United States Court of Appeals
For the First Circuit
No. 05-2848
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO CONTRERAS PALACIOS,
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 Lipez, Circuit Judge.
Page Kelley for appellant.
Paul R. Moore, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
June 28, 2007
LIPEZ, Circuit Judge. Mario Rudolfo Contreras Palacios,
convicted of illegal reentry into the United States, claims that
the testimony and documentary evidence offered by the government
were insufficient to support his conviction on the alienage element
of that offense. He also argues that Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which held that prior convictions need
not be found by a jury beyond a reasonable doubt for the purpose of
imposing sentencing enhancements, is no longer good law because of
subsequent Supreme Court precedents. We reject both arguments and
affirm the conviction and sentence.
I.
Identified as an alien1 by the Department of Homeland
Security ("DHS") while in custody of the Middlesex County,
Massachusetts Sheriff's Office in December 2003, Contreras was
indicted for illegally reentering the United States after a prior
deportation, under 8 U.S.C. § 1326(a), (b). Contreras stipulated
that he had previously been deported and that he had not received
permission to reenter the country. He waived his right to a jury,
proceeded to a bench trial, and argued that he was not an alien.
At trial, the government presented a single witness:
Joann Sassone, the records custodian for the Massachusetts branch
of the Citizenship and Immigration Service ("CIS") of the DHS.
1
Under 8 U.S.C. § 1101(a)(3), an alien is any person "not a
citizen or national of the United States."
-2-
Lacking any independent knowledge about the defendant and his
history, Sassone testified solely on the basis of the "Alien File"
("A-file")2 for Mario Rudolfo Contreras Palacios, which the
defendant stipulated was "associated" with him. Sassone testified
that the CIS assigns a unique registration number to each alien it
encounters, and that all communication with or regarding an alien
is preserved in that individual's A-file. She identified the most
significant documents found in the A-file for Contreras Palacios,
which included: a Guatemalan birth certificate; a Guatemalan
identity document, known as a "cedula"3; a Record of Deportable
Alien, dated September 7, 1984; a letter from the U.S. consulate in
Guatemala; an envelope mailed from El Paso, Texas to the defendant;
and a Warrant of Deportation dated August 22, 2000.4 The cedula
and the Warrant of Deportation contained photographs of and
signatures by the named individual.
2
For a description of an "A-file," see United States v.
Earle, __ F.3d __, 2007 WL 1616515, at *2 n.2 (1st Cir. 2007).
3
The cedula is a passport-like identity document, bearing a
government seal and signed by a government official. It contains
a form in which identifying information — such as name, parents'
names, birth date, address, military service, eye color, and hair
color — is recorded (here, in handwriting) by a government
official. The document also contains a photograph, a single
fingerprint, and the signature of the individual.
4
Sassone testified that a Warrant of Deportation is a form
routinely completed during the deportation process, in order to
give DHS "the power to have this person removed from the United
States," as well as to physically record the date and method by
which the person was removed.
-3-
The file contained a written request from the U.S.
consulate in Guatemala City, to a Guatemalan official, asking for
a birth record for a Mario Rudolfo Contreras Palacios. The request
also included his birth date, place of birth, and parents' names.
Sassone opined that the birth certificate was obtained as a result
of this request, which she said was prompted by a request from a
Border Patrol Agent, although she had no direct knowledge of how
the Border Patrol obtained the identifying information set forth in
the letter requesting the birth certificate. She testified that
the birth certificate was likely requested as a routine component
of deportation proceedings, while Contreras was held in custody.
She also theorized, based on the materials in the file, that the
cedula was mailed to appellant, at his request, while he was in
custody. Sassone testified that nothing in the A-file was
inconsistent with the identifying information contained in the
birth certificate and cedula.
The government called no other witnesses. Instead, it
relied heavily upon the defendant-appellant's factual stipulations.
In addition to agreeing that the A-file was associated with him,
the defendant agreed that he was deported in August 2000, that he
was found in the U.S. in 2003, that he had not received permission
to enter the U.S. prior to his 2003 detention, and that the
Guatemalan birth certificate was authentic. The government argued
that these stipulations, along with the A-file, as explained by
-4-
Sassone, proved beyond a reasonable doubt that the defendant was
the individual named Contreras identified in the file, and that he
was an alien.
Contreras neither testified nor presented any witnesses
on his behalf. Instead, he argued that the government had not
carried its burden of proof because there was insufficient evidence
that he was the person described in the documents (particularly the
birth certificate and cedula) admitted at trial. Specifically, he
claimed that the government lacked direct evidence of his alien
status, such as fingerprint evidence tying him to the cedula or an
admission or statement by him that his birth date was that listed
on the birth certificate. Indeed, upon cross-examination, Sassone
agreed that there were multiple records in the file reflecting
Contreras' statement that he believed he had been born in America
and was, therefore, a U.S. citizen. Contreras also pointed out,
through counsel's closing argument, that the A-file contained
multiple documents in which he claimed that his name was Oscar
Raway and that he was an American citizen.
After Contreras filed a Rule 29 motion, the district
court found summarily that there was sufficient evidence to show,
beyond a reasonable doubt, that he was an alien. Contreras was
convicted of illegal reentry and sentenced to seventy-seven months
of incarceration. He then filed this appeal.
-5-
II.
Contreras raises two issues on appeal. First, he argues
that there was insufficient evidence on the alienage element of the
offense to support his conviction. Second, he argues that the
sentence, although consistent with Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), was improper. He claims that
Almendarez-Torres is no longer valid law because of the subsequent
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). We
address these arguments in turn.
A. Sufficiency of the Evidence
To secure a conviction under 28 U.S.C. § 1326, the
government must prove that the defendant: (1) is an alien, (2) was
previously deported, and (3) thereafter entered, or attempted to
enter, the United States without permission. See United States v.
Garcia, 452 F.3d 36, 43 (1st Cir. 2006). As noted, only the first
of these elements is at issue here. Contreras has conceded that he
was previously deported and that he reentered the country without
permission.
We review the district court's finding of sufficient
evidence de novo. Id. We evaluate sufficiency of the evidence
claims to determine "whether, after assaying all the evidence in
the light most amiable to the government, and taking all reasonable
inferences in its favor, a rational factfinder could find, beyond
a reasonable doubt, that the prosecution successfully proved the
-6-
essential elements of the crime." United States v. O'Brien, 14
F.3d 703, 706 (1st Cir. 1994).
This case is based on circumstantial evidence. Contreras
rightly argues that there is no single document that, on its face,
definitively connects him to the Guatemalan birth certificate or
cedula. However, the government asked the district court to find
that the defendant was an alien based, in part, on his physical
similarity to the photograph on the cedula.5 The government also
requested that the court look at the defendant's face and observe
a scar on his lower lip and chin, matching a scar described on the
1984 Record of Deportable Alien ("RDA"), a form completed by INS
agents when a suspected alien is detained pending removal
proceedings. While the district court did not articulate a
specific finding that the man sitting in the courtroom appeared to
be the same person shown in the picture on the cedula, with the
same identifying scar noted on the RDA, we infer that the court so
found. The court made multiple comments reflecting its awareness
that the government, to carry its burden, had to connect the
defendant to the two identity documents — the birth certificate and
cedula — which establish that the party identified therein was born
5
As the government argues in its brief on appeal, it "did not
argue to the district court, and does not here contend, that the
photograph on the cedula was indisputably that of the defendant.
But the photograph is entirely consistent with the defendant's
appearance at trial, when allowance for normal aging is considered.
Thus, the photograph does represent meaningful evidence that the
cedula pertained to him."
-7-
out of the jurisdiction of the United States. Relying on its
ability to observe the defendant in the courtroom, the court could
reasonably conclude that the photograph on the cedula was
consistent with the appearance of the defendant.6
In addition, both the birth certificate and the cedula7
identify a person named Mario Contreras Palacios,8 born on October
6
At the time of trial, Contreras (assuming, in light of our
conclusions, that his birthdate was the one reflected in the birth
certificate) was fifty years old. There is no date associated with
the photograph on the cedula, so we cannot discern (and assume the
district court could not determine) how old he was when that
picture was taken.
7
The birth certificate and cedula, both in Spanish, were
offered into evidence by the government without written English
translations. Although both were translated by an interpreter for
the district court, that translation was not incorporated into the
trial transcript. This was error.
Under First Circuit Local Rule 30(d), documents may not be
included in an appendix to the briefs if they are written in a
foreign language and unaccompanied by translations. The government
was particularly remiss in not making translations of the cedula
and birth certificate part of the trial record, given the
importance of these documents to the government's sufficiency of
the evidence argument.
In order to address the sufficiency claim on appeal, however,
we refer to the birth certificate and cedula for very limited
purposes. We look to the written portion of these documents only
to compare the name, birthdate, and parents' names listed thereon
to those appearing on the RDA. Because our reliance on these
documents is so limited, and because neither party raises an
objection to our consideration of them, we are willing to consider
the documents despite the absence of translations.
8
We note that the birth certificate names "Mario Roberto
Contreras Palacios." (Emphasis added.) The Vice Consul of the
United States requested that the Civil Registrar of Guatemala
provide a copy of the birth certificate for "Mario Rodolfo
Contreras Palacios," (emphasis added) and it appears that this
certificate was produced in response. In fact, discrepancies in
the middle name appear to pervade the file. The cedula lists the
-8-
29, 1954 to a mother named Isabel Palacios and a father named Jose
Mario Contreras. Those essential facts match the biographical
information appearing on other documents in the A-file, including,
notably, the RDA.
Contreras argued at trial that the government lacked
evidence showing that he, the person on trial, provided the
biographical information that appeared on the RDA. The government
argued that the court could infer that the defendant had provided
that information. Importantly, in support of that inference,
information appearing on the RDA matches up with other documents in
the A-file linked to the defendant. An INS agent noted on the RDA
that the "subject has claimed on many occasions to be a U.S.
citizen by the name of Oscar Efrain Raway." That alias matches the
alias provided on the 2000 Warrant of Deportation, which the
defendant stipulated as a record of his prior deportation. The
same alias also appears on some handwritten notes in the A-file,
apparently by an INS agent, dated from 1983; a judgment of
middle name as Rodolfo, while numerous other documents in the file
spell the name as Rudolfo. Many of these same documents list an
"AKA" of Mario Roberto Contreras Palacios; they also list AKAs of
Oscar Raway and Oscar Efrain Raway. We conclude that the different
middle names and the aliases are of no consequence. It appears to
us that a reasonable factfinder could easily conclude that this
person used two names, one his "real" name (albeit with some
confusion regarding the middle name) and a pseudonym (with a few
variations thereof). No document in the A-file indicates that the
person called himself by any name other than a variation of these
two names. Additionally, the defendant-appellant has not argued
that discrepancies in the middle name are independent evidence of
mistaken identity.
-9-
conviction for illegal reentry from the District Court for the
Southern District of New York in 1990; and an FBI "rap sheet" (as
described by Sassone) from 1983. The consistent use of a single
alias throughout these documents, including the 2000 document that
the defendant conceded as having applied to him, bolsters the
government's argument that Contreras was the alien detained in
1984, whose biographical information was described in the RDA and
matched the Guatemalan birth certificate and cedula.
In further support of its case, the government also noted
that the RDA included a notation that the subject alien stated he
could "obtain his own ID records, which he has at home in [El Paso,
Texas]." The RDA was dated September 7, 1984, and the A-file
contains an envelope postmarked September 22, 1984, addressed to
Mario Contreras Palacios at the Service Processing Center in El
Paso, Texas. (Sassone testified that the Service Processing Center
was the location where the alien was physically detained.) The
return address on the envelope included the name Maria de Jesus
Castruita; the RDA listed Maria de Jesus Castruita as Contreras'
"common law wife." Immediately adjacent to the envelope in the A-
file was the cedula. Sassone testified that she believed, on the
basis of the documents, that the defendant told INS agents that he
could obtain his national identity documents, requested the
document from his common law wife, and she then mailed the cedula
to him at the detention center. The court could reasonably draw
-10-
upon this evidence to support the inference that the defendant was
the person detained in 1984 and that the cedula was his proof of
identity, showing his status as an alien.
In short, construing the evidence in the light most
favorable to the government, as we must, we conclude that there was
sufficient evidence for a reasonable fact finder to conclude that
Contreras was an alien.
B. Sentencing & Almendarez-Torres
Contreras claims that his sentence was improper because
the district court imposed a sentencing enhancement based on his
prior convictions, in violation of his rights under Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Supreme Court has held that
sentencing enhancements based on prior convictions are permissible
without a finding on the fact of conviction beyond a reasonable
doubt. Almendarez-Torres v. United States, 523 U.S. 224, 226-27
(1998). Although Apprendi held that factors leading to an
increased sentence must be charged in the indictment and found by
a jury, its holding expressly excluded prior convictions from this
general rule. 530 U.S. at 490. As we have stated many times, we
are bound by Almendarez-Torres unless and until the Supreme Court
overturns it. See, e.g., Earle, 2007 WL 1616515, at *11 ("This
court has repeatedly stated post-Apprendi that we are bound by
Almendarez-Torres until the Supreme Court expressly overrules
it."). There is no basis for disturbing Contreras' sentence.
-11-
Affirmed.
-12-