United States v. Albino-Loe

Notices to Appear when introduced in a removal hearing, are not testimonial and do not run afoul of constitutional concerns; and, a court is prohibited from ruling on sentence enhancements in removal cases where the state of the originating offense did not permit certain affirmative defenses.

The United States previously removed Arturo Albino-Loe after he was convicted in California of attempted murder and kidnapping. United States Border Patrol ("USBP") forcibly removed Albino-Loe from the United States in June, 2011, however, USBP intercepted Arturo-Loe a month later in the United States. A trial was then convened against Albino-Loe under 8 U.S.C. § 1326. During the trial, USBP Agent Clark identified the defendant as Albino-Loe despite not having the evidentiary foundation to identify him. Albino-Loe objected to the introduction of a Notice to Appear ("NTA") under Sixth Amendment confrontation grounds, arguing that he had not had the opportunity to cross-examine the creator of the NTA. In addition to finding Albino-Loe guilty, the trial court gave Albino-Loe a 16-level sentencing enhancement for his underlying violent crime conviction in California to which Albino-Loe objects. The Ninth Circuit held that the NTA was not testimonial in nature and acted similarly to a filed complaint or other form of summons. The panel found that the identification made by Agent Clark was impermissible but ultimately harmless. Albino-Loe argued that his convictions in California were not “crimes of violence” because California does not recognize the affirmative defense of abandonment. The panel held that they were categorically bound from considering the sentence enhancement and affirmed the trial courts ruling. Albino-Loe also argued that Moncrieffe v. Holder superceded the categorical prohibition from considering the sentence enhancement, but the panel found the present case to be distinguishable because Moncrieffe dealt with whether a crime was a felony or a misdemeanor in regards to removal proceedings not the presence or absence of violence; which attempted-murder and kidnapping are both indicative of violence. AFFIRMED.