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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10706
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00129-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM CARDONA-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 15, 2016)
Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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William Cardona-Castillo appeals his conviction and 71-month prison
sentence for one count of illegal reentry after being convicted of an aggravated
felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Cardona-Castillo advances
four arguments on appeal. First, he argues that the district court erred by denying
his motion to suppress all evidence obtained as a result of an illegal stop and show-
up. Second, he argues that the district court abused its discretion by overruling
five of his evidentiary objections at trial. Third, he argues that the district court
erred by denying his motion for judgment of acquittal. Finally, he argues that the
district court erred by applying two additional points to his criminal history based
on its finding that he was on probation at the time of the offense. For the reasons
that follow, we affirm.
I.
Cardona-Castillo first argues that the district court erred by denying his
motion to suppress all evidence from a stop and show-up. He alleges that the
officers lacked reasonable suspicion to detain him because his detention was based
on an overly broad and vague description of a suspect and that the show-up was
unduly suggestive and prejudicial. A motion to suppress evidence presents a
mixed question of law and fact. United States v. Lewis, 674 F.3d 1298, 1302 (11th
Cir. 2012). We review the district court’s rulings of law de novo and its findings
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of fact for clear error. Id. at 1302–03. We construe all facts in the light most
favorable to the party that prevailed below. Id. at 1303.
The Supreme Court has held that the exclusionary rule does not apply in
civil deportation proceedings where the evidence of an individual’s unlawful
presence in the United States was derived from an unlawful arrest. INS v. Lopez-
Mendoza, 468 U.S. 1032, 1034, 104 S. Ct. 3479, 3481 (1984). The Court found
that “application of the exclusionary rule in [these] cases . . . would compel the
courts to release from custody persons who would then immediately resume their
commission of a crime through their continuing, unlawful presence in this
country.” Id. at 1050, 104 S. Ct. at 3489. Our Court has expanded this holding to
criminal proceedings when the evidence sought to be suppressed is “offered in a
criminal prosecution only to prove who the defendant is.” United States v. Farias-
Gonzalez, 556 F.3d 1181, 1182 (11th Cir. 2009). This evidence of identity
includes a defendant’s fingerprints and alien file. Id. at 1189.
The district court did not err by denying Cardona-Castillo’s motion to
suppress his fingerprints and alien file. The government used Cardona-Castillo’s
fingerprints and alien file for the sole purpose of establishing his identity. Even if
they were obtained as the result of an unlawful search or seizure, the fingerprints
and alien file were not due to be suppressed when used only to prove Cardona-
Castillo’s identity. See id.
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II.
Cardona-Castillo also argues that the district court abused its discretion by
overruling five of his evidentiary objections at trial. He claims that the district
court should not have allowed the admission of: (1) a sworn statement made by
Cardona-Castillo in January 2011 regarding his original means of entry into the
United States, (2) his alien file, (3) a warrant of deportation, (4) a “warning to alien
removed or deported” notice, and (5) a flight manifest to Cardona-Castillo’s home
country showing his name on the passenger list. Cardona-Castillo alleges that the
sworn statement was made in violation of his Miranda1 rights, and that the various
pieces of evidence were unfairly prejudicial or improperly authenticated under
Federal Rules of Evidence 403 and 901.
A.
We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). “We will
reverse a district court’s evidentiary rulings only if the resulting error affected the
defendant’s substantial rights.” United States v. Dodds, 347 F.3d 893, 897 (11th
Cir. 2003).
The government cannot introduce statements stemming from a custodial
interrogation unless certain procedural protections were provided. Miranda v.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). Custodial interrogation
“mean[s] questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant
way.” Id. “[A] term of imprisonment, without more, is not enough to constitute
Miranda custody.” Howes v. Fields, 565 U.S. ___, ___, 132 S. Ct. 1181, 1191
(2012). In deciding whether a prisoner is in custody for Miranda purposes, we
“focus on all of the features of the interrogation,” which “include the language that
is used in summoning the prisoner to the interview and the manner in which the
interrogation is conducted.” Id. at 1192.
Under Federal Rule of Evidence 901, in order to “authenticat[e] or identify[]
an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).
Public records may be authenticated by showing that the document “was recorded
or filed in a public office as authorized by law” or was “from the office where
items of this kind are kept.” Id. 901(b)(7).
Under Federal Rule of Evidence 403, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “The district court
possesses broad discretion to admit evidence if it has any tendency to prove or
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disprove a fact in issue,” but “the court’s discretion to exclude evidence under Rule
403 is limited.” United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th
Cir. 1990). “[T]he application of Rule 403 must be cautious and sparing.” United
States v. Mills, 704 F.2d 1553, 1560 (11th Cir. 1983) (quotation omitted).
B.
The district court did not abuse its discretion in any of the five evidentiary
rulings Cardona-Castillo appeals. First, Cardona-Castillo’s sworn statement was
not made in violation of his Miranda rights. Though he was in prison when he
made the statement, Cardona-Castillo did not assert that he was in custody for the
purposes of Miranda and the fact of his imprisonment does not establish custody
on its own, without evidence that other features of the interrogation demonstrated
custody. See Howes, 565 U.S. at ___, 132 S. Ct. at 1191–92. Further, the
statement was not needlessly cumulative under Rule 403 simply because another
individual’s testimony could have proved the same fact. The “warning to alien
removed or deported” document was also not unfairly prejudicial under Rule 403
because the document had probative value in establishing the fact of Cardona-
Castillo’s deportation.
Neither did the district court err in admitting Cardona-Castillo’s alien file,
warrant of deportation, and flight manifest. These documents were properly
authenticated under Rule 901 because they were “from the office where items of
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[these] kind[s] are kept,” with the U.S. Immigration and Customs Enforcement
office. Fed. R. Evid. 901(b)(7). The documents were not unfairly prejudicial
under Rule 403 because they had probative value in establishing the fact of
Cardona-Castillo’s deportation. The district court did not abuse its discretion in
admitting the evidence.
III.
Cardona-Castillo next argues that the district court erred by denying his
motion for judgment of acquittal because the government did not present sufficient
evidence of his prior deportation. To prove the offense of unlawful entry after
deportation, the government must show that (1) the alien had been deported, (2) he
entered, attempted to enter, or was found in the United States after deportation, and
(3) he had not obtained permission to reenter. 8 U.S.C. § 1326(a).
We review both the denial of a motion for acquittal and the sufficiency of
the evidence supporting a conviction de novo. United States v. Hernandez, 433
F.3d 1328, 1332 (11th Cir. 2005). We draw all factual and credibility inferences in
favor of the government. Id. A defendant may move the court to enter a judgment
of acquittal after the government closes its evidence, and the court must acquit if
“the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
Evidence is sufficient to support a conviction if “a reasonable trier of fact,
choosing among reasonable interpretations of the evidence, could find guilt beyond
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a reasonable doubt.” United States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir.
2005) (per curiam) (quotation omitted). The evidence need not exclude every
reasonable hypothesis of innocence, because the jury may choose between
reasonable constructions of the evidence and is free to disbelieve the testimony of
witnesses. See Hernandez, 433 F.3d at 1334–35.
The district court did not err in denying the motion for judgment of acquittal.
The alien file, warrant of deportation, “warning to alien removed or deported,” and
flight manifest all support the finding that Cardona-Castillo had been on a
repatriation flight to Honduras in 2011. This was sufficient evidence that Cardona-
Castillo had been deported.
IV.
Cardona-Castillo finally argues that the district court erred by adding two
points to his criminal history based on a finding that he was on probation at the
time of the offense. He specifically alleges that he lacked knowledge that he was
ordered to serve two years of probation after his term of imprisonment and that the
two-point increase was improper because a separate case charging him with
violation of probation had been dismissed by the state court and no decision was
made about whether that dismissal was nunc pro tunc.
“We review findings of fact for clear error and application of the sentencing
guidelines de novo.” United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009).
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A factual finding is clearly erroneous only if we are “left with the definite and firm
conviction that a mistake has been committed.” Id. (quotation omitted).
Under the Sentencing Guidelines, two points are added to the defendant’s
criminal history “if the defendant committed the instant offense while under any
criminal justice sentence, including probation.” USSG § 4A1.1(d). Active
supervision is not required for a sentence to be considered a criminal justice
sentence under § 4A1.1(d), and a defendant’s subjective understanding that his
probation had terminated upon deportation is not relevant to this two-point
enhancement. United States v. Phillips, 413 F.3d 1288, 1292 (11th Cir. 2005) (per
curiam).
The district court correctly added two points to Cardona-Castillo’s criminal
history score. Cardona-Castillo’s Order of Probation indicates that his sentence
included a two-year term of probation after he completed his initial term of
incarceration. He was still serving that probation term at the time of this offense.
Further, when the state court terminated Cardona-Castillo’s warrant for a violation
of his probation in a separate suit, there is no indication that the court made this
dismissal nunc pro tunc such that it would impact the established duration of
Cardona-Castillo’s term of probation.
AFFIRMED.
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