United States v. Diaz

United States Court of Appeals
For the First Circuit

No. 06-2378

UNITED STATES OF AMERICA,

Appellee,

v.

TONY DIAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.

William A. Hahn, by Appointment of the Court, with whom Hahn
& Matkov was on brief for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, and Paul R. Moore,
Assistant U.S. Attorney, were on brief for appellee.

March 7, 2008
 STAHL, Senior Circuit Judge. Defendant-appellant Tony

Diaz was convicted of one count of possession of a firearm and

ammunition by an illegal alien. He was sentenced to 262 months in

prison followed by 60 months of supervised release. Diaz appeals

the district court’s denial of his motion to suppress evidence, his

conviction, and the sentencing enhancement imposed pursuant to the

Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). After

considering Diaz's various arguments on appeal, we affirm his

conviction and sentence.

I. Background

On July 14, 2004, at approximately 12:30 a.m., shots were

fired at Edison Gonzalez and his brother Henry while they were

sitting in their car in a restaurant parking lot in Lawrence,

Massachusetts. The Gonzalez brothers immediately called 911 and

informed the police that they had been shot at by a drunk man

driving a blue BMW, license plate number 3703ZE. The brothers then

drove to the Lawrence police station where they met with Detective

Brian Burokas and Sergeant Charles Carroll. Edison told the

detectives that he could identify the shooter and that he knew

where the shooter lived, though he did not know the shooter’s name.

Edison accompanied the detectives to the apartment that he believed

to be the residence of the shooter, but the shooter was not there.

After the police received the call from the Gonzalez

brothers, the BMW's description and license plate number were

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broadcast over the dispatch, along with a warning that the shooter

might be drunk. Sometime thereafter, Officer Kevin Nigohisian, who

was on patrol in a marked police cruiser, spotted a blue BMW with

license plate 3703ZE. Officer Nigohisian followed the BMW in his

patrol car and called for back-up. Once back-up arrived,

Nigohisian activated his lights and signaled the BMW to pull over.

By that time, several other police cars had arrived at the scene.

Four of the officers exited their cars with guns drawn and ordered

the driver out of the vehicle. Two of the officers patted down the

driver and placed him in handcuffs. Shortly afterwards, Officer

Thomas Caraballo, who had approached the BMW to ascertain whether

there were any other occupants, opened the passenger-side door and

leaned into the car. Caraballo then spotted the handle of a gun

protruding from beneath the passenger seat and called out to alert

the other officers.1

1
At the suppression hearing, Officer Caraballo testified that
before opening the door, he looked through the car window and
discerned the gun in plain view on the floorboard in front of the
passenger seat. The district court did not find this testimony
credible, noting that Detective Burokas testified that Caraballo
was leaning into the car when he announced that he had found a gun
and that the police report indicated that the gun was found under
the passenger seat during a protective sweep of the vehicle.
Officer Nigohisian's and Sergeant Carroll's testimony, however,
buttressed Caraballo's version of events, and the evidence
indicates that Detective Burokas arrived at the scene slightly
later than the first wave of officers and thus may not have been
present when Caraballo initially approached the BMW. We do not
consider this to be a particularly important evidentiary point to
resolve. As discussed below, whether Caraballo espied the gun in
plain view or discovered it in the course of a protective sweep,
Diaz's Fourth Amendment rights were not violated.

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 Almost contemporaneously, Detective Burokas and Sergeant

Carroll arrived at the scene with Edison Gonzalez still in tow.

From the backseat of Carroll’s car, Edison identified the driver of

the BMW as the alleged shooter. Responding to Officer Caraballo's

discovery of a gun, Detective Burokas approached the BMW, donned

latex gloves, and removed a .45 caliber handgun from underneath the

front passenger seat. He unloaded the weapon and found three

rounds of live ammunition in the clip. The driver was then

arrested and taken into custody by the police.

At booking, the driver gave the name "Jose Rivera" along

with a date of birth. He was advised of his Miranda rights in

Spanish, both orally and in written form, and indicated that he

understood his rights. An officer asked "Rivera" in Spanish

whether he had a license to carry the gun, to which he answered

that he had no permit and that he had purchased the gun on the

street for $300. After the officers fingerprinted him, his Social

Security number was run and two names--Jose A. Rivera, Jr., and

Tony Diaz--were returned.

On September 8, 2004, a federal grand jury indicted Diaz

on one count of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) (Count I) and one count of

possession of a firearm and ammunition by an unlawful alien in

violation of 18 U.S.C. § 922(g)(5)(A) (Count II). Diaz moved to

suppress the evidence seized by police during the search of the

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BMW, arguing that the "protective sweep" of the car after he was

handcuffed was a violation of the Fourth Amendment's prohibition on

unreasonable searches and seizures.2 The district court denied

Diaz’s motion to suppress, concluding that the sweep of the

defendant’s vehicle did not violate the Fourth Amendment because it

was not unreasonable for police "to conduct a protective search

after putting a suspect in handcuffs during a Terry stop so that

the suspect may be released from handcuffs as soon as police safety

is assured." United States v. Diaz, No. CRIM.A.04-10274, 2005 WL

1027437, at *3 (D. Mass. Apr. 29, 2005).

A three-day jury trial began on November 7, 2005.3 On

the second day of the trial, Joann Sassone, a Records and

Information Services Officer for the Boston District Office of

Citizenship and Immigration Services, Department of Homeland

Security ("DHS"), testified that the Alien Registration number for

Diaz was A90567004, but that previously he had been associated also

with another Alien Registration number, A29710069. Sassone

2
Diaz conceded that there were sufficient grounds for the
police to conduct a Terry stop of the vehicle. See United States
v. Diaz, No. CRIM.A.04-10274, 2005 WL 1027437, at *2 (D. Mass.
Apr. 29, 2005).
3
At trial, the parties stipulated that (1) a person named Tony
Diaz, also known as Santo Romero, was convicted of a felony for
which the punishment exceeded one year in Middlesex Superior Court
on April 27, 1998; (2) the person convicted of that felony had a
birth date of April 7, 1965; and (3) that the Lawrence police had
sufficient grounds to conduct a Terry stop of the vehicle driven by
Diaz on July 14, 2004.

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explained that the Alien Registration files for the two numbers

were consolidated under file number A90567004 in March of 1992,

when it was determined that both files documented the same

individual. Sassone identified a number of immigration records

contained in the consolidated file that were allowed into evidence,

including fingerprint cards. The evidence indicated that the

alien documented in the file had been deported from the United

States to the Dominican Republic in 1992, re-entered in 1993, and

was deported again in 2001. Sassone testified that the

consolidated alien file had been searched and yielded no evidence

of permission to reenter, adjustment of status, or any other

authorization to be in the United States. Later that same day, FBI

forensics expert Allison Larson testified that the fingerprints on

the cards in the alien file discussed by Sassone matched the prints

taken from Diaz at the Lawrence police station after his arrest on

July 14, 2004.

Defense counsel unsuccessfully objected to the admission

of several of the documents in the alien file. Specifically,

defense counsel objected to Exhibit 6, a Warning to Alien Ordered

Removed or Deported for Santo Rodolfo Romero-Villar, a/k/a Santo R.

Romero, a/k/a Jose Rivera Morales, a/k/a Jose Antonio Morales,

dated April 10, 1997, on hearsay and relevance grounds. The trial

judge allowed the document into evidence on the condition that the

government link the names referenced in the document to Diaz. In

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addition, defense counsel objected to Exhibit 10, a Dominican

Republic passport issued to Santo Rodolfo Romero Villar, date of

birth April 7, 1965, on hearsay and authentication grounds.

Finding that the passport had not been formally authenticated, the

trial judge refused to allow the document in as an authentic

passport, but admitted it as a business record of DHS. Defense

counsel also objected to Exhibit 12, a Dominican Republic travel

authorization granting the United States permission to deport Santo

Romero, date of birth April 7, 1965, to the Dominican Republic, as

unauthenticated and hearsay, but the trial judge allowed the

document into evidence as a business record of DHS.4

4
The following pieces of evidence are also at issue in this
appeal: Warrant of Deportation for Santo Rodolfo Romero-Villar,
a/k/a Santo Romero, dated March 6, 1992 (Exhibit 4); Warrant of
Removal/Deportation for Santo Rodolfo Romero-Villar, a/k/a Santo R.
Romero, a/k/a Jose Rivera Morales, a/k/a Jose Antonio Morales,
dated April 7, 1997 (Exhibit 5); Immigration Detainer Notice for
Santo Romero Villar, dated July 14, 2004 (Exhibit 9); Record of
Deportable Alien for Santo Rodolfo Romero Villar, dated April 22,
1991 (Exhibit 11); and Certificate of Nonexistence of Record for
Santo Rodolfo Romero-Villar, a/k/a Santo Romero, a/k/a Santo R.
Romero, attesting that a search of all computer indices and alien
files in relation to A29710069 showed that there was no record of
that person seeking permission to reenter the United States after
deportation (Exhibit 19).
The government also introduced a Form I-700 Application for
Temporary Worker Status for Santo R. Romero dated November 7, 1988,
which listed Bani, Dominican Republic, as the applicant's
birthplace (Exhibit 20); a fingerprint card under the name Santo
Romero submitted in support of the Form I-700 application (Exhibit
21); a Form I-693 Medical Examination of Aliens Seeking Adjustment
of Status also submitted in support of the Form I-700 application
under the name Santo Romero, with a photo attached and a date of
birth of April 7, 1965 (Exhibit 14); and a temporary residency card
issued to Santo R. Romero, DOB 4/7/65, birthplace listed as
Dominican Republic, with a fingerprint (Exhibit 24).

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 The jury found Diaz not guilty on Count I, possession of

a firearm by a convicted felon, but guilty on Count II, possession

of a firearm and ammunition by an unlawful alien. Based on Diaz's

prior convictions,5 his sentence was enhanced pursuant to ACCA, 18

U.S.C. § 924(e)(1).6 This appeal followed.

II. Discussion

On appeal, Diaz challenges the district court’s denial of

his motion to suppress evidence seized from the BMW, the

sufficiency of evidence to convict him of being an unlawful alien

in possession of a firearm and ammunition, and the enhancement

applied to his sentence as a result of previous convictions.

A. Motion to Suppress

Our review of the district court’s denial of a motion to

suppress is plenary. United States v. Golab, 325 F.3d 63, 66 (1st

All of the above documents were introduced during Sassone's
testimony and were contained in alien file A90567004.
5
The Presentence Report ("PSR") lists at least six separate,
drug-related convictions for a Tony Diaz or other known aliases,
including Santo Romero. At the sentencing hearing, the government
presented evidence, including photographs and fingerprints, linking
the convictions to the Tony Diaz on trial. Diaz objected that the
evidence was insufficient to prove that each of the convictions was
attributable to him.
6
Section 924(e)(1) states, in relevant part:

In the case of a person who violates section 922(g) of
this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both. . .
such person shall be fined under this title and
imprisoned not less than fifteen years . . . .

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Cir. 2003). The district court’s conclusions of law are subject to

de novo review and we examine its factual findings for clear error.

United States v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006).

"[I]t is well-settled that, based merely on reasonable

and articulable suspicion, a police officer may make a brief stop

or 'seizure' of an individual to investigate suspected past or

present criminal activity." United States v. McCarthy, 77 F.3d

522, 529 (1st Cir. 1996); accord Terry v. United States, 392 U.S.

1, 21 (1968). In Terry, the Supreme Court also held that an

officer may pat-down a suspect for weapons when conducting a brief

investigatory stop if "he has reason to believe that he is dealing

with an armed and dangerous individual . . . ." 392 U.S. at 27;

accord United States v. Aitoro, 446 F.3d 246, 252 (1st Cir. 2006).

To determine whether an investigatory stop complies with

Terry, we conduct a two-part inquiry. United States v. Ivery, 427

F.3d 69, 72 (1st Cir. 2005). We first determine whether there was

objectively reasonable suspicion to justify the stop at its

inception. Id.; see also Golab, 325 F.3d at 66. Here, the stop is

not at issue; the parties stipulated that the police had sufficient

reason to initiate the Terry stop of the vehicle Diaz was driving

on the night in question.

Under the second part of the test, "we ask whether the

ensuing search was 'reasonably related in scope to the

circumstances which justified the officers' initial interference.'"

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Ivery, 427 F.3d at 72 (quoting United States v. Nee, 261 F.3d 79,

83 (1st Cir. 2001)). Traditionally, "frisking" an individual who

police have reason to believe is in possession of a weapon is

considered "reasonably related in scope" to stopping an individual

who is suspected of being involved in past or present criminal

activity. See id. However, in recognition of the significant

hazards associated with roadside encounters, the Supreme Court has

held that police may also "frisk" the passenger compartment of a

vehicle for weapons during a roadside Terry stop, if "the police

officer possesses a reasonable belief based on 'specific and

articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant' the officers in

believing that the suspect is dangerous and the suspect may gain

immediate control of weapons." Michigan v. Long, 463 U.S. 1032,

1049 (1983)(quoting Terry, 392 U.S. at 21). The second prong

"imposes a dual requirement for a permissible warrantless search

for weapons: (1) the officers must have actually harbored a

suspicion that the suspect was armed; and (2) that suspicion must

have been reasonable under the circumstances." Ivery, 427 F.3d at

72 (discussing United States v. Lott, 870 F.2d 778, 783-784 (1st

Cir. 1989)).

There was ample evidence in this case that the officers

actually suspected that Diaz was armed and dangerous and that such

suspicion was reasonable in light of the circumstances. Even

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assuming arguendo that the district court was correct not to credit

Officer Caraballo's testimony that he saw a gun in plain view

through the car window before entering the car, the government

presented credible evidence indicating that the blue BMW that Diaz

was driving matched the description of the vehicle, in make and

license plate number, driven by the shooter who fired at the

Gonzalez brothers earlier that night. These 'specific and

articulable' facts created a reasonable suspicion under Terry and

Long that Diaz had access to a weapon and posed an actual danger to

the officers. Conducting a protective sweep of the passenger

compartment for the weapon was therefore permissible, even though

Diaz was outside the vehicle and under police control. See Long,

463 U.S. at 1051-52 (reasoning that a suspect may "break away" from

the police or be permitted to reenter the vehicle and then would

have access to any weapons inside); see also Flowers v. Fiore, 359

F.3d 24, 30-31 (1st Cir. 2004)(finding no constitutional violation

where police handcuffed driver and then performed protective sweep

of his car during Terry stop, because officers had reasonable

suspicion that driver was armed and dangerous); United States v.

Taylor, 162 F.3d 12, 20-21 (1st Cir. 1998)("[T]he officers were

permitted to conduct a search of the passenger compartment of the

automobile for any weapons that might have been accessible to the

occupants. This limited search of the vehicle for weapons was

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permitted even though the occupants had been secured and taken to

the rear of [the car].").

Though Diaz concedes that Long authorizes police officers

to conduct a protective sweep of the passenger compartment of a

vehicle during a roadside Terry stop, he attempts to distinguish

his situation from Long. Diaz argues that he was handcuffed and

thus no longer a danger to police when his car was searched. He

discusses Thornton v. United States, 541 U.S. 615 (2004), in which

the Supreme Court found that a search of a suspect's vehicle after

the suspect was arrested, handcuffed, and placed in the back of a

patrol car was a permissible search incident to arrest. Id. at

622-23. Because Diaz was not formally arrested at the time police

searched his vehicle, he contends that Thornton does not apply and

that the search was therefore impermissible.

We refuse to pursue the red herring of Thornton dangled

by Diaz. The Supreme Court's opinion in Thornton, regarding the

lawfulness of vehicular searches incident to arrest, does nothing

to abrogate the limited vehicular "frisk" permitted during a Terry

stop by Long and its progeny.7 Indeed, the majority's reasoning in

7
Furthermore, the Supreme Court's opinion in Thornton was
carefully limited to the question whether police may search a
suspect's vehicle incident to arrest when an officer's first
contact with the suspect occurs after the suspect has exited the
vehicle. 541 U.S. at 617. The Supreme Court recently granted
certiorari in a case where petitioners seek an answer to the
question more pertinent to the argument Diaz is attempting to make
here--that is, whether a warrantless search incident to arrest is
permissible when there is no demonstrable threat to officer safety

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Thornton only strengthens the rationale for the type of search

conducted in this case. If officer safety concerns justify the

search of a vehicle's passenger compartment where the vehicle's

occupant had exited the vehicle before being confronted by police

and was arrested, handcuffed, and secured in the backseat of a

police car, surely safety concerns justify the same search where

the vehicle's occupant was only temporarily detained under Terry

and may imminently regain control of the vehicle and its contents.

Thus, the district court properly denied Diaz's motion to suppress

the firearm and ammunition found in the vehicle.

B. Sufficiency of the Evidence

Diaz argues on appeal that the government failed to prove

that he was (1) an alien (2) unlawfully present in the United

States and (3) in possession of a firearm. Ordinarily, we would

or need to preserve evidence. Arizona v. Gant, ___ S. Ct. ___,
2008 WL 482034 (Feb. 25, 2008). Neither Thornton nor the Court's
forthcoming opinion in Gant can control in this instance, however,
where the disputed search was conducted incident to a Terry stop by
officers who had reason to believe Diaz was armed and dangerous.
Diaz suggests that the concurring and dissenting opinions in
Thornton call into question the officer safety rationale for
permitting a search of a passenger compartment when police have
secured the occupant in handcuffs outside the vehicle. Even if
this were correct (and we take no position on that point), we
reiterate that Thornton does not control here; Long does. We are
mindful of the Supreme Court's admonition that, "if a precedent of
this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions."
Agostini v. Felton, 521 U.S. 203, 237 (1997)(internal quotations
omitted).

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review this sufficiency of the evidence claim by determining

whether a rational factfinder could have found each of those

elements of the crime proven beyond a reasonable doubt. United

States v. Garcia, 452 F.3d 36, 43 (1st Cir. 2006). But because

Diaz did not ask the district court for a judgment of acquittal on

the count for which he was eventually convicted, we review only for

plain error and "reverse only if the conviction would result in a

'clear and gross injustice.'" United States v. Pratt, 496 F.3d

124, 127 (1st Cir. 2007)(quoting United States v. Bello-Perez, 977

F.2d 664, 668 (1st Cir. 1992)).8

As a preliminary matter, Diaz argues that two documents

offered by the government to prove alienage--the Dominican Republic

passport and travel document--were erroneously admitted into

evidence; he contends that neither was properly authenticated or

8
At the conclusion of the government's case-in-chief, Diaz
moved for judgment of acquittal on Count I of the indictment only.
In fact, as to the first two elements of Count II, the count for
which he was convicted and which he now seeks to overturn on
appeal, Diaz may well have not only failed to preserve a challenge
to the sufficiency of the evidence, but waived it entirely. During
his closing argument, defense counsel proclaimed to the jury, "[i]s
there any question in your mind. . . that this man right here is an
illegal alien? They've proven that beyond a reasonable doubt," and
later reiterated, "[t]hey've proven beyond a reasonable doubt that
[Diaz is] an illegal alien." See United States v. Olano, 507 U.S.
725, 733 (1993) (describing waiver as the "intentional
relinquishment or abandonment of a known right" (internal
quotations omitted)); United States v. Jimenez, 512 F.3d 1, 7 (1st
Cir. 2007)("A waiver is unlike a forfeiture, for the consequence of
a waiver is that the objection in question is unreviewable.").
Nonetheless, we will assume for the sake of argument that all of
Diaz's sufficiency of the evidence claims merit a plain error
review.

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fully translated from Spanish into English.9 Because we believe

that a determination that Diaz is an alien would not be plainly

erroneous even if those two documents were excluded from

consideration, resolving Diaz's objections as to the admissibility

of those documents is not critical to our discussion of Diaz's

sufficiency claims. Nevertheless, we will review the district

court's decision to admit the documents for abuse of discretion.

United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994).

The Federal Rules of Evidence require, "as a condition

precedent to admissibility[,]. . . evidence sufficient to support

a finding that the matter in question is what its proponent

claims." Fed. R. Evid. 901(a). The district court admitted the

documents as business records of DHS, for the very limited purpose

of showing "that [DHS] deported a man to the Dominican Republic

whose name was Santo Romero and had that picture," i.e., to connect

Diaz to his alias and prior removal from the country. See United

States v. Pluta, 176 F.3d 43, 50 (2d Cir. 1999). We see no abuse

of discretion on the part of the court in admitting the documents

for that limited purpose, given that both of the challenged

documents included Diaz's photo, the passport also included his

9
At trial, Diaz also appeared to put forward a hearsay
objection, which is mentioned in his brief on appeal but not
argued. Accordingly, we consider it waived and do not address it.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").

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date of birth, and both were produced by DHS officials and came

from the Alien Registration file associated with Diaz's known

aliases. Under those circumstances, the trial court permissibly

found that there was "sufficient evidence to allow a reasonable

person to believe the evidence is what it purports to be." Garcia,

452 F.3d at 40.

While Diaz objected to the documents at trial on

authenticity grounds, he did not specifically raise an objection to

the lack of an English translation.10 We therefore review the

district court's decision to admit the documents without

translation for plain error only. United States v. Morales-Madera,

352 F.3d 1, 10 (1st Cir. 2003). As we have said before, "[i]t is

clear, to the point of perfect transparency, that federal court

proceedings must be conducted in English . . . . [P]arties are

required to translate all foreign documents into English." United

States v. Rivera-Rosario, 300 F.3d 1, 5, 7 n.4 (1st Cir. 2002).

The submission of foreign language documents unaccompanied by

English translations is error and in ordinary circumstances would

bar those documents from consideration by the court. See United

States v. Contreras Palacios, 492 F.3d 39, 43 n.7 (1st Cir. 2007).

Here, however, the documents were admitted for a limited purpose,

10
Diaz did not request translations of the passport or travel
document at trial, but the district judge noted with concern that
the documents were untranslated, and the government correctly
concedes that it was "remiss" in not providing translations.

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and their evidentiary significance was facially apparent in that it

comprised Diaz's photo (on both documents), the use of his alias

(on both documents) and his signature and birth date (on the

passport). Cf. id. Thus it cannot be said that a "miscarriage of

justice" resulted from the district court's decision to admit the

documents without translation. Morales-Madera, 352 F.3d at 10.

1. Alien

In addition to the admissibility issues discussed above,

Diaz advances several objections to the evidence submitted by the

government to prove his alienage. He takes issue with the

government's reliance on warrants and orders of removal and

deportation, which he argues do not prove alienage beyond a

reasonable doubt because of the different burden of proof

applicable to civil deportation proceedings. Diaz also claims that

the entry into evidence of the purportedly unauthenticated and

untranslated Dominican Republic passport and travel document, and

of the deportation/removal orders without any limiting

instructions, in tandem with the government's heavy emphasis on

those documents in its opening and closing statements, denied him

a fair trial and due process of law in violation of the Fifth and

Sixth Amendments.

We find the totality of the evidence sufficient to permit

a rational jury to find Diaz to be an alien beyond a reasonable

doubt, let alone meet the lower bar posed by plain error review.

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See United States v. Martin, 228 F.3d 1, 10 (1st Cir.

2000)("[J]uries need not evaluate pieces of evidence in isolation,

but may draw conclusions from the sum of an evidentiary

presentation."). The government presented, inter alia, fingerprint

and photographic evidence linking Diaz to his various aliases and

to a DHS Alien Registration file showing that he had been ordered

removed from the country twice before. That the warrants and

orders of deportation/removal stem from civil rather than criminal

proceedings is not fatal to their inclusion into the total calculus

of evidence here, where other evidence strongly supports the

inference of alienage. See, e.g., Contreras Palacios, 492 F.3d at

43-44 (evidence, which included warrant of deportation, sufficient

to prove defendant was an alien).

Because Diaz failed to raise his constitutional arguments

at trial, we review his Fifth and Sixth Amendment claims for plain

error only. United States v. Henderson, 320 F.3d 92, 102 (1st Cir.

2003). As noted above, the Dominican Republic passport and travel

document were admissible for the limited purpose delineated by the

district court. If the government unreasonably harped on these

documents in its opening and closing statements--an objection which

again, Diaz did not raise at trial--doing so nevertheless did not

result in a "clear and gross injustice." See id. at 105 ("Where,

as here, the defendant made no objection to the government's

closing argument at trial, the standard of review is plain error .

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. . . [Defendant] faces a high hurdle because it is established

that plain error review is ordinarily limited to blockbusters . .

. ." (internal quotations omitted)). Diaz cannot clear this

hurdle, especially considering defense counsel's repeated

assertions during his own closing argument that the government had

adduced sufficient evidence to prove beyond a reasonable doubt that

Diaz was an illegal alien. Finally, at trial Diaz never requested

a limiting instruction with regard to the warrants and orders of

deportation/removal, and thus "he is not entitled to argue here

that the district court's failure to provide a limiting instruction

constitutes reversible error." United States v. Walter, 434 F.3d

30, 35 (1st Cir. 2006).

2. Unlawfully present

Diaz asserts that the government did not sufficiently

prove he was unlawfully present in the United States because it did

not check both of the Alien Registration numbers associated with

his aliases and did not produce a Certificate of Nonexistence of

Record for the name "Tony Diaz." However, as discussed above, the

government provided the jury with a veritable cornucopia of

evidence from DHS, on the basis of which it was clearly not plain

error for the jury to conclude that the Tony Diaz on trial and the

Santo Rodolfo Romero-Villar, a/k/a Santo Romero, a/k/a Santo R.

Romero, named on the Certificate of Nonexistence of Record entered

into evidence were the same person. This court has held that such

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a certificate can be used to establish unlawful presence in the

United States. See Scantleberry-Frank, 158 F.3d at 616 n.1.

Furthermore, Sassone adequately explained why only one Alien

Registration number was checked, when she testified that the

government ran one number because as of 1992 the two numbers had

been consolidated into one file.

3. Possession of the firearm and ammunition

To sustain a conviction under 18 U.S.C. § 922(g)(5)(A),

the government must present at trial sufficient evidence to prove

beyond a reasonable doubt that the defendant knowingly possessed a

firearm and ammunition in or affecting interstate commerce. Diaz

does not quibble with the interstate commerce portion of the

charge, but does contend that the government did not sufficiently

prove possession. Knowing possession of a firearm may be "either

actual or constructive." United States v. Wight, 968 F.2d 1393,

1397 (1st Cir. 1992). "In order to show constructive possession,

the government must prove that the defendant 'had dominion and

control over the area where the contraband was found.'" Id.

(quoting United States v. Barnes, 890 F.2d 545, 549 (1st Cir.

1989)).

We find that the government proffered sufficient evidence

to meet its burden. The jury heard evidence that the loaded

firearm was discovered under the passenger seat, within the lunge

area of the driver's seat, in the car Diaz was driving moments

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after police ordered Diaz to exit the vehicle, and that Diaz was

the only occupant of the vehicle. The jury also heard Detective

Burokas and Officer Ayala, the Spanish-speaking police officer who

Mirandized Diaz, testify that during booking Diaz stated he had

bought the gun on the street for $300.

Diaz, on the other hand, argues that there was no

evidence that he owned the car in which the gun was found and that

his fingerprints were not on the gun, ammunition, or clip. In

addition, he attempts to cast aspersions on the testimony of

Detective Burokas and Officer Ayala, merely because they did not

video or audio-tape Diaz's statement regarding his purchase of the

gun. We are mindful, however, that as the reviewing court "we may

neither evaluate the credibility of the witnesses nor weigh the

relative merit of theories of innocence postulated by the

defendant." United States v. Maldonado-Garcia, 446 F.3d 227, 231

(1st Cir. 2006)(citing United States v. Woodward, 149 F.3d 46, 56

(1st Cir. 1998)). Rather, we are tasked with upholding "any

verdict that is supported by a plausible rendition of the record."

United States v. Liranzo, 385 F.3d 66, 69 (1st Cir. 2004)(internal

quotations omitted). Even under the more permissive standard for

a preserved sufficiency challenge, to say nothing of the plain

error standard that applies in this case, there was sufficient

evidence for the jury to find, beyond a reasonable doubt, that Diaz

possessed the firearm and ammunition.

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C. Sentencing Enhancement

Diaz also protests the ACCA sentencing enhancement

applied by the district court, arguing that his Sixth Amendment

rights were violated because the enhancement was based on prior

convictions that were never presented to the jury and proved beyond

a reasonable doubt. Constitutional challenges to ACCA enhancements

are subject to de novo review. See United States v. Duval, 496

F.3d 64, 80 (1st Cir. 2007).

We hold, as we have held before, that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

226-27 (1998)(holding that fact of prior conviction for sentencing

purposes need not be proved to jury beyond reasonable doubt). See

United States v. Earle 488 F.3d 537, 549 (1st Cir. 2007); Ivery,

427 F.3d at 74-75. Diaz notes that Justice Thomas, in a recent

concurrence, cast doubts on the continuing viability of Almendarez-

Torres. See Shepard v. United States, 544 U.S. 13, 27-28

(2005)(Thomas, J., concurring). Diaz relies on a line of Supreme

Court cases from Apprendi v. New Jersey, 530 U.S. 466 (2000), to

Blakely v. Washington, 542 U.S. 296 (2004), through Shepard and

United States v. Booker, 543 U.S. 220 (2005), to buttress his

argument. This court has rejected nearly identical arguments in

the past, however, observing that "[t]he Shepard majority noted the

possibility that Apprendi may eventually be extended to require

proof of prior convictions to a jury, but cautioned that this 'is

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up to the future to show.' . . .[B]oth Blakely and Booker

recognized the continued viability of the Almendarez-Torres

exception." Ivery, 427 F.3d at 75 (quoting Shepard, 544 U.S. at 26

n. 5). Unless and until a majority of the Supreme Court decides

otherwise, Almendarez-Torres continues to be binding precedent upon

this court. See Earle, 488 F.3d at 549 (affirming that we remain

bound by Almendarez-Torres).

Diaz lobs one final argument into the mix, contending

that because he was acquitted of the felon-in-possession charge,

that prior felony conviction cannot be used as the basis for an

upward adjustment of his base offense level, nor for the ACCA

sentencing enhancement.11 We give "due deference" to a district

court's findings of fact at sentencing, and will reverse only for

clear error. United States v. Woodward, 277 F.3d 87, 91 (1st Cir.

2002).

Here, Diaz does what he earlier accused the prosecution

of doing, and confounds different findings arrived at during

different proceedings with different burdens of proof. Diaz argues

that the jury "necessarily found by its verdict that [he] was not

a felon under the conviction presented to them." That is not

correct. The acquittal on the felon-in-possession charge means

11
Diaz describes the conviction in question as "the case listed
on page 9 of the [PSR]." That case is the April 27, 1998,
conviction of one Tony Diaz, also known as Santo Romero, on drug
felony charges in Middlesex Superior Court.

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merely that the jury could not agree that the government had proved

that charge beyond a reasonable doubt. A sentencing judge,

however, need only find prior convictions by a preponderance of the

evidence. See id. ("The government has the burden of proving the

facts central to upward adjustments in offense levels by

preponderance of the evidence, not by proof beyond a reasonable

doubt.")(citing United States v. Aymelek, 926 F.2d 64, 67 (1st Cir.

1991)). On that basis, we see no clear error here: as the judge

below ruled, a preponderance of the evidence adduced at sentencing

supports the conclusion that Diaz and the Tony Diaz/Santo Romero

convicted in April 1998 on drug trafficking charges are the same

person. The conviction thus serves as a proper basis for the

sentencing enhancements, regardless of the jury verdict.12

III. Conclusion

For the reasons stated above, the defendant's conviction

and sentence are AFFIRMED.

12
It should be noted that Diaz would likely qualify for the
ACCA enhancement even if the disputed April 1998 conviction were
not considered. ACCA requires only "three previous convictions
. . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another." 18 U.S.C. §
924(e)(1). At the sentencing hearing, the judge made a finding
attributing only three of the six separate convictions listed in
the PSR to Diaz, saying, "I'm not even making an effort to go
through the other [convictions]." A preponderance of the evidence
in the record as we read it, however, suggests that at least one,
if not all, of the other three convictions, each of which qualifies
as a separate ACCA predicate offense, could also be attributed to
Diaz.

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