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.
-10-
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
-12-
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).
-14-
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
-15-
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.
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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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