U.S. v. Torres-Villalobos, 06-1876.

• Decision Date: 22 February 2007
• Docket Number: No. 06-1876.,06-1876.
• Parties: UNITED STATES of America, Appellee, v. Jesus TORRES-VILLALOBOS, also known as Javier Rios-Hernandez, also known as Jesus Mendez-Rios, also known as Jesus Lopez-Torres, also known as Jesus T. Villalobos, also known as Javier Hernandez-Rios, also known as Jose Torres-Mendez, also known as Javier Perez-Rios, also known as Jesse Torres-Perez, also known as Jesse Torres-Villalobos, also known as Javier Torres-Mendez, also known as Jose Realzola-Perez, also known as Julio Hernandez Royer, also known as Jesus Lopez, also known as Javier Perez, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

477 F.3d 978

UNITED STATES of America, Appellee, v. Jesus TORRES-VILLALOBOS, also known as Javier Rios-Hernandez, also known as Jesus Mendez-Rios, also known as Jesus Lopez-Torres, also known as Jesus T. Villalobos, also known as Javier Hernandez-Rios, also known as Jose Torres-Mendez, also known as Javier Perez-Rios, also known as Jesse Torres-Perez, also known as Jesse Torres-Villalobos, also known as Javier Torres-Mendez, also known as Jose Realzola-Perez, also known as Julio Hernandez Royer, also known as Jesus Lopez, also known as Javier Perez, Appellant.

No. 06-1876.

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2006.

Filed: February 22, 2007.

William H. Koch, U.S. Attorney's Office, Minneapolis, MN, for Appellee.

John Charles Brink, Minneapolis, MN, for Appellant.

Jesus Torres-Villalobos, Faribault, MN, pro se.

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

A jury convicted Jesus Torres-Villalobos of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court concluded that Torres-Villalobos's prior conviction in Minnesota for second-degree manslaughter was an "aggravated felony," so that the statutory maximum term of imprisonment was twenty years rather than two years, see 8 U.S.C. § 1326(b)(2), and then imposed a term of 92 months' imprisonment. Torres-Villalobos challenges his conviction based on the admission of certain disputed evidence, and he argues that his sentence was imposed in violation of law. We affirm the conviction, but vacate the sentence and remand for further proceedings.

I.

According to evidence presented in the district court, Torres-Villalobos is a Mexican national who was found in a jail in St. Cloud, Minnesota, by immigration authorities in 2005. His criminal history includes a 2001 conviction in Minnesota for second-degree manslaughter, which resulted in his deportation to Mexico in April 2001. After he was deported, Torres-Villalobos returned to the United States, and he was arrested and charged in federal court in Texas with illegally reentering the country after having been deported. He pled guilty in October 2001 and was sentenced to 24 months' imprisonment. Upon release from prison in February 2003, Torres-Villalobos was again deported to Mexico. At some point thereafter, Torres-Villalobos returned to the United States, and in July 2005, he was arrested on a drug charge in Minnesota. After he was found during a routine check of jails by immigration authorities, a federal grand jury charged him with illegal reentry after deportation.

The indictment charged that Torres-Villalobos had been twice previously deported to Mexico, on or about April 12, 2001, and February 5, 2003. The grand jury alleged that these deportations followed Torres-Villalobos's conviction in March 1998 for second-degree manslaughter, which the grand jury alleged was an aggravated felony. The indictment charged that Torres-Villalobos knowingly and unlawfully entered and was found in the United States in 2005 after this conviction and these two deportations.

At trial, the government introduced documents concerning the prior deportations. The jury returned a verdict of guilty on the illegal reentry charge. At sentencing, the court concluded that the statutory maximum penalty was twenty years' imprisonment, because Torres-Villalobos' prior conviction for second degree manslaughter qualified as an "aggravated felony" for purposes of 8 U.S.C. § 1326(b)(2). The court then imposed a sentence of 92 months' imprisonment, which was the sentence at the bottom of the advisory guideline range.

II.

A.

In challenging his conviction, Torres-Villalobos disputes several evidentiary rulings of the district court. We review these decisions for abuse of discretion. United States v. Seifert, 445 F.3d 1043, 1045 (8th Cir.2006).

Torres-Villalobos argues that the district court erred by permitting the government to introduce evidence of two prior deportations — one in April 2001 and another in February 2003 — through documents described as "warrants for deportation." The government was required to prove a prior deportation as an element of the charged offense, but early in the trial, Torres-Villalobos argued that the only deportation that was "properly provable as an element of the crime" was the April 2001 removal. (T. Tr. I at 22). He argues on appeal that the district court erred by admitting evidence of the February 2003 deportation, because it was not relevant to the charged offense and not admissible as a prior bad act under Federal Rule of Evidence 404(b).

We conclude that evidence of the February 2003 deportation was properly admitted for two reasons. First, it was relevant to proving an element of the charged offense. The government was required to prove a prior deportation, and it could satisfy that element by proving either the April 2001 deportation or the February 2003 deportation. See United States v. Meza-Villarello, 602 F.2d 209, 210-11 (9th Cir.1979) (per curiam). Second, at the conclusion of the evidence, the parties agreed that the jury instructions would specify that the government must establish the prior deportation element by proving the February 2003 deportation. The April 2001 deportation was stricken from the instructions. (T. Tr. II at 64-68, 74). By agreeing that the case would be submitted to the jury based on the allegation that he was previously deported in February 2003, Torres-Villalobos waived any claim that evidence of February 2003 deportation was irrelevant.

Torres-Villalobos also appears to contend on appeal that the district court erred by admitting evidence of his deportation in April 2001. This evidence was received at a point in the trial when Torres-Villalobos maintained that only the April 2001 deportation could satisfy the prior deportation element of the offense. The government could rely on the April 2001 deportation to prove an element of the charged offense, so the evidence was clearly relevant. Torres-Villalobos also complains that the district court permitted evidence that he was in the United States as far back as June 1991. That evidence, however, was received in connection with testimony from an immigration agent that Torres-Villalobos made admissions concerning his alienage — another element of the offense — when he was interviewed in June 1991. Therefore, the evidence was relevant and properly admitted. Another evidentiary challenge relates to testimony that Torres-Villalobos was found in a correctional facility in 2005, and that investigators learned of his presence "from a routine check of the jails." The district court did not err in allowing this evidence, because the government was required to prove that Torres-Villalobos was "found" in the United States in 2005, (see Jury Instruction No. 11, R. Doc. 17, at 14),¹ and the circumstances of his apprehension were relevant to proving that element of the offense.

Torres-Villalobos further complains that the court erred by admitting evidence of a prior conviction for illegal re-entry in Texas in December 2001. The government sought to introduce evidence relating to this prior conviction to prove the defendant's alienage. There was brief testimony from an immigration agent that Torres-Villalobos had been convicted of a "Title 8, United States Code, Section 1326 offense," but the certified record of the conviction was not received in evidence. (T. Tr. I at 80-81). Later, with the agreement of the parties, the court used the record of conviction to take judicial notice that the defendant admitted his legal status was "alien" on December 19, 2001, and there was no further reference to the fact of conviction. (T. Tr. I at 81-82, 122). We find no abuse of discretion in allowing this limited use of the prior conviction to prove an element of the charged offense.

B.

Torres-Villalobos also challenges the admission of warrants of deportation on the ground that they deprived him of the right to "be confronted with the witnesses against him" under the Sixth Amendment. A warrant of deportation is a document that commands an immigration official to take custody of the deportee and to remove him from the United States. United States v. Garcia, 452 F.3d 36, 41 (1st Cir.2006). A signed warrant indicates that the attesting witness observed the deportee leaving the country. As noted, the government introduced the warrants of deportation to prove the element of the charged offense that Torres-Villalobos had been deported in the past. The witness who testified concerning the February 2003 warrant explained that he could not specifically recall seeing Torres-Villalobos cross the border, but that his regular practice was to sign the warrant upon seeing the alien depart the country, and that the records therefore accurately reflected the fact of his observations at the time. (T. Tr. I at 126-31). Because the government could not produce testimony from someone who actually recalled seeing Torres-Villalobos leave the country, Torres-Villalobos argues that admission of the warrant of deportation denied him the right to confront his accuser.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. 1354. Only testimonial statements "cause the declarant to be a `witness' within the meaning of the Confrontation Clause." Davis v. Washington, ___ U.S. ___, ___, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). Crawford declined "to spell out a comprehensive definition of `testimonial,'" 541 U.S. at 68, 124 S.Ct. 1354, but gave examples of testimonial statements and historical exceptions to the hearsay rule that permitted receipt of non-testimonial evidence. I...