United States v. Samuel Orozco-Acosta , 607 F.3d 1156 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50192
Plaintiff-Appellee,
D.C. No.
v.
 3:08-cr-02412-
SAMUEL OROZCO-ACOSTA, aka LAB-1
Benito Contreras-Mesa,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
March 2, 2010—Pasadena, California
Filed May 26, 2010
Before: William C. Canby, Jr., Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Canby
7531
7534 UNITED STATES v. OROZCO-ACOSTA
COUNSEL
Matthew J. Gardner, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
James Fife, Assistant Federal Public Defender, San Diego,
California, for the defendant-appellant.
OPINION
CANBY, Circuit Judge:
Samuel Orozco-Acosta was convicted by a jury of illegally
re-entering the United States following removal, in violation
of 8 U.S.C. § 1326. On appeal, Orozco-Acosta contends that
the admission into evidence of a certificate of non-existence
of record and of a warrant of removal violated his rights under
the Sixth Amendment’s Confrontation Clause. He also chal-
lenges the district court’s refusal to give a requested jury
instruction and argues that his sentence was procedurally and
substantively unreasonable. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm Orozco-
Acosta’s conviction and sentence.
UNITED STATES v. OROZCO-ACOSTA 7535
FACTUAL AND PROCEDURAL BACKGROUND
On June 25, 2008, a border patrol agent discovered Orozco-
Acosta, a Mexican national, just north of the United States-
Mexico border in a desolate area frequented by aliens illegally
crossing into the United States. Orozco-Acosta admitted to
the agent that he was a Mexican citizen and had no documents
allowing him to be in the United States legally. He also later
gave a sworn statement indicating that he had been deported
earlier that year and had not sought permission to re-enter.
A federal grand jury indicted Orozco-Acosta for being
found in the United States following removal, in violation of
8 U.S.C. § 1326.1 Prior to trial, the government moved in
limine to introduce a warrant of removal to establish that
Orozco-Acosta had been deported from the United States on
January 26, 2008. The government also sought to introduce a
certificate of non-existence of record (“CNR”) to show that
there was no record that Orozco-Acosta had ever applied for,
or been granted, permission to re-enter the United States fol-
1
8 U.S.C. § 1326 provides, in pertinent part:
(a) . . . [A]ny alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an
order of exclusion, deportation, or removal is outstand-
ing, and thereafter
(2) enters, attempts to enter, or is at any time found in, the
United States, unless (A) prior to his reembarkation at
a place outside the United States or his application for
admission from foreign contiguous territory, the Attor-
ney General has expressly consented to such alien’s
reapplying for admission; or (B) with respect to an
alien previously denied admission and removed, unless
such alien shall establish that he was not required to
obtain such advance consent under this chapter or any
prior Act,
shall be fined under Title 18, or imprisoned not more than 2
years, or both. 18 U.S.C. § 1326(a).
7536 UNITED STATES v. OROZCO-ACOSTA
lowing his removal.2 The district court overruled Orozco-
Acosta’s objections that admission of these documents would
violate his rights under the Sixth Amendment’s Confrontation
Clause, and both documents were admitted into evidence at
Orozco-Acosta’s trial.
The jury also heard the testimony of Agent Dwain Holmes,
the custodian of Orozco-Acosta’s Alien Registration File (“A-
File”). An A-File contains paper records concerning an alien’s
immigration status, including records of removal and applica-
tions for re-entry. Agent Holmes testified that his review of
Orozco-Acosta’s A-File, as well as an agency computer data-
base, C.L.A.I.M.S., disclosed no documentation that Orozco-
Acosta had applied for permission to re-enter the United
States.
The jury found Orozco-Acosta guilty of violating 8 U.S.C.
§ 1326. The district court sentenced Orozco-Acosta to
seventy-one months in prison, followed by three years of
supervised release, and ordered a $100 assessment.
DISCUSSION
I. Confrontation Clause
[1] The Confrontation Clause of the Sixth Amendment
guarantees 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 v. Wash-
ington, 541 U.S. 36 (2004), the Supreme Court held that the
Confrontation Clause guarantees a defendant’s right to con-
2
The permission required by § 1326(a)(2)(A) is the consent of the Attor-
ney General to the alien’s reapplying for admission. See note 1, supra.
Because admission is ordinarily a routine procedure once the Attorney
General consents to reapplication, we and the parties frequently use the
common shorthand of referring to the Attorney General’s consent as “con-
sent to re-admission or re-entry.”
UNITED STATES v. OROZCO-ACOSTA 7537
front those “who ‘bear testimony’ ” against him. Id. at 51
(citation omitted). The Court ruled that “[t]estimonial state-
ments of witnesses absent from trial [are admissible] only
where the declarant is unavailable, and only where the defen-
dant has had a prior opportunity to cross-examine.” Id. at 59.
The Court described various formulations of the “core class”
of testimonial statements without expressly endorsing any for-
mulation. Id. at 51-52. Among the examples so discussed
were “statements contained in formalized testimonial materi-
als, such as affidavits, depositions, prior testimony, or confes-
sions” as well as “statements that were made under
circumstances which would lead an objective witness reason-
ably to believe that the statement would be available for use
at a later trial.” Id. at 51-52 (ellipsis, internal quotations and
citations omitted). On the issue before it, the Court held that
statements taken by investigating police officers during inter-
rogations were testimonial “under even a narrow standard.”
Id. at 52.
Recently, in Melendez-Diaz v. Massachusetts, 129 S. Ct.
2527 (2009), the Supreme Court shed additional light on the
contours of the term “testimonial.” The Court held that “cer-
tificates of analysis” by laboratory technicians confirming that
substances possessed by the defendant were cocaine were tes-
timonial statements under Crawford. Id. at 2532. The Court
emphasized that the certificates were “quite plainly affidavits”
and were “functionally identical to live, in-court testimony.”
Id. at 2532. Moreover, not only were the certificates “ ‘made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial,’ ” id. (quoting Crawford, 541 U.S. at
52), but under state law the “sole purpose of the affidavits”
was to provide evidence at trial. Id.Relying upon Melendez-Diaz, Orozco-Acosta challenges
the district court’s introduction into evidence of the CNR and
the warrant of removal. He argues that both the CNR and the
warrant of removal are testimonial and that, because he never
7538 UNITED STATES v. OROZCO-ACOSTA
had the opportunity to cross-examine their declarants, the
introduction of these documents violated his right to confront
witnesses against him. The government concedes that intro-
duction of the CNR was error under Melendez-Diaz, but
argues that the error was harmless beyond a reasonable doubt.
The government also maintains that introduction of the war-
rant of removal into evidence did not violate the Confronta-
tion Clause post-Melendez-Diaz.
Certificate of Non-Existence of Record (CNR)
To convict Orozco-Acosta of violating § 1326, the govern-
ment was required to prove that Orozco-Acosta, after being
removed, re-entered the United States without permission to
reapply for admission. See 8 U.S.C. § 1326(a)(2)(A); United
States v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir.
1994). As part of its proof on this element, the government
introduced the CNR, in which a District Director of the Citi-
zenship and Immigration Services of the Department of
Homeland Security certified that “after a diligent search [of
two agency databases,] no record was found to exist indicat-
ing that [Orozco-Acosta] obtained consent . . . for re-
admission in the United States.”
[2] Because the government concedes that the introduction
of the CNR violated Orozco-Acosta’s confrontation right, “we
must remand for a new trial unless the government demon-
strates beyond a reasonable doubt that admission of the evi-
dence was harmless.” United States v. Norwood, ___ F.3d
___, 2010 WL 1236319, at *3 (9th Cir. Apr. 1, 2010). In eval-
uating whether a Confrontation Clause violation is harmless,
we consider a variety of factors, including:
the importance of the witness’ testimony in the pros-
ecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
UNITED STATES v. OROZCO-ACOSTA 7539
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). We con-
clude that the government has met its burden of proving
harmlessness in this case.
[3] First, the CNR was cumulative of other evidence.
Agent Holmes testified that if Orozco-Acosta had filed the
form required to reapply for admission, this fact would have
been documented both in Orozco-Acosta’s A-File and in the
agency’s C.L.A.I.M.S. database, but no such documentation
appeared in either place. Any doubt arising from the possibil-
ity that Agent Holmes’s record search was less comprehen-
sive than the search conducted for the CNR was allayed by
the introduction of Orozco-Acosta’s own sworn statement that
he had not applied for permission to re-enter, as well as the
arresting agent’s testimony that Orozco-Acosta admitted that
he lacked documents allowing him to be in the United States
legally. The jury also could infer that Orozco-Acosta lacked
permission to re-enter the United States from the circum-
stances of his apprehension: rather than entering through a
designated Port of Entry, as would be expected if Orozco-
Acosta had received permission to re-enter the United States,
Orozco-Acosta was apprehended in a desolate, inhospitable,
and uninhabited border area. Thus, the government’s case on
the lack-of-permission element was overwhelming, even
without the CNR.
[4] Orozco-Acosta had an adequate opportunity to cross-
examine the witnesses who testified against him. These wit-
nesses included Agent Holmes, who reviewed Orozco-
Acosta’s A-File, Agent Bourne, who prepared Orozco-
Acosta’s sworn statement, and Agent Thompson, who appre-
hended Orozco-Acosta near the border. We reject Orozco-
Acosta’s contention that his ability to cross-examine Agent
Holmes was unduly limited by the district court’s refusal to
order the production of notes Agent Holmes made while
7540 UNITED STATES v. OROZCO-ACOSTA
reviewing Orozco-Acosta’s A-file.3 Nothing prevented coun-
sel for Orozco-Acosta from pressing Agent Holmes on the
manner in which he conducted the A-File search, but counsel
did not do so. In fact, the question of whether Orozco-Acosta
had applied for permission to re-enter the United States was
never seriously challenged at trial. Thus, “we are convinced
beyond any reasonable doubt . . . that the jury would have
convicted [Orozco-Acosta] on the elements of [§ 1326]
regardless of the [introduction of the CNR].” Norwood, 2010
WL 1236319, at *4.
Warrant of Removal
To convict Orozco-Acosta, the government also was
required to prove beyond a reasonable doubt that Orozco-
Acosta, prior to being apprehended, had in fact been physi-
cally removed from the United States. See, e.g., United States
v. Estrada-Eliverio, 583 F.3d 669, 671 (9th Cir. 2009). As
part of its proof, the government introduced the warrant of
removal, which both ordered that Orozco-Acosta be removed
from the United States and also documented Orozco-Acosta’s
physical removal to Mexico. We review de novo whether the
admission of this warrant violated Orozco-Acosta’s confron-
tation right. See, e.g., United States v. Orellana-Blanco, 294
F.3d 1143, 1148 (9th Cir. 2002).
[5] Resolution of this issue is controlled by our previous
decision in United States v. Bahena-Cardenas, 411 F.3d 1067(9th Cir. 2005). In Bahena-Cardenas, we held, post-
Crawford, that a warrant of removal is “nontestimonial
because it [is] not made in anticipation of litigation, and
3
To the extent that Orozco-Acosta challenges the district court’s refusal
to compel production of the notes as a matter of the Jencks Act, 18 U.S.C.
§ 3500(b), we hold that this challenge fails. We find the notes akin to
notes of surveillance observations, which are not covered by the Jencks
Act. See United States v. Bobadilla-Lopez, 954 F.2d 519, 521-23 (9th Cir.
1992); United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir. 1980).
UNITED STATES v. OROZCO-ACOSTA 7541
because it is simply a routine, objective, cataloguing of an
unambiguous factual matter.” Id. at 1075. We reasoned that
warrants of removal have “inherent reliability because of the
Government’s need to keep accurate records of the movement
of aliens.” Id. (quoting United States v. Hernandez-Rojas, 617
F.2d 533, 535 (9th Cir. 1980)) (internal quotation mark omit-
ted).
We reject Orozco-Acosta’s contention that Melendez-Diaz
has so undermined Bahena-Cardenas that we should depart
from its holding. See Miller v. Gammie, 335 F.3d 889, 892-93
(9th Cir. 2003) (en banc) (explaining that a three-judge panel
should consider itself bound by an intervening higher author-
ity that is “clearly irreconcilable with the reasoning or theory”
of a prior holding of this court). Orozco-Acosta is correct that,
post-Melendez-Diaz, neither the warrant’s routine, objective
nature nor its status as an official record necessarily immu-
nizes it from confrontation. See Melendez-Diaz, 129 S. Ct. at
2536-40. Bahena-Cardenas’s holding that warrants of
removal are nontestimonial, however, also relied upon the fact
that warrants of removal are “not made in anticipation of liti-
gation,” but rather to record the movements of aliens. 411
F.3d at 1075. Melendez-Diaz explained that “[b]usiness and
public records are generally admissible absent confrontation
. . . because—having been created for the administration of an
entity’s affairs and not for the purpose of establishing or
proving some fact at trial—they are not testimonial.” 129 S.
Ct. at 2539-40 (emphasis added). Thus, far from undermining
Bahena-Cardenas, Melendez-Diaz is wholly consistent with
Bahena-Cardenas.
Orozco-Acosta attacks the underlying premise of Bahena-
Cardenas, arguing that warrants of removal qualify as testi-
monial because they are “made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.”
Melendez-Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541
U.S. at 52) (internal quotation marks omitted). The problem
7542 UNITED STATES v. OROZCO-ACOSTA
with this argument is that it is based on one of Crawford’s
formulations of testimonial statements. We decided Bahena-
Cardenas after Crawford and squarely held that warrants of
removal are not testimonial under Crawford. Bahena-
Cardenas, 411 F.3d at 1075. We are bound by that determina-
tion, and the binding effect is not weakened by the repetition,
without further development, of Crawford’s “objective wit-
ness” formulation in Melendez-Diaz. See Melendez-Diaz, 129
S. Ct. at 2542 (“This case involves little more than the appli-
cation of our holding in Crawford . . . .”).
[6] Melendez-Diaz, moreover, repeatedly emphasized that
the certificates of analysis in that case were prepared solely
for use at the defendant’s trial. See id.; see also id. at 2539(the certificates’ “sole purpose” was “providing evidence
against a defendant”); id. at 2540 (the certificates were “pre-
pared specifically for use at petitioner’s trial”). Unlike the cer-
tificates of analysis in Melendez-Diaz, neither a warrant of
removal’s sole purpose nor even its primary purpose is use at
trial. A warrant of removal must be prepared in every case
resulting in a final order of removal, see 8 C.F.R. § 241.2; see
also 241.3, and nothing in the record or judicially noticeable
suggests that more than a small fraction of these warrants ulti-
mately are used in immigration prosecutions.4 Accord United
States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (“The
[warrant of removal’s] primary purpose is to memorialize the
deportation, not to prove facts in a potential future criminal
prosecution.”); United States v. Torres-Villalobos, 487 F.3d
4To illustrate, we take judicial notice of the fact that while nearly
281,000 aliens were removed from the United States pursuant to final
orders of removal in 2006, see U.S. Dep’t of Homeland Sec., Office of
Immigration Statistics, Yearbook of Immigration Statistics 95 (2008),
available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/
ois_yb_2008.pdf, just over 17,000 federal prosecutions for immigration
offenses were commenced during approximately the same time period, see
U.S. Dep’t of Justice, Bureau of Justice Statistics, Federal Judicial Statis-
tics tbl. 4.1 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/html/
fjsst/2006/fjs06st.pdf.
UNITED STATES v. OROZCO-ACOSTA 7543
607, 613 (8th Cir. 2007) (“Warrants of deportation are pro-
duced under circumstances objectively indicating that their
primary purpose is to maintain records concerning the move-
ments of aliens and to ensure compliance with orders of
deportation, not to prove facts for use in future criminal pros-
ecutions.”). Melendez-Diaz cannot be read to establish that the
mere possibility that a warrant of removal—or, for that mat-
ter, any business or public record—could be used in a later
criminal prosecution renders it testimonial under Crawford.
Accord United States v. Mendez, 514 F.3d 1035, 1046 (10th
Cir. 2008) (“That a piece of evidence may become ‘relevant
to later criminal prosecution’ does not automatically place it
within the ambit of ‘testimonial.’ . . . [Otherwise,] any piece
of evidence which aids the prosecution would be testimonial
and subject to Confrontation Clause scrutiny.”). We accord-
ingly reject Orozco-Acosta’s argument that Melendez-Diaz
renders warrants of removal testimonial.
[7] In sum, nothing in Melendez-Diaz is clearly irreconcil-
able with Bahena-Cardenas’s holding that a warrant of
removal is “nontestimonial because it was not made in antici-
pation of litigation.” 411 F.3d at 1075. We therefore are not
at liberty to depart from that holding. We conclude that
admission of the warrant of removal into evidence at Orozco-
Acosta’s trial did not violate the Sixth Amendment.
II. Jury Instructions
[8] Orozco-Acosta argues that the district court erred in
refusing to give his proposed circumstantial evidence instruc-
tion, thus preventing him from adequately presenting his
defense theory that he lacked knowledge that he was in the
United States. The district court’s formulation of jury instruc-
tions is reviewed for abuse of discretion. United States v.
Frega, 179 F.3d 793, 807 n.16 (9th Cir. 1999). “In reviewing
jury instructions, the relevant inquiry is whether the instruc-
tions as a whole are misleading or inadequate to guide the
jury’s deliberation. The trial court has substantial latitude so
7544 UNITED STATES v. OROZCO-ACOSTA
long as its instructions fairly and adequately cover the issues
presented.” Id. (internal citation omitted). We review de novo
whether the jury instructions adequately presented the defen-
dant’s theory of the case. United States v. Somsamouth, 352
F.3d 1271, 1274 (9th Cir. 2003).
Orozco-Acosta’s requested instruction was nearly identical
to California standard criminal jury instruction (“CALJIC”)
2.01, concerning circumstantial evidence.5 Orozco-Acosta
claims that this instruction was necessary to the jury’s consid-
eration of his defense theory that he lacked knowledge that he
was in the United States. Specifically, he argues that the ele-
ment of knowledge necessarily would be proven by circum-
stantial evidence and that the district court’s refusal to read
his proposed instruction prejudiced him because no other
instruction described the manner in which the jurors were to
evaluate circumstantial evidence.
5
Orozco-Acosta’s requested instruction read:
A finding of guilt as to any crime may not be based on circum-
stantial evidence unless the proved circumstances are not only (1)
consistent with the theory that the defendant is guilty of the
crime, but (2) cannot be reconciled with any other rational con-
clusion.
Further, each fact which is essential to complete a set of cir-
cumstances necessary to establish the defendant’s guilt must be
proved beyond a reasonable doubt. In other words, before an
inference essential to establish guilt may be found to have been
proved beyond a reasonable doubt, each fact or circumstance on
which the inference necessarily rests must be proved beyond a
reasonable doubt.
Also, if the circumstantial evidence as to any particular count
permits two reasonable interpretations, one of which points to the
defendant’s guilt and the other to his innocence, you must adopt
that interpretation that points to the defendant’s innocence, and
reject that interpretation that points to his guilt.
If, on the other hand, one interpretation of this evidence
appears to you to be reasonable and the other interpretation to be
unreasonable, you must accept the reasonable interpretation and
reject the unreasonable.
UNITED STATES v. OROZCO-ACOSTA 7545
[9] We previously rejected a similar argument under simi-
lar circumstances. In United States v. James, 576 F.2d 223(9th Cir. 1978), the defendant requested a jury instruction that
was virtually identical to that requested by Orozco-Acosta,
claiming that “his entire defense was dependent upon the
jury’s understanding of the nature and the significance of cir-
cumstantial evidence.” Id. at 226. We explained that “neither
party, including a criminal defendant, may insist upon any
particular language” and found no abuse of discretion in the
district court’s refusal to give the requested instruction
because the jury instructions as a whole were adequate. Id. at
226-27.
[10] The instructions in this case, as a whole, also were
adequate to guide the jury’s deliberation. As in James, the dis-
trict court in this case “instructed the jury on the meaning and
significance of direct and circumstantial evidence.”6 Id. at
227; see also id. at 227 n.2. The district court’s instruction on
the reasonable doubt standard was sufficient to ensure that the
jurors understood “their duty in the event they concluded that
the evidence reasonably permitted a finding of either guilt or
innocence.”7 Id. at 227; see also United States v. Miller, 688
6
The district court in this case instructed the jury:
Remember, also, evidence can [be] direct or circumstantial.
Direct evidence directly proves a fact such as testimony by an
eyewitness about what the witness saw or heard or did. Circum-
stantial evidence, in contrast, is indirect evidence. It’s proof of a
fact from which you can find another fact exists.
Both direct and circumstantial evidence are competent ways of
proving facts. It’s up to you ultimately to decide how much
weight to give either form of evidence.
7
The jury in this case was instructed:
I’ve told you that the burden on the government is to prove this
case beyond a reasonable doubt. . . . Let me tell you how the law
defines that term.
Proof beyond a reasonable doubt is proof that leaves you
firmly convinced that the defendant’s guilty. The government’s
7546 UNITED STATES v. OROZCO-ACOSTA
F.2d 652, 662 (9th Cir. 1982). In light of James, the district
court’s conclusion that the other jury instructions adequately
covered the substance of Orozco-Acosta’s proposed instruc-
tion was not an abuse of discretion. In addition, the district
court read Orozco-Acosta’s requested defense theory instruc-
tion,8 ensuring that the jury instructions as a whole adequately
presented his theory of the case. There was no instructional
error.
III. Sentence
Orozco-Acosta’s final challenge is to his sentence. In
reviewing a sentence, we first consider whether the district
court committed significant procedural error. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In deter-
mining whether the district court committed procedural error,
we review, inter alia, the district court’s interpretations of the
federal Sentencing Guidelines. See United States v. Bendtzen,
not required to prove guilt beyond all possible doubt. Rather, a
reasonable doubt is a doubt based on reason and common sense
and not based purely on speculation or guesswork. Reasonable
doubt may arise from a careful and impartial consideration of all
the evidence or it may arise from a lack of evidence.
If, after you’ve carefully and impartially considered the evi-
dence in this case, you’re not convinced beyond a reasonable
doubt that the defendant is guilty, then you must find him not
guilty.
On the other hand, if, after you’ve weighed and considered
everything carefully, you find yourselves convinced beyond a
reasonable doubt that the defendant’s guilt has been shown, then
it is your duty to find him guilty.
8
The jury was instructed:
Mr. Orozco’s theory of defense in this case is that he did not
know he was in the United States on June 25th, 2008. I remind
you that unless the government establishes beyond a reasonable
doubt either that he knew he was entering the United States or he
realized he was in the United States and then knowingly
remained here, you must find him not guilty.
UNITED STATES v. OROZCO-ACOSTA 7547
542 F.3d 722, 724-25 (9th Cir. 2008). If no procedural error
is found, we then review the sentence for substantive reason-
ableness under the abuse of discretion standard. United States
v. Ressam, 593 F.3d 1095, 1120-22 (9th Cir. 2010).
[11] We find no procedural error in this case. Because
Orozco-Acosta was convicted of violating 8 U.S.C. § 1326,
he properly was given a base offense level of eight. U.S. Sen-
tencing Guidelines Manual § 2L1.2 (2008). The Guidelines
also provide for a sixteen-level upward adjustment “[i]f the
defendant previously was deported . . . after . . . a crime of
violence.” Id. § 2L1.2(b)(1)(A)(ii). Orozco-Acosta was
deported after being convicted of California Penal Code sec-
tion 288(a), which criminalizes lewd and lascivious acts upon
a child under the age of fourteen. See Cal. Penal Code
§ 288(a). In United States v. Medina-Villa, 567 F.3d 507 (9th
Cir. 2009), cert. denied, 130 S. Ct. 1545 (2010) (mem.), we
recently reaffirmed that section 288(a) is a “crime of vio-
lence” for purposes of § 2L1.2(b)(1)(A)(ii). Id. at 516; see
also United States v. Medina-Maella, 351 F.3d 944, 947 (9th
Cir. 2003). Accordingly, Orozco-Acosta’s claim that the dis-
trict court erred by applying the sixteen-level crime-of-
violence enhancement is foreclosed by our precedent.9
[12] We also conclude that Orozco-Acosta’s sentence was
substantively reasonable. The district court imposed a sen-
tence in the middle of the Guidelines range after carefully and
rationally considering the factors in 18 U.S.C. § 3553(a). The
district court emphasized the need to protect the public in
light of the seriousness of Orozco-Acosta’s prior section
288(a) conviction. In determining whether Orozco-Acosta
posed a continuing threat to the public, the district court was
entitled to make reasonable inferences about the import of the
women’s underwear found in Orozco-Acosta’s pocket and his
incredible explanation for its presence. The district also cited
9
We have considered Orozco-Acosta’s arguments that we may depart
from Medina-Villa’s holding, and we find them meritless.
7548 UNITED STATES v. OROZCO-ACOSTA
the fact that Orozco-Acosta previously had been deported
from the United States ten times, and that Orozco-Acosta’s
advanced age had not stopped him from illegally entering the
United States in the present offense. In light of these consider-
ations, the district court’s Guidelines-range sentence was not
an abuse of discretion.
Orozco-Acosta’s reliance on United States v. Amezcua-
Vasquez, 567 F.3d 1050 (9th Cir. 2009), also is unavailing. In
Amezcua-Vasquez, we held that application of the
§ 2L1.2(b)(1)(A)(ii) crime-of-violence enhancement was sub-
stantively unreasonable in light of the staleness of the defen-
dant’s prior conviction. Id. at 1055. Although Orozco-
Acosta’s section 288(a) conviction was similarly aged,
Amezcua-Vasquez “[made] no pronouncement as to the rea-
sonableness of a comparable sentence were . . . ‘the need . . .
to protect the public from further crimes of the defendant’ . . .
greater,” id. at 1058 (quoting 18 U.S.C. § 3553(a)(2)(c)), or
the case presented “other aggravating sentencing consider-
ations,” such as the need for adequate deterrence, id. at 1057.
In light of the district court’s findings that Orozco-Acosta’s
sentence was necessary to protect the public and to deter him
from subsequent re-entry, Amezcua-Vasquez is not control-
ling, and we hold that Orozco-Acosta’s sentence was substan-
tively reasonable.
CONCLUSION
Orozco-Acosta’s conviction and sentence are
AFFIRMED.