United States v. Isaac Ramos , 397 F. App'x 314 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50059
Plaintiff - Appellee, D.C. No. 3:07-cr-03402-IEG-1
v.
MEMORANDUM *
ISAAC RAMOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted December 8, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Issac Ramos appeals his conviction and sentence for unlawful reentry after a
prior deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court properly denied Ramos’s suppression motion. It did not
clearly err in finding that the Border Patrol agents had reasonable suspicion to
believe that Ramos was in the country illegally when they questioned him. Ramos
was found hiding in the brush with five other individuals approximately eight
miles north of the Mexican border, in an area well-known to be a border-crossing
route. The agents were not required to advise Ramos of his Miranda rights because
he was questioned during a non-custodial Terry stop, see Terry v. Ohio, 392 U.S. 1,
29 (1968), and the questions were “reasonably related in scope to the justification
for their initiation.” United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975)
(internal quotation marks omitted). Nor did the district court clearly err in finding
that Ramos’s statements were voluntary, based on its finding that the agents’
testimony was credible.
2. The district court did not abuse its discretion by admitting the decision of
the Immigration Judge (“IJ”) and order of deportation contained in Ramos’s Alien
Registration File (“A-file”). Contrary to Ramos’s assertion, such evidence “do[es]
not fall within the prohibition established by the Supreme Court in Crawford.”
United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir. 2006)
(discussing Crawford v. Washington, 541 U.S. 36 (2004)) (internal quotation
marks omitted). Moreover, the IJ’s decision and order of deportation is
2
nontestimonial because it “was not made in anticipation of litigation[] and . . . is
simply a routine, objective cataloging of an unambiguous factual matter.” United
States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005).1 Therefore,
Ramos’s Confrontation Clause rights were not violated.
3. The district court did not err in denying Ramos’s motion to suppress his
identity, fingerprints, and criminal record. Even were his arrest unlawful, “the
simple fact of who a defendant is cannot be excluded, regardless of the nature of
the violation leading to his identity.” United State v. Del Toro Gudino, 376 F.3d
997, 1001 (9th Cir. 2004). There is “no sanction to be applied when an illegal
arrest only leads to discovery of the man’s identity and that merely leads to the
official file or other independent evidence.” United States v. Guzman-Bruno, 27
F.3d 420, 422 (9th Cir. 1994) (internal quotation marks omitted).
4. Nor did the district court err in denying Ramos’s Rule 29 motion based on
insufficiency of the evidence. Viewing the evidence in the light most favorable to
the government, any rational trier of fact could have found beyond a reasonable
1
Ramos has waived his argument that the district court’s admission of the
Certificate of Nonexistence of Record (“CNR”) violated the Confrontation Clause,
because “arguments not raised by a party in its opening brief are deemed waived.”
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). We note, however, the
government would have “met its burden of proving harmlessness in this case.”
United States v. Orozco-Acosta, 607 F.3d 1156, 1162 (9th Cir. 2010).
3
doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), that Ramos “physically
left the country sometime between the time he was ordered deported and the time
he was found in the United States.” United States v. Bahena-Cardenas, 411 F.3d at
1074. The record contained evidence of Ramos’s warrant of removal and testimony
by an immigration enforcement agent that such warrants are signed only after the
individual is witnessed crossing the international border into Mexico. “[T]his
warrant is sufficient alone to support a finding of removal beyond a reasonable
doubt.” United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007) (internal
quotation marks omitted).
5. The district court did not err in declining to adjust the offense level
downward by three for acceptance of responsibility. There is no evidence in the
record that supports a finding that Ramos accepted responsibility. Nevertheless, the
district court adjusted the offense level downward by three levels, taking into
consideration his admission of illegal presence, that he had offered to enter into a
conditional plea agreement, and Ramos’s right to go to trial when the government
rejected his offer. Therefore, the sentence is both procedurally and substantively
reasonable, and the district court did not abuse its discretion in imposing the
sentence.
AFFIRMED.
4