U.S. v. Calderon-Segura

Decision Date09 January 2008
Docket NumberNo. 05-50820.,05-50820.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Abraham CALDERON-SEGURA, a.k.a. Abraham Calderon, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

James Fife and Zaki Zehawi, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.

Hamilton E. Arendsen, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States. District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-05-00381-TJW.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and MELVIN BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Abraham Calderon-Segura, a native and citizen of Mexico, was arrested in 2005 by United States Border Patrol agents after they found him hiding in the brush about one mile north of the U.S.-Mexico border. He was indicted by a grand jury and convicted after a jury trial as an alien who had, been excluded, deported, or removed and thereafter found in the United States, in violation of 8 U.S.C. § 1326. The evidence admitted at his trial included, among other things, documents showing that in 1999 he was ordered deported and was removed from the United States, and the testimony of a fingerprint expert that a fingerprint exemplar taken from Calderon-Segura matched the exemplar on his 1999 warrant of removal, which positively identified him as the same person who was previously deported.

For purposes of sentencing, the government submitted evidence of multiple prior convictions, including a 1997 conviction in California for forcible rape. Over Calderon-Segura's objections, the district court relied on that aggravated felony conviction to increase the applicable statutory maximum from two years under 8 U.S.C. § 1326(a) to twenty years under § 1326(b)(2) (applying to defendants "whose removal was subsequent to a conviction for commission of an aggravated felony"). Applying the Sentencing Guidelines as advisory, the court ultimately sentenced Calderon-Segura to 94 months imprisonment.

Calderon-Segura raises three issues on appeal. He collaterally attacks the validity of his prior deportation on due process grounds; contends that the expert testimony on exemplar fingerprint examination should have been excluded as unreliable; and contends that the application of an enhanced statutory maximum under 8 U.S.C. § 1326(b) violated the Fifth and Sixth Amendments because the facts necessary to sustain the enhancement were neither pleaded in the indictment nor proved to the jury. We find no merit in these claims, except the claim of indictment error relating to the sentence, which has some merit but is nonetheless harmless beyond a reasonable doubt. Accordingly, we affirm the conviction and sentence.

I Collateral Attack

Before trial, Calderon-Segura moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) on the ground that his 1999 removal, which was the product of expedited proceedings conducted pursuant to 8 U.S.C. § 1228(b), violated due process. We review the denial of such a motion to dismiss de novo. United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006).

Although there are three requirements for a collateral attack on an underlying deportation order, in this case the parties dispute only whether "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d)(3). "An underlying removal order is `fundamentally unfair' if: `(1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.'" United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (brackets and citation omitted).

Calderon-Segura first contends that 8 U.S.C. § 1228(b)(1) violates equal protection by granting the Attorney General seemingly unfettered discretion to choose between expedited removal proceedings under § 1228(b) or general removal proceedings under 8 U.S.C. 1229a in cases involving similarly-situated non-lawful permanent resident aliens (non-LPRs) with aggravated felony convictions.1 He argues that the Attorney General's decision to place him in expedited proceedings deprived him of review by an immigration judge and eligibility for discretionary relief from removal, both of which would have been afforded in general removal proceedings. See id. §§ 1182(a), 1229a(a)(1). Expedited proceedings are conducted by a Service officer, not an immigration judge, and the alien is statutorily deemed ineligible for any discretionary relief from removal. 8 U.S.C. § 1228(b)(5); United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.2000); 8 C.F.R. § 1238.1.

"It is well established that all individuals in the United States—citizens and aliens alike—are protected by the Due Process Clause of the Constitution. It is equally well established that the Due Process Clause incorporates the, guarantees of equal protection." Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.1994). Nonetheless, as there is no assertion here that the Attorney General's discretion implicates fundamental rights or involves a classification along suspect lines, only rational basis scrutiny applies. See Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.2002); Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981).

We agree with the Fifth and Eighth Circuits that a rational basis exists for granting the Attorney General discretion to place some non-LPR aggravated felons into expedited removal proceedings and others into potentially more lenient general removal proceedings. Gonzalez v. Chertoff, 454 F.3d 813, 818 (8th Cir.2006); Flores-Ledezma v. Gonzales, 415 F.3d 375, 381-82 (5th Cir.2005). As those courts have recognized, the aliens described in § 1228(b) "include" many persons who could rationally be granted special deference and courtesy under the immigration laws: ambassadors, diplomats, employees of foreign governments, journalists, scholars, teachers, and professors, among others." Flores-Ledezma, 415 F.3d at 381, quoted in Gonzalez, 454 F.3d at 818. To paraphrase our decision in Taniguchi, 303 F.3d at 958, although it might have been wiser, fairer, and more efficacious for Congress to have deemed all non-LPR aggravated felons ineligible for the benefits available in general removal proceedings, the decision of Congress was nonetheless a rational first step towards the legitimate goal of rapidly removing criminal aliens. We therefore conclude that 8 U.S.C. § 1228(b)(1) does not violate equal protection.

As a "second, independent" basis for invalidating his prior removal, Calderon-Segura contends that his due process rights were violated because he was not advised of his eligibility for two forms of discretionary relief. Specifically, he claims he should have been advised that he could voluntarily withdraw his application for admission and freely depart the country pursuant to 8 U.S.C. § 1225(a)(4), or that he could apply for a waiver under 8 U.S.C. § 1182(h) as the father of four children who are. United States citizens.

But even if Calderon-Segura might have otherwise qualified for such relief, neither was "a `plausible' ground for relief from deportation"' once he was placed in expedited removal proceedings. Ubaldo-Figueroa, 364 F.3d at 1050. Both forms of relief are expressly conditioned on the Attorney General's exercise of "discretion." 8 U.S.C. §§ 1182(h), 1225(a)(4). Yet, as a non-LPR aggravated felon subject to expedited removal, Calderon-Segura was statutorily ineligible for any discretionary relief. Id. § 1228(b)(5). We therefore conclude that the agency's failure to advise him of discretionary relief that he was statutorily barred from obtaining neither violated his due process rights, nor was it prejudicial. Cf. United States v. Garcia-Martinez, 228 F.3d 956, 963-64 (9th Cir.2000) (holding that the defendant's prior expedited removal did not violate due process by virtue of the presiding officer's institutional bias, but even if it did the statutory bar of § 1228(b)(5) precluded a showing of actual prejudice).

Because Calderon-Segura has failed to show the requisite due process violation and prejudice to establish that his prior removal was "fundamentally unfair" under 8 U.S.C. § 1326(d)(3), the district court properly denied the motion to dismiss the indictment.

II Expert Testimony on Fingerprint Identification

Calderon-Segura contends that the district court erred in admitting at trial expert testimony on fingerprint identification, which the government presented to prove the fact of his 1999 removal. The government's expert was an instructor in fingerprint identification and testified that an inked thumb-print exemplar he took from Calderon-Segura matches the inked thumb-print appearing on his 1999 warrant of removal.

Calderon-Segura originally raised his objection in a motion in limine, contending that fingerprint identification testimony does not satisfy the test of evidentiary reliability or scientific validity required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 n. 9, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and is unduly prejudicial under Federal Rule of Evidence 403. The district court reviewed Calderon-Segura's documentary evidence and heard oral argument on the motion, but it denied both his request for a full "Daubert hearing" and the motion itself. The court explained that the motion in limine was based almost exclusively on evidence demonstrating the unreliability of latent fingerprint identification, whereas this case involved only the examination of two inked fingerprints, the reliability and admissibility of which is long-established. As the expert testified, a latent print must be developed or "dusted" using chemicals and then lifted from whatever surface it happens to be on to enable examination, whereas an inked fingerprint is...

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