offense

was a misdemeanor or a felony. Which party bore the burden

of proving the presence or absence of the sentencing factor in

the prior criminal prosecution was irrelevant to the Supreme

Court’s analysis. See id. at 1688–89.

The generic offense at issue here, attempt, is not defined

with reference to sentencing factors or affirmative defenses.

See Gonzalez-Monterroso, 2014 WL 575952, at *4 (“We

have defined ‘attempt’ as requiring ‘[1] an intent to commit’

the underlying offense, along with ‘[2] an 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 original)); see also,

e.g., Model Penal Code § 5.01(1). Moncrieffe therefore does

not speak to the situation presented here. While Moncrieffe

tells us that sentencing factors must be considered as part of

the categorical approach in at least some circumstances,

Moncrieffe did not disturb the categorical approach’s focus on

the comparison between the definition of the offense of

conviction and the definition of the generic offense. Under

binding Ninth Circuit precedent, any extraneous affirmative

defenses are therefore irrelevant to the categorical approach.

The Supreme Court’s brief reference to the firearms

offenses and the antique firearms exception does not change

our conclusion. See Moncrieffe, 133 S. Ct. at 1693. Besides

being only dictum, this reference merely reinforces what

Moncrieffe discussed at length in the drug trafficking context

and remains consistent with the categorical approach’s focus

on definitions of criminal offenses. Indeed, the antique

firearms exception appears in 18 U.S.C. § 921, a section titled

“Definitions.” See 18 U.S.C. § 921(a)(3) (“The term ‘firearm’
16 UNITED STATES V. ALBINO-LOE

means (A) any weapon (including a starter gun) which will or

is designed to or may readily be converted to expel a

projectile by the action of an explosive; (B) the frame or

receiver of any such weapon; (C) any firearm muffler or

firearm silencer; or (D) any destructive device. Such term

does not include an antique firearm.” (emphasis added)). One

cannot know what conduct constitutes a firearms offense

without knowing the definition of “firearm,” which excludes

antique firearms. Here, a generic attempt is defined as an

intent to commit an underlying crime and an overt act

constituting a substantial step. See Gonzalez-Monterroso,

2014 WL 575952, at *4. We need not know whether the

voluntary abandonment defense is available to know what

conduct is sufficient to satisfy the generic definition of

attempt. California defines attempt to be the same as the

generic offense. See United States v. Saavedra-Velazquez,

578 F.3d 1103, 1107–10 (9th Cir. 2009). There is thus a

categorical match, and the district court did not err in

imposing an enhancement for a prior crime of violence.

IV. Conclusion

We reject Albino-Loe’s challenges to his conviction and

sentence. In so doing, we hold that statements made in a

Notice to Appear are not testimonial and we reaffirm the

continuing vitality of our precedents barring consideration of

affirmative defenses as part of the categorical approach.

AFFIRMED.