U.S. v. Contreras Palacios, 05-2848.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Lipez
• Citation: 492 F.3d 39
• Parties: UNITED STATES of America, Appellee, v. Mario CONTRERAS PALACIOS, Defendant, Appellant.
• Docket Number: No. 05-2848.,05-2848.
• Decision Date: 28 June 2007

492 F.3d 39 UNITED STATES of America, Appellee,
v.
Mario CONTRERAS PALACIOS, Defendant, Appellant. No. 05-2848. United States Court of Appeals, First Circuit. Heard December 7, 2006. Decided June 28, 2007.

[492 F.3d 40]

Page Kelley for appellant.

Paul R. Moore, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Mario Rudolfo Contreras Palacios, convicted of illegal reentry into the United States, claims that the testimony and documentary evidence offered by the government were insufficient to support his conviction on the alienage element of that offense. He also argues that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that prior convictions need not be found by a jury beyond a reasonable doubt for the purpose of imposing sentencing enhancements, is no longer good law because of subsequent Supreme Court precedents. We reject both arguments and affirm the conviction and sentence.

I.

Identified as an alien¹ by the Department of Homeland Security ("DHS") while in custody of the Middlesex County, Massachusetts Sheriff's Office in December 2003, Contreras was indicted for illegally reentering the United States after a prior deportation, under 8 U.S.C. § 1326(a), (b). Contreras stipulated that he had previously been deported and that he had not received permission to reenter the country. He waived his right to a jury, proceeded to a bench trial, and argued that he was not an alien.

At trial, the government presented a single witness: Joann Sassone, the records custodian for the Massachusetts branch of the Citizenship and Immigration Service ("CIS") of the DHS. Lacking any independent knowledge about the defendant and his history, Sassone testified solely on the

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basis of the "Alien File" ("A-file")² for Mario Rudolfo Contreras Palacios, which the defendant stipulated was "associated" with him. Sassone testified that the CIS assigns a unique registration number to each alien it encounters, and that all communication with or regarding an alien is preserved in that individual's A-file. She identified the most significant documents found in the A-file for Contreras Palacios, which included: a Guatemalan birth certificate; a Guatemalan identity document, known as a "cedula"³; a Record of Deportable Alien, dated September 7, 1984; a letter from the U.S. consulate in Guatemala; an envelope mailed from El Paso, Texas to the defendant; and a Warrant of Deportation dated August 22, 2000.⁴ The cedula and the Warrant of Deportation contained photographs of and signatures by the named individual.

The file contained a written request from the U.S. consulate in Guatemala City, to a Guatemalan official, asking for a birth record for a Mario Rudolfo Contreras Palacios. The request also included his birth date, place of birth, and parents' names. Sassone opined that the birth certificate was obtained as a result of this request, which she said was prompted by a request from a Border Patrol Agent, although she had no direct knowledge of how the Border Patrol obtained the identifying information set forth in the letter requesting the birth certificate. She testified that the birth certificate was likely requested as a routine component of deportation proceedings, while Contreras was held in custody. She also theorized, based on the materials in the file, that the cedula was mailed to appellant, at his request, while he was in custody. Sassone testified that nothing in the A-file was inconsistent with the identifying information contained in the birth certificate and cedula.

The government called no other witnesses. Instead, it relied heavily upon the defendant-appellant's factual stipulations. In addition to agreeing that the A-file was associated with him, the defendant agreed that he was deported in August 2000, that he was found in the U.S. in 2003, that he had not received permission to enter the U.S. prior to his 2003 detention, and that the Guatemalan birth certificate was authentic. The government argued that these stipulations, along with the A-file, as explained by Sassone, proved beyond a reasonable doubt that the defendant was the individual named Contreras identified in the file, and that he was an alien.

Contreras neither testified nor presented any witnesses on his behalf. Instead, he argued that the government had not carried its burden of proof because there was insufficient evidence that he was the person described in the documents (particularly the birth certificate and cedula) admitted at trial. Specifically, he claimed that the government lacked direct evidence of his alien status, such as fingerprint evidence tying him to the cedula or an admission

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or statement by him that his birth date was that listed on the birth certificate. Indeed, upon cross-examination, Sassone agreed that there were multiple records in the file reflecting Contreras' statement that he believed he had been born in America and was, therefore, a U.S. citizen. Contreras also pointed out, through counsel's closing argument, that the A-file contained multiple documents in which he claimed that his name was Oscar Raway and that he was an American citizen.

After Contreras filed a Rule 29 motion, the district court found summarily that there was sufficient evidence to show, beyond a reasonable doubt, that he was an alien. Contreras was convicted of illegal reentry and sentenced to seventy-seven months of incarceration. He then filed this appeal.

II.

Contreras raises two issues on appeal. First, he argues that there was insufficient evidence on the alienage element of the offense to support his conviction. Second, he argues that the sentence, although consistent with Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was improper. He claims that Almendarez-Torres is no longer valid law because of the subsequent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We address these arguments in turn.

A. Sufficiency of the Evidence

To secure a conviction under 8 U.S.C. § 1326, the government must prove that the defendant: (1) is an alien, (2) was previously deported, and (3) thereafter entered, or attempted to enter, the United States without...