FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50191

Plaintiff-Appellee, D.C. No.

v.  CR-05-01593-

BTM-1 LUIS ESTRADA-ELIVERIO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

May 7, 2008—Pasadena, California

Filed October 5, 2009

Before: Raymond C. Fisher and Richard A. Paez,

Circuit Judges, and James L. Robart, District Judge.*

Opinion by Judge Paez

*The Honorable James L. Robart, United States District Judge for the

Western District of Washington, sitting by designation. 

14293
COUNSEL

Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,

San Diego, California, for the defendant-appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego,

California, for the plaintiff-appellee.

UNITED STATES v. ESTRADA-ELIVERIO 14295
OPINION

PAEZ, Circuit Judge:

Luis Estrada-Eliverio appeals from his conviction and 63-

month sentence imposed following a jury trial on one count

of illegal reentry in violation of 8 U.S.C. § 1326.1 In challenging his conviction, Estrada-Eliverio argues that the district

court erroneously admitted documents from his immigration

file (“A-file”) that were not properly authenticated at trial. He

contends that the district court erred by allowing authentication under Federal Rule of Evidence (“FRE”) 901 and that,

even if Rule 901 applied, the government did not satisfy the

rule’s requirements. We must determine whether the Federal

Rules of Criminal Procedure permit authentication of official

documents under FRE 901. We conclude that they do. In

addition, we hold that the district court did not abuse its discretion in admitting the A-file documents under Rule 901.

Accordingly, we affirm Estrada-Eliverio’s conviction.

Estrada-Eliverio also challenges the district court’s application of a sixteen-level enhancement to his offense level based

on his prior conviction under California Penal Code section

245(a)(1) for assault with a deadly weapon or by means likely

to produce great bodily injury. Estrada-Eliverio argues that

this conviction was not a “crime of violence” for purposes of

sentencing enhancement under United States Sentencing

Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii), and that it was

improper to enhance his sentence on the basis of a prior conviction that was not charged in the indictment and that was

neither proven to a jury beyond a reasonable doubt nor admitted. Because these arguments are foreclosed by opinions of

this court, we also affirm Estrada-Eliverio’s sentence.

1We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

14296 UNITED STATES v. ESTRADA-ELIVERIO
I. Background

To obtain a conviction under 8 U.S.C. § 1326, the government had to prove as an element of the offense that EstradaEliverio had previously been deported. See United States v.

Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir. 1994).

To prove Estrada-Eliverio’s prior deportation, the government submitted three A-file2

 documents: a notice of intent to

issue a final administrative removal order, a final administrative removal order, and a warrant of removal or deportation.

Because the seal that normally authenticates such documents

was not visible, they could not be admitted as selfauthenticating documents under FRE 902. 

Over Estrada-Eliverio’s objections, the district court

instead admitted the documents under FRE 901, based on

authenticating testimony by Marco Perez, a Border Patrol

agent. Perez testified that such documents are kept in A-files,

that the documents offered were copies of documents from

Estrada-Eliverio’s A-file, that Perez was the custodian of that

A-file, and that the documents admitted were true and correct

copies of the documents in the A-file, which Perez had personally seen. According to Estrada-Eliverio, this evidence

was critical to the jury’s guilty verdict. 

In determining Estrada-Eliverio’s advisory sentencing

guidelines range, the district court applied a sixteen-level

crime of violence enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). In so doing, the court found that EstradaEliverio’s prior conviction for assault with a deadly weapon

or by means likely to produce great bodily injury under Cali2

“ ‘A-files’ are the permanent record files of persons seeking to gain citizenship in the United States, which the [responsible federal agency] is

required to maintain for seventy-five years after the final adjudicative

action of the applicant.” United States v. Salazar, 455 F.3d 1022, 1023-24

(9th Cir. 2006). 

UNITED STATES v. ESTRADA-ELIVERIO 14297
fornia Penal Code section 245(a)(1) was a crime of violence.

Based on the enhanced offense level, the court determined

that the advisory guidelines range was 63 to 78 months. The

court ultimately sentenced Estrada-Eliverio to 63 months in

prison.

II. Challenge to Estrada-Eliverio’s Conviction

Standard of Review

We review de novo the district court’s interpretation of the

Federal Rules of Criminal Procedure, United States v. Fort,

472 F.3d 1106, 1109 (9th Cir. 2007), and we review its determination regarding the proper authentication of evidence for

abuse of discretion, United States v. Tank, 200 F.3d 627, 630

(9th Cir. 2000).

Discussion

Estrada-Eliverio’s challenge to the district court’s evidentiary rulings requires that we consider the interplay between

Federal Rule of Civil Procedure 44 and FRE 901. Although

the government could have relied on Rule 44 to authenticate

the A-file documents, it was not so restricted. As the district

court properly determined, FRE 901 provided an alternative

basis for establishing the documents’ authenticity. In light of

the evidence the government presented to meet its burden

under FRE 901, the court properly admitted the A-file documents.

[1] Federal Rule of Criminal Procedure 27 makes Federal

Rule of Civil Procedure 44 applicable in a criminal case.

United States v. Pintado-Isiordia, 448 F.3d 1155, 1157 n.1

(9th Cir. 2006) (per curiam). Under Federal Rule of Civil Procedure 44, an official record is admissible if it is an “official

publication” of the record or a copy of the record “attested by

the officer with legal custody of the record”

3

 and accompa3The precise wording of Rule 44 differed slightly at the time of EstradaEliverio’s trial. See Fed. R. Civ. P. 44 (2006) (amended 2007). The recent

14298 UNITED STATES v. ESTRADA-ELIVERIO
nied by a certificate, made under seal, that the officer has custody. Fed. R. Civ. P. 44(a). In addition, the Rule allows a

party to prove that a document is an official record “by any

other method authorized by law.” Fed R. Civ. P. 44(c).

[2] Estrada-Eliverio, relying on Chung Young Chew v.

Boyd, 309 F.2d 857, 867 (9th Cir. 1962), argues that “other

method[s] authorized by law” include only statutes and common law rules of evidence, and that the district court therefore

erred in allowing authentication pursuant to FRE 901. We

reject this argument. First, Chung Young Chew merely followed the language of Rule 44 as it existed at that time, which

allowed authentication by “any method authorized by any

applicable statute or by the rules of evidence at common law.”

See id. at 866 n.22. Rule 44 was subsequently amended to

include the language at issue here that refers more generally

to “any other method authorized by law.” See Charles Alan

Wright & Arthur R. Miller, 9A Fed. Practice & Procedure

§ 2437 (3d ed. 2009). Second, Chung Young Chew was published before the Federal Rules of Evidence were enacted.

The opinion therefore cannot be understood to preclude the

Federal Rules of Evidence from falling within Rule 44’s current broad provision for authentication by “any other method

authorized by law.” Federal Rule of Civil Procedure 44

clearly permits authentication of official documents under the

Federal Rules of Evidence.

Estrada-Eliverio also contends that, even if FRE 901

applies, the government did not properly authenticate the Afile documents and the district court thus abused its discretion

by admitting them. Specifically, Estrada-Eliverio objects that

Agent Perez did not have personal knowledge of the records’

creation. 

changes to Rule 44, however, were purely stylistic. Fed. R. Civ. P. 44

advisory committee’s note (describing 2007 amendment). 

UNITED STATES v. ESTRADA-ELIVERIO 14299
[3] FRE 901(b)(1) provides that a witness with knowledge

of a document can authenticate it by testifying that it is “what

it is claimed to be,” and FRE 901(b)(7) provides for authentication of a public record with “[e]vidence that [a purported

public record] . . . is from the public office where items of this

nature are kept.” A party “need only make a prima facie

showing of authenticity ‘so that a reasonable juror could find

in favor of authenticity or identification.’ ” United States v.

Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (quoting

United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.

1991)). Here, Agent Perez testified that the documents were

“what [they were] claimed to be,” namely, accurate copies of

documents he personally knew were from Estrada-Eliverio’s

A-file. FRE 901 does not require personal knowledge of a

document’s creation, but rather only personal knowledge that

a document was part of an official file. See Fed. R. Evid. 901

advisory committee’s note (“Public records are regularly

authenticated by proof of custody, without more.”). Agent

Perez’s testimony was sufficient to make a prima facie case

for authenticity. The district court therefore did not abuse its

discretion in admitting the documents on the basis of this testimony.

III. Challenges to Estrada-Eliverio’s Sentence

[4] Estrada-Eliverio also alleges two legal errors at sentencing. First, he argues that the district court erred in applying a

sixteen-level enhancement to his offense level pursuant to

United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii)

based on his prior conviction for assault with a deadly weapon

or by means likely to produce great bodily injury under California Penal Code section 245(a)(1). Specifically, he contends

that section 245(a)(1) does not constitute a crime of violence

for the purposes of the § 2L1.2(b)(1)(A)(ii) enhancement.

Because we held that section 245(a)(1) is categorically a

crime of violence under § 2L1.2(b)(1)(A)(ii) in United States

v. Grajeda, No. 07-50387, slip op. at 13647, 13668 (9th Cir.

Sept. 21, 2009), we reject this argument. 

14300 UNITED STATES v. ESTRADA-ELIVERIO
[5] Second, Estrada-Eliverio argues that the district court

erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), in

raising the statutory maximum for a violation of 8 U.S.C.

§ 1326 on the basis of a prior conviction that was not charged

in the indictment, and was neither proven to a jury beyond a

reasonable doubt nor admitted. This argument, however, is

foreclosed by Almendarez-Torres v. United States, 523 U.S.

224 (1998), and this court’s subsequent cases holding that

Apprendi has not overruled Almendarez-Torres. See, e.g.,

United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th

Cir. 2007). 

AFFIRMED.

UNITED STATES v. ESTRADA-ELIVERIO 14301