United States v. Earle

United States Court of Appeals
For the First Circuit

No. 06-1727

UNITED STATES OF AMERICA,

Appellee,

v.

CLARENCE L. EARLE,
a/k/a ERIC ALLEN, a/k/a THEODORE WILSON,
a/k/a LEMONT TIPPET, a/k/a ROBERT PREVAL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Charles W. Rankin, with whom Jonathan Harwell and Rankin &
Sultan were on brief, for appellant.
Seth P. Berman, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

June 6, 2007
 LYNCH, Circuit Judge. In November 2005, a jury convicted

Clarence L. Earle on one count of illegal reentry of a deported

alien, in violation of 8 U.S.C. § 1326. The district court

sentenced Earle to 78 months of imprisonment, 36 months of

supervised release, and a $100 special assessment.

On appeal, Earle argues there were two trial errors: (1)

that his right to confrontation under the Sixth Amendment, as

defined in Crawford v. Washington, 541 U.S. 36 (2004), was violated

by the admission at trial of a Certificate of Nonexistence of a

Record (CNR), and (2) that the district court erred in refusing to

instruct the jury that it must find that his prior deportation was

lawful beyond a reasonable doubt. The CNR was issued by the Bureau

of Citizenship and Immigration Services (CIS), within the

Department of Homeland Security (DHS), and it certified that a

search of the agency's files demonstrated that there was no record

that Earle had obtained consent from the Attorney General or the

Secretary of DHS to reapply for admission into the country after

having been deported.

Earle also argues there were two sentencing errors: (1)

that the district court erred in imposing a 16-level enhancement

under the Sentencing Guidelines for a prior deportation after

conviction of a "crime of violence," and (2) that his sentence was

in excess of the applicable statutory maximum because the fact that

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he had previously been convicted of an aggravated felony was not

found by the jury beyond a reasonable doubt.

We affirm Earle's conviction and his sentence.

I. Facts

The defendant, a citizen of Jamaica, was arrested and

detained by the Boston Police Department on November 6, 2003. The

defendant was present in the United States despite having been

deported twice. On February 12, 2004, he was transferred into

federal custody. The following day, he was fingerprinted.

The defendant's first deportation from the United States

occurred on January 3, 1991. He was then using the name Clarence

Earle, although he has used a number of different names over time.

As a regular part of the deportation process, Earle's fingerprint

was placed on the 1991 Warrant of Deportation.

Before his first deportation, Earle signed an affidavit

stating that he had arrived in the United States sometime in 1986

on a passenger ship, and that he had entered the country illegally

without ever having been "issued any documents from the United

States Immigration Service." Earle was fingerprinted on the same

day that he signed this affidavit.

The defendant attempted to reenter the United States from

Canada on September 24, 1992. He presented a Massachusetts

identification card bearing the name Lemont Tippet. Fingerprints

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taken from "Tippet" by the Immigration and Naturalization Service1

matched those taken from the defendant in February 2004. The

defendant was again deported on July 10, 2002, under the name

Clarence Earle. Earle's fingerprint was placed on the 2002 Warrant

of Deportation.

This case concerns Earle's presence in the United States

following the 2002 deportation and the resulting charges against

him under 8 U.S.C. § 1326. Section 1326 criminalizes the reentry

of any alien who has been deported from the United States unless

"prior to his reembarkation at a place outside the United States or

his application for admission from foreign contiguous territory,

the Attorney General has expressly consented to such alien's

reapplying for admission."

At trial, the government produced a fingerprint expert

who testified that the fingerprints taken from Earle in February

2004 matched those on the 1991 and 2002 Warrants of Deportation, as

well as other documents which were found in the defendant's Alien

File, or "A-file," at the INS.2

1
On March 1, 2003, the functions of the Immigration and
Naturalization Service were transferred to the Department of
Homeland Security. Homeland Security Act of 2002, Pub.L. No.
107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6 U.S.C. §
291(a)). We use the term "INS."
2
An A-file is kept by the INS and its successor agencies on
foreign nationals who come in contact with the government. It
contains a wide range of documents, including applications for
benefits, pictures, birth certificates, marriage certificates,
internal memos, records of enforcement actions and deportations,

-4-
 The government also presented two types of evidence

showing that Earle had never applied for or received permission

from the Attorney General to reenter the United States: in-person

testimony and the CNR. Joanne Sassone, a Records Information

Services Officer for CIS in Boston, testified that she was

responsible for overseeing CIS employees who maintained A-files and

updated corresponding computer databases. She explained that an

alien who has been deported must file a Form I-212 in order to

apply for reentry to the United States. Such an application, if it

were made, would appear in the alien's A-file. A record of the

filing fee and the final communication regarding the I-212

application would also be entered in various computer indices.

Sassone testified that she personally had reviewed Earle's entire

A-file and the computer indices, and that there was no document or

record that Earle had ever filed a Form I-212. Nor was there any

document or record that Earle had ever received permission to

reenter the United States.

On cross-examination, Sassone stated that it was possible

for an alien to have more than one A-file (for example, when the

alien uses different names), and that multiple files would be

consolidated if such a discovery were made. Earle's file had

undergone such consolidation. Sassone also confirmed that four

pages that pertained to another person had been misfiled in Earle's

and fingerprint cards.

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A-file. Those documents belonged to a different individual who had

a deportation action taken against him at a similar time as Earle.

When Sassone discovered that several pages had been misfiled in

Earle's file, she obtained the A-file of the other individual and

searched for any documents concerning Earle. There were none.

Defense counsel also asked Sassone about employee

staffing at the five document service centers maintained by CIS.3

Sassone testified that some employees worked for private

contractors, rather than for the government. She also confirmed

that, several years earlier, employees at a district office in Los

Angeles had improperly shredded thousands of immigration-related

documents. She was not aware of any similar events at the Vermont

service center, which covers the New England area.

On redirect, Sassone testified that even if an alien's I-

212 application were somehow misfiled or destroyed, there would

still be evidence in the computer indices or in the A-file of the

application having been submitted. She reiterated that she had

searched the relevant computer indices and had found no notation

that Earle had filed an I-212 application.

The government also introduced into evidence, over

defense counsel's objection, a CNR signed by Ruth E. Jones, the

3
CIS document service centers are located in Vermont,
Nebraska, Missouri, Texas, and California.

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Chief of the Record Services Branch, Office of Records, CIS. The

document stated that

after a diligent search relating to . . .
Clarence Lynval Earle, . . . no evidence is
found to exist in the records that the
defendant obtained consent before March 1,
2003 from the Attorney General . . . to
reapply for admission in the United States;
and no evidence is found to exist in the
records that the defendant obtained
corresponding consent after February 28, 2003
from the Secretary of [DHS].

The district court ruled that the evidence was admissible under

Federal Rule of Evidence 803(10). Jones did not testify at Earle's

trial.

Sassone testified that she did not have personal

knowledge of who prepared the CNR for Earle's case. She did

describe her understanding of the practice of preparing a CNR. She

testified that "[a]ll the A files must be reviewed and all

applicable computer indices must also be reviewed and searched

before [a CNR] can be prepared." She also stated that Jones, a

senior official at CIS, would not have personally reviewed Earle's

A-file or searched the computer indices. Sassone stated that

whoever performed these tasks to prepare the CNR would have

undertaken the same searches that Sassone herself had carried out

when she had independently concluded that Earle had not applied for

or received permission to reenter the United States.

The defense in this case was that the government had not

met its burden of proof beyond a reasonable doubt that Earle had

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not obtained the permission of the Attorney General to reapply for

admission into the country. In its closing, the defense conceded

that "there really is no dispute that Mr. Earle is an alien . . .

[or] that Mr. Earle was previously deported . . . [or] that in

February 2004, Mr. Earle was found in the United States." Defense

counsel stressed that Jones was not made available to testify to

the accuracy of the CNR; that the government had not provided any

printouts from its searches of the relevant computer indices; and

that there were uncertainties raised by the history of filing and

retention problems at CIS's document service centers.

The jury returned a guilty verdict. At sentencing, the

district court imposed a 16-level enhancement under U.S.S.G.

§ 2L1.2 for a prior deportation after conviction of a crime of

violence -- namely, assault and battery with a dangerous weapon.

The district court sentenced Earle to 78 months, at the upper limit

of the applicable Guidelines range. Earle will likely be deported

after serving his sentence.

II. Asserted Trial Errors

A. Confrontation Clause Challenge

Before Crawford effected a change in the law concerning

Confrontation Clause challenges, this court in United States v.

Ventura-Meléndez, 275 F.3d 9 (1st Cir. 2001), rejected a

Confrontation Clause challenge to the admission of a CNR. Id. at

15-16 (concluding that CNR demonstrated "particularized guarantees

-8-
of trustworthiness" (quoting Ohio v. Roberts, 448 U.S. 56, 66

(1980)) (internal quotation marks omitted)). Earle's appeal asks

us to reconsider this issue in light of the Supreme Court's new

framework for Confrontation Clause challenges, as articulated in

Crawford.

This question about the Confrontation Clause and CNRs

arises because Congress has put the burden on the government to

prove a negative -- that the Attorney General did not grant

permission to reapply for admission. Lay people might logically

think the statute would place the burden on the defendant to prove

he had received consent to reapply.4

When the government offered the CNR into evidence at

trial, defense counsel objected, arguing that admission of the CNR

without an opportunity to cross-examine the person who prepared the

document would violate Earle's right to confrontation. The

district court overruled the objection, holding that the CNR was

not "testimonial" within the meaning of Crawford. In reaching this

conclusion, the district court adopted the reasoning of United

4
Congress has placed some burdens on the alien. Subsection
1326(d) provides limited circumstances under which an alien may
collaterally attack a previous deportation order. The alien must
show (1) that he exhausted any available administrative remedies,
(2) that the deportation proceedings improperly deprived him of the
opportunity for judicial review, and (3) that the entry of the
deportation order was fundamentally unfair. 8 U.S.C. § 1326(d);
see also United States v. DeLeon, 444 F.3d 41, 44-45 (1st Cir.
2006). Earle does not argue that he meets the standards of
subsection 1326(d).

-9-
States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005), and

United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005). The

district court ruled that the CNR was admissible under Federal Rule

of Evidence 803(10).5

We review the district court's legal conclusions

regarding the Confrontation Clause de novo. United States v.

Rondeau, 430 F.3d 44, 47 (1st Cir. 2005); United States v. Brito,

427 F.3d 53, 59 (1st Cir. 2005). If a constitutional error has

occurred, we must order a new trial unless the government has shown

that any error was "harmless" beyond a reasonable doubt. See Olden

v. Kentucky, 488 U.S. 227, 232 (1988); United States v. Pacheco,

434 F.3d 106, 116 (1st Cir. 2006); United States v. Coker, 433 F.3d

39, 47 (1st Cir. 2005).

5
Rule 803 provides:

The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
. . .
(10) Absence of public record or entry. To
prove the absence of a record, report,
statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a
matter of which a record, report, statement,
or data compilation, in any form, was
regularly made and preserved by a public
office or agency, evidence in the form of a
certification in accordance with rule 902, or
testimony, that diligent search failed to
disclose the record, report, statement, or
data compilation, or entry.

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 The Confrontation Clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him." U.S. Const. amend. VI.

In Crawford, the Supreme Court abrogated the rule of Ohio v.

Roberts that admission of hearsay does not run afoul of the

Confrontation Clause "if the declarant [is] unavailable and the

statement [falls] under a 'firmly rooted hearsay exception' or

otherwise [bears] particularized guarantees of trustworthiness."

Horton v. Allen, 370 F.3d 75, 83 (1st Cir. 2004) (quoting Roberts,

448 U.S. at 66). Instead, Crawford held that the Confrontation

Clause bars admission of testimonial hearsay in a criminal case

unless the declarant is unavailable and the accused has had a prior

opportunity for cross-examination. 541 U.S. at 68. More recently,

in Davis v. Washington, 126 S. Ct. 2266 (2006), the Court held that

the Confrontation Clause applies only to testimonial hearsay. Id.

at 2274.

Crawford analysis generally requires a court to consider

two threshold issues: (1) whether the out-of-court statement was

hearsay, and (2) whether the out-of-court statement was

testimonial. See Crawford, 541 U.S. at 68; United States v. Maher,

454 F.3d 13, 20 (1st Cir. 2006).

As to the first issue, it is undisputed that the CNR

constituted hearsay. The CNR contained statements made by a

declarant not present at trial, and those statements were offered

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into evidence to prove the truth of the matter asserted -- that,

after a diligent search of Earle's A-file, no evidence was found

that the defendant had obtained consent to reapply for admission to

the United States. See Fed. R. Evid. 801(c) (defining hearsay).

Earle's Confrontation Clause argument hinges on the

second issue -- whether or not the CNR is "testimonial." The

Supreme Court expressly declined in Crawford to provide "a

comprehensive definition of 'testimonial.'" 541 U.S. at 68. The

Court followed a similar approach in Davis, resolving the two cases

before it "[w]ithout attempting to produce an exhaustive

classification of all conceivable statements . . . as either

testimonial or nontestimonial." 126 S. Ct. at 2273. The Court

did, however, list in Crawford three illustrative formulations of

the "core class of 'testimonial' statements," 541 U.S. at 51: (1)

"ex parte in-court testimony or its functional equivalent -- that

is, material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably expect

to be used prosecutorially," id.; (2) "extrajudicial statements

. . . contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions," id. at

51-52 (omission in original) (quoting White v. Illinois, 502 U.S.

346, 365 (1992)) (internal quotation marks omitted); and (3)

"statements that were made under circumstances which would lead an

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objective witness reasonably to believe that the statement would be

available for use at a later trial," id. at 52.

This court, applying Crawford to determine whether a

statement is testimonial, has asked whether "an objectively

reasonable person in [the declarant's] shoes would understand that

the statement would be used in prosecuting [the defendant] at

trial." Maher, 454 F.3d at 21; see also Brito, 427 F.3d at 60.

Other courts of appeals have adopted similar tests. See United

States v. Gilbertson, 435 F.3d 790, 795-96 (7th Cir. 2006); United

States v. Hinton, 423 F.3d 355, 359-60 (3d Cir. 2005); United

States v. Cromer, 389 F.3d 662, 673-74 (6th Cir. 2004); United

States v. Saget, 377 F.3d 223, 228-29 (2d Cir. 2004). In Davis,

the Supreme Court also asked whether the particular circumstances

surrounding each police interrogation objectively indicated a

primary purpose that was testimonial. 126 S. Ct. at 2277.

Earle presents a serious argument that the CNR admitted

at his trial was testimonial. His lead argument is that the CNR

qualifies as testimonial under all three of the formulations

provided in Crawford, as well as under this court's approach in

Maher and Brito. He argues the CNR is a formal document which was

in fact prepared in order to be used at trial. See Crawford, 541

U.S. at 51-52. Earle also argues that the CNR qualifies as

testimonial under the test previously applied in this circuit: an

objectively reasonable person asked to search Earle's A-file and

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prepare a CNR would understand that the document would be used for

prosecutorial purposes. See Maher, 454 F.3d at 21; Brito, 427 F.3d

at 60.

The government concedes here that "the CNR at issue in

this case . . . was only created in anticipation of litigation."6

The government argues that, nonetheless, the reasonableness of an

expectation of prosecutorial use "do[es] not transform an otherwise

non-testimonial business record, made in the normal course of

business, into testimonial evidence"; it cites decisions from other

circuits for support. See United States v. Urqhart, 469 F.3d 745,

748-49 (8th Cir. 2006) (rejecting Confrontation Clause challenge to

admission of CNR); Cervantes-Flores, 421 F.3d at 830-34 (same);

Rueda-Rivera, 396 F.3d at 680 (same).7

The thrust of these cases is that CNRs are not barred by

the Confrontation Clause because they closely resemble business

records, and business records, under Crawford, constitute a common

6
In response to a question from the court, the government
filed a letter pointing out that CNRs may be made for purposes
other than litigation. For example, if an alien wishes to prove
that he has not applied for United States citizenship (perhaps for
purposes of retaining citizenship in another country), the agency
would investigate and, if appropriate, issue a CNR certifying that
no such application exists. The government's letter also stated
that "the agency does not routinely create CNRs documenting" the
"non-existence of an alien's application for permission to return
to the United States."
7
The Fourth Circuit, in an unpublished opinion, has also
taken a position similar to that taken by the Fifth, Eighth, and
Ninth Circuits. United States v. Mendoza-Orellana, 133 F. App'x
68, 69-70 (4th Cir. 2005) (per curiam) (unpublished).

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law exception to the right of confrontation. 541 U.S. at 56 ("Most

of the [common law] hearsay exceptions covered statements that by

their nature were not testimonial -- for example, business records

or statements in furtherance of a conspiracy." (emphasis added));

id. at 54 (commenting that the Sixth Amendment is "most naturally

read as a reference to the right of confrontation at common law,

admitting only those exceptions established at the time of the

founding"); see also id. at 76 (Rehnquist, C.J., concurring in

judgment) (characterizing the Court's analysis of "testimony" as

"exclud[ing] at least some hearsay exceptions, such as business

records and official records" (emphasis added)).

The government points out that certificates of

authenticity were admissible at common law, even when created with

an eye toward litigation.8 The government argues that a CNR, by

analogy to a certificate of authenticity, should be treated like a

business record.9 The government makes a functional argument.

8
The Advisory Committee Note to Federal Rule of Evidence
902(4) states: "The common law and innumerable statutes have
recognized the procedure of authenticating copies of public records
by certificate. The certificate qualifies as a public document,
receivable as authentic when in conformity with [various
authentication requirements]." See also 5 J. Wigmore, Evidence
§ 1674(1)-(2), at 824 (Chadbourn rev. 1974) [hereinafter 5 Wigmore]
(noting that typically at common law there was no hearsay exception
for certificates of authenticity if the office holder did not have
express authority to make such a certificate, but that certificates
pertaining to "facts covered by the terms of [an office holder's
express] authority" were admissible (emphasis omitted)).
9
The government characterizes the common law hearsay
exception for certificates of authenticity as being part of the

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Both certificates of authenticity and CNRs, the government says,

merely reflect the state of a set of routinely kept business

records existing prior to litigation.10 See Cervantes-Flores, 421

F.3d at 833. As the government points out, an official would have

to perform the same kinds of searches whether he was asked to

prepare a certificate of authenticity or a CNR. See id. at 832

("In either case, someone would have . . . to search the INS

database to verify the document's existence or nonexistence.").

Moreover, both federal and state officials commonly perform

searches of public documents in preparation for criminal trials in

order to prepare CNRs, and the effect of requiring testimony

instead of CNRs would be very burdensome.

Earle points out a difference between certificates of

authenticity and CNRs: a certificate of authenticity merely

establishes the validity of a second document that contains

probative evidence, whereas a CNR itself contains probative

evidence. With a certificate of authenticity, little would be

common law exceptions for public records and business records. A
leading treatise places certificates of authenticity under the
heading of "Official Statements," rather than "Regular Entries."
5 Wigmore, supra, at xii-xiv, xvi-xviii. This does not affect our
general discussion below. The question posed here is not whether
documents certifying the authenticity of business or official
records are an exception to Crawford.
10
The government argues that both certificates of authenticity
and CNRs rely on records that themselves would be admissible at
trial. See United States v. García, 452 F.3d 36, 42 (1st Cir.
2006) (holding that criminal defendants have no right to confront
officials who "routinely record warrants of deportation").

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gained from cross-examining the authenticator as to how diligent he

was in searching for the authenticated document; the production of

the authenticated document speaks for itself, as it is available to

be examined at trial. By contrast, a defendant might benefit from

cross-examining the maker of the CNR as to the details of the

search, and from exploring the possibility that a record has been

overlooked, misfiled, or otherwise lost.

Further, the defendant argues that even if certificates

of authenticity were admissible at common law, it is clear that

CNRs were not so admissible, and this was so perhaps for reasons

unrelated to the rule of completeness.11 5 Wigmore, supra,

§ 1678(7), at 867. As Earle points out, two federal cases from the

early twentieth century clearly express hearsay concerns about the

admission of CNRs. Id. at 867 n.3; see United States v. Bass, 64

F.2d 467, 470 (7th Cir. 1933) ("Proof that something is not to be

found in the records may not be made by a mere certificate of the

11
At common law, the rule of completeness

require[d] that the whole of a document be
shown forth, in proving any part of it, so
that the tribunal may judge better of the
significance of the whole and the precise
interpretation of any part. At common law,
therefore, it was entirely settled that no
custodian had authority to certify any less
than the entire and literal terms of the
original -- in short, a copy in the strict
sense of the word; and the rule was applied to
all varieties of documents.

5 Wigmore, supra, § 1678(6), at 863.

-17-
custodian, but must be shown by testimony with opportunity to

cross-examine."); United States v. Bukis, 17 F. Supp. 77, 78 (E.D.

Pa. 1936) ("[P]roof that something is not to be found in the

records may not be made by a mere certificate of the custodian, but

is a matter of fact which must be shown by the testimony of a

person who has searched the records, with an opportunity to

cross-examine.").

Earle also attacks the government's underlying assumption

that little weight should be given to the fact that the CNR was

prepared to be used in litigation. He cites to Crawford, which

states: "We cannot agree with THE CHIEF JUSTICE that the fact

'[t]hat a statement might be testimonial does nothing to undermine

the wisdom of one of these [hearsay] exceptions.'" 541 U.S. at 56

n.7 (alterations in original) (quoting id. at 74 (Rehnquist, C.J.,

concurring in judgment)).

Given both the common law and the Supreme Court's limited

guidance on what is testimonial, we cannot easily dismiss either

Earle's or the government's arguments as without merit. In the

end, we do not decide the Confrontation Clause issue because it is

not necessary to the decision. On the facts of this case, if there

were any error in admitting the CNR, the government has met its

burden of showing that any such error was harmless beyond a

reasonable doubt.

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 When evaluating harmlessness, we consider a number of

factors including the importance of the challenged statement in the

prosecution's case, whether the statement was cumulative, the

presence or absence of evidence corroborating or contradicting the

statement on material points, the extent of cross-examination

otherwise permitted, and the overall strength of the prosecution's

case. See Olden, 488 U.S. at 233; Dolinger v. Hall, 302 F.3d 5, 12

n.6 (1st Cir. 2002). We will affirm a conviction if the "contested

. . . statements . . . were at best cumulative of other compelling

proof that [the defendant] committed the charged [crime]." United

States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997).

Ruth Jones' statement in the CNR -- that "after a

diligent search relating to [Earle's A-file] . . ., no evidence is

found to exist in the records that the defendant obtained consent

. . . to reapply for admission in the United States" -- is simply

cumulative of Sassone's testimony. Sassone's testimony was

recounted earlier. The cumulative nature of the CNR is self-

evident.12

Moreover, Earle had, and took, the opportunity to cross-

examine Sassone about the topics on which he was unable to cross-

examine Jones. Defense counsel asked Sassone about her own review

12
At oral argument, Earle's counsel suggested that Sassone's
statements and Jones' CNR were distinguishable because Jones was a
more senior official. Jones' seniority has no bearing on the
harmless error analysis. It does not make the contents of the CNR
any less cumulative of Sassone's testimony.

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of the A-file and the computer indices, the misfiling of documents,

the possible existence of multiple A-files, the outsourcing of

tasks to private contractors, and the destruction of official

documents. Defense counsel also questioned Sassone about the

Record Services Branch's practices for preparing CNRs, in

particular Sassone's understanding that Jones would not have

reviewed the A-file herself. Further, the defense referred to key

parts of its cross-examination of Sassone in its closing arguments,

making largely the same points.

"Because the challenged statement[] merely duplicated

what was otherwise properly admitted, . . . there is no 'reasonable

possibility' that the challenged statement[], if [it was]

erroneously admitted, influenced the verdict against [the

defendant]." Bartelho, 129 F.3d at 670 (quoting United States v.

Rivera-Santiago, 107 F.3d 960, 967 (1st Cir. 1997)). The

government has proved beyond a reasonable doubt that Earle would

have been convicted even if the CNR had not been admitted into

evidence.

B. Jury Instruction on Lawfulness of Deportation

We review de novo "a properly preserved objection to the

failure to give a requested jury instruction." United States v.

Buttrick, 432 F.3d 373, 376 (1st Cir. 2005), cert. denied, 126 S.

Ct. 2861 (2006).

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 Defense counsel objected to the lack of an instruction

stating that the government had the burden of proving that the

deportation was a lawful deportation. The district court overruled

the objection, noting that the Supreme Court had decided in United

States v. Mendoza-Lopez, 481 U.S. 828 (1987), that lawfulness of

deportation was not an element of the offense defined at 8 U.S.C.

§ 1326. Id. at 834-37.

The district court did instruct the jury that there were

four elements of the crime, each of which the government had to

prove beyond a reasonable doubt: (1) that Earle was an alien at the

time alleged in the indictment, (2) that he had previously been

deported from the United States, (3) that he was later found to be

in the United States, and (4) that he had not received express

consent from either the Attorney General or the Secretary of DHS to

reenter the United States. On the second element, the district

court explained that "the Government needs to prove beyond a

reasonable doubt that the deportation proceeding actually occurred

and that the end result was that the defendant was, in fact,

deported."

On appeal, Earle concedes that the Supreme Court has

previously held that lawfulness of deportation is not an element of

§ 1326. He argues, however, that subsequent Supreme Court cases

such as Apprendi v. New Jersey, 530 U.S. 466 (2000), require the

issue of lawfulness to be proven to a jury beyond a reasonable

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doubt. Apprendi does not, however, require a jury to be instructed

that the government bears the burden of proving something that is

not an element of a crime. Id. at 477.

The defendant's argument is without merit. In an illegal

reentry prosecution, the lawfulness of deportation simply is not an

element of the offense. Earle was not entitled to a jury

instruction on the lawfulness of deportation.

III. Asserted Sentencing Errors

A. Guidelines Enhancement for Deportation After Conviction of a
Prior Crime of Violence

This court reviews the district court's interpretation of

the Sentencing Guidelines de novo. United States v. Alli, 444 F.3d

34, 37 (1st Cir. 2006). We review the district court's factual

findings for clear error. Id.

At Earle's sentencing, defense counsel objected to a 16-

level enhancement pursuant to section 2L1.2 of the Sentencing

Guidelines, on the basis that Earle's prior state conviction was

not for a crime of violence. Section 2L1.2(b)(1) provides: "If the

defendant previously was deported, or unlawfully remained in the

United States, after -- (A) a conviction for a felony that is . . .

a crime of violence . . . increase [offense level] by 16 levels."

The Guidelines in turn define "crime of violence" as

any of the following: murder, manslaughter,
kidnapping, aggravated assault, forcible sex
offenses, statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling,

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 or any offense under federal, state, or local
law that has as an element the use, attempted
use, or threatened use of physical force
against the person of another.

Id. cmt. n.1(B)(iii) (emphasis added). The district court held

that Earle had pled guilty to a state crime, Mass. Gen. Laws ch.

265, § 15A(b), that had as an element of the offense the use or

threatened use of physical force against another person.

On appeal, Earle argues that the December 1997 criminal

complaint against him in state court did not charge a crime against

a person, but only against an entity, the Commonwealth. He relies

on language in the complaint, which stated that he "did, by means

of a dangerous weapon, MOTOR VEHICLE, assault and beat COMM OF

MASS, in violation of G.L. c.265, s.15A" (emphasis added).

The parties agree that the approach used in Taylor v.

United States, 495 U.S. 575 (1990), is applicable to U.S.S.G.

§ 2L1.2. See United States v. Londono-Quintero, 289 F.3d 147, 151

n.3 (1st Cir. 2002) (applying Taylor approach in considering claim

that a state conviction did not qualify as an "aggravated felony").

In Taylor, the Supreme Court held that a district court

should follow a two-step analysis when determining whether a

previous burglary conviction under state law qualifies as a

predicate offense under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(1). First, the district court should determine,

based on the definition of the state offense, whether conviction

under the state statute "necessarily implies that the defendant has

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been found guilty of all the elements of generic burglary." 495

U.S. at 599. If not, then the district court may consider the

charging document and the jury instructions in determining whether

the conviction was in fact for generic burglary. Id. at 602.

In Shepard v. United States, 544 U.S. 13 (2005), the

Court considered previous convictions obtained through guilty pleas

and held that a district court, when considering predicate offenses

under the ACCA, "is generally limited to examining the statutory

definition, charging document, written plea agreement, transcript

of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented." Id. at 16.

We begin with the statutory definition. The version of

Mass. Gen. Laws ch. 265, § 15A in effect in 1997 contained two

subsections. Subsection (b) set out the appropriate punishment for

"[w]hoever commits assault and battery upon another by means of a

dangerous weapon." Mass. Gen. Laws ch. 265, § 15A(b) (2000)

(emphasis added). The statutory definition admits to no

interpretation other than a crime that involves the use of physical

force against another person. Id.; see also Commonwealth v. Ford,

677 N.E.2d 1149, 1151 (Mass. 1997) (noting that, under § 15A, a

defendant charged with assault and battery must have either used

"intentional and unjustified . . . force upon the person of

another" or intentionally committed "a wanton or reckless act . . .

causing physical or bodily injury to another" (quoting Commonwealth

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v. Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986)) (internal

quotation marks omitted)).

The dispute here is whether the district court erred in

relying on the state statutory definition of the crime, Mass. Gen.

Laws ch. 265, § 15A(b), rather than on the face of the complaint.

Although the criminal complaint technically charged Earle with

assault and battery with a dangerous weapon against the

Commonwealth of Massachusetts, the state court gave short shrift to

the argument that the complaint did not properly charge Earle with

a crime under § 15A(b). Earle, hoping to overturn his conviction,

made this same argument before the state court, and it was

rejected. As there is no indication that U.S.S.G. § 2L1.2

contemplates collateral attack, we will not question the state

court's conclusion that Earle was properly convicted under

§ 15A(b). Cf. Custis v. United States, 511 U.S. 485, 491-93

(1994).

The district court committed no error in applying the 16-

level enhancement pursuant to U.S.S.G. § 2L1.2.13

B. Applicability of 8 U.S.C. § 1326(b)(2) to Sentencing

We review legal conclusions of a sentencing court de

novo. United States v. González-Vélez, 466 F.3d 27, 40 (1st Cir.

13
Since the district court's decision was well supported by
the state statutory definition, we need not consider the
defendant's arguments concerning the district court's passing
reference to the police report of the underlying incident.

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2006). However, if the defendant fails to preserve a sentencing

issue, we review only for plain error. United States v. Savarese,

385 F.3d 15, 21 (1st Cir. 2004). Further, if the defendant

affirmatively waives an issue, that issue generally may not be

reviewed. See United States v. Hansen, 434 F.3d 92, 101 (1st Cir.

2006); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.

2002). We bypass the government's waiver argument.

Earle argues that his Sixth Amendment rights were

violated when the district court sentenced him in excess of the 24-

month maximum sentence provided for by 8 U.S.C. § 1326(a). Earle

acknowledges that, under 8 U.S.C. § 1326(b)(2), the maximum

sentence under § 1326 is 20 years if the defendant's prior removal

"was subsequent to a conviction for commission of an aggravated

felony." He argues that the government was required to prove the

commission of an aggravated felony to the jury beyond a reasonable

doubt. For support, he cites Apprendi, 530 U.S. at 520 (Thomas,

J., concurring), and United States v. Booker, 543 U.S. 220, 231-33

(2005).

Earle's argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998). In Almendarez-Torres, the

Supreme Court held that the fact of prior conviction for sentencing

purposes need not be proved to a jury beyond a reasonable doubt.

Id. at 226-27 (considering the "aggravated felony" penalty

provision under 8 U.S.C. § 1326(b)(2)). This court has repeatedly

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stated post-Apprendi that we are bound by Almendarez-Torres until

the Supreme Court expressly overrules it. See, e.g., United States

v. DeLeon, 444 F.3d 41, 55 (1st Cir. 2006); United States v.

Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir. 2006) (en banc); United

States v. Ivery, 427 F.3d 69, 75 (1st Cir. 2005). Earle has

preserved the issue for further review.

IV. Conclusion

For the foregoing reasons, we affirm Earle's conviction

and sentence.

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