* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 13 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-6254

v. (D.C. No. CR-01-0201-T) CARLOS ROMERO-ROJO, also known as Jose Ruiz-Lopez, also known as Carlos Leal-Romero, also known as Claudio Ceniceros-Peralta, also known as Miguel Ramirez,

Defendant-Appellant. (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.

Defendant Carlos Romero-Rojo appeals his conviction for illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. Defense counsel has filed an Anders brief indicating his belief that the record contai ns no non-frivolous issues-2-

for appeal, and moves for leave to withdraw as coun sel. See Anders v. California , 386 U.S. 738, 744 (1967)

. Consistent with the procedure set forth in Anders , Defendant has filed a pro se supplemental brief arg uing that his conviction must be reversed because (1) the district court admitted a prejudicial photograph of Defendant, and (2) the government presented “tamper ed and altered” documents at trial. We ordered defense counsel to submit a b rief addressing Defendant’s contentions. Counsel has submitted a wholly inadeq uate brief, reiterating his belief that the appeal is frivolous. Exercising ju risdiction under 28 U.S.C. § 1291, we affirm Defendant’s conviction and grant c ounsel’s motion to withdraw. Defendant first challenges the district court’s dec ision to admit an enlargement of a “mug shot” photograph of Defendantin which he is holding a placard that reads “California State Prison.” He a rgues that the photograph was admitted in violation of Fed. R. Evid. 404(b), whic h “prohibits the government from offering evidence of other crimes, wrongs, or acts to demonstrate the bad character, moral turpitude, or criminal disposition of a defendant to prove he acted in conformity with the prior acts or events.” United States v. Roberts , 185 F.3d 1125, 1141 (10th Cir. 1999). The mug shot was part of Defendant’s Alien Registration File (“A-file”) maintained by the Immigration and Naturalization Se rvice. The district court-3-

admitted the mug shot over defense counsel’s object ion, for the limited purpose of identifying Defendant as the subject of the A-fi le. The court informed the jury of this limited purpose, and instructed it to disre gard the writing on the photograph (presumably, the words “California State Prison”). In addition to the mug shot, the court admitted other documents from t he A-file which tended to establish Defendant’s identity (and whose admissionDefendant does not challenge on appeal), including two additional phot ographs of Defendant, and a card containing fingerprints identified at trial to be the fingerprints of Defendant. “We review a decision to admit evidence under Fed. R. Evid. 404(b) for abuse of discretion.” Id . If the admission of evidence under the Rule is erroneous, however, we will not disturb Defendant’s conviction if the error is harmless. United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir. 1998). Evidence may properly be admitted under Rule 404(b) if four conditions are satisfied: “(1) the evidence was offered for a pro per purpose under Fed. R. Evid. 404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the probative value of the evidence was not substantially outweig hed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4) the dist rict court, upon request, instructed the jury pursuant to Fed. R. Evid. 105 t o consider the evidence only for the purpose for which it was admitted.” United States v. Becker , 230 F.3d 1224, 1232 (10th Cir. 2000).-4-

We have grave doubts about the admissibility of the photograph. Specifically, we are concerned about whether the th ird Beckerfactor—whether “the probative value of the evidence was not substa ntially outweighed by its potential for unfair prejudice”—was satisfied in th is case. The admission of a defendant’s mug shot carries with it a particularly acute danger of unfair prejudice, because it can “unmistakably convey to t he jury the information that [the] defendant is a convicted criminal . . . .” United States v. Taylor , 605 F.2d 1177, 1179 (10th Cir. 1979) (distinguishing the evi dence at issue in that case from the prejudice inherent in the admission of a mug sh ot); see also, e.g., United States v. Hines , 955 F.2d 1449, 1455 (11th Cir. 1992) (“[M]ugshots carry a clear implication of criminal activity that breac hes the rule against admitting evidence of the defendant’s bad character or previo us brushes with the law.”). In light of this potential for unfair prejudice, the m ug shot needed to be particularly probative for its admission to have been proper. B ut the probative value of the mug shot was minuscule, given the purpose for which it was admitted (identification of Defendant) and the other evidenc e admitted from the A-file that clearly established Defendant’s identity—in particu lar, Defendant’s fingerprints. See Old Chief v. United States , 519 U.S. 172, 184 (1997) (whether the danger of unfair prejudice outweighs the probative value of apiece of evidence must be made “in view of the availability of other means of proof” (internal quotation marks omitted)).-5-

Nevertheless, we need not resolve the admissibility issue, because we conclude that any error was harmless. “An erroneou s admission of evidence is harmless unless it had a substantial influence on t he outcome or leaves one in grave doubt as to whether it had such effect.” Bornfield, 145 F.3d at 1131 (internal quotation marks omitted). Here, the evid ence of guilt was overwhelming. To obtain a conviction under 8 U.S.C . § 1326 for illegal reentry after deportation, the government needed to prove o nly that Defendant “(1) is an alien; (2) was previously arrested and deported; (3 ) was thereafter found in the United States; and (4) lacked the permission of the Attorney General.” United States v. Anaya , 117 F.3d 447, 449 (10th Cir. 1997). As stated, Defendant’s fingerprints linked him to the A-file. And the A-file contained documents, explained by government witnesses at tri al, that incontrovertibly established each of the elements necessary to convi ct Defendant under § 1326. These included (1) a 1996 deportation order in Defe ndant’s name; (2) a “Warrant of Removal/Deportation” indicating that Defendant h ad, in fact, been deported; (3) a document stating that Defendant had not sough t permission from the Attorney General to reenter the United States; and (4) a document, apparently signed by Defendant during a meeting with an immigr ation official, in which Defendant admitted to being in the country illegall y and requested to be returned to his home country as quickly as possible. In lig ht of this overwhelming evidence, we conclude that the mug shot did not hav e a “substantial influence on-6-

the outcome” nor would a reasonable person have “gr ave doubt as to whether it had [a substantial] effect” on the trial. Bornfield, 145 F.3d at 1131; see United States v. Hardwell , 80 F.3d 1471, 1491 (10th Cir. 1996) (“[B]ecause t he evidence against [the defendant] was overwhelming . . . , if admission of this challenged Rule 404(b) evidence was error, it was h armless error.”). Defendant’s final complaint is that the government presented “tampered and altered” documents at trial. The basis for thi s claim is not entirely clear. Moreover, because Defendant did not object at trial to the validity of the documents, our review is for plain error. See United States v. Castorena-Jaime , 285 F.3d 916, 926 (10th Cir. 2002). Whether the do cuments had been tampered with or altered is a factual dispute which does notrise to the level of plain error. See id. at 926-27 (“This court has held repeatedly that fa ctual disputes not brought to the attention of the court do not rise t o the level of plain error.” (internal quotation marks omitted)). Accordingly, we AFFIRM the judgment of the districtcourt and GRANT counsel’s motion to withdraw. The clerk of the cou rt is hereby directed to issue an order requiring appellant’s counsel, Rand C. Eddy, to show cause why he should not be removed from the roster of attorneys eligible for appointment as court-appointed counsel.
ENTERED FOR THE COURT Harris L Hartz Circuit Judge