United States v. Arturo Albino-Loe, 747 F.3d 1206

Albino-Loe, a deported alien, was convicted of being a deported alien found in the United States following a jury trial.
Removal proceedings had ordered his removal as an aggravated felon; he was physically removed in 2011, and later re-arrested in the U.S. near the border.
At trial, government witnesses included USBP agents who identified him and testified about fingerprints; A-File documentation and notices were admitted.
The government introduced four A-File documents, including the Notice to Appear and the Warrant of Removal, authenticated by certifications from DHS officials.
The defense objected to the introduction of these documents on Confrontation Clause grounds, among others, but the documents were admitted.
The district court imposed a 16-level sentencing enhancement for a prior crime of violence based on California attempted murder and kidnapping; Albino-Loe challenged sentencing after the Moncrieffe decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Notice to Appear statements are testimonial	Albino-Loe contends the Notice to Appear is testimonial under Crawford.	Albino-Loe argues the Notice to Appear violates Confrontation Clause rights.	Not testimonial; admission did not violate Crawford
Whether the A-File authenticity certifications were testimonial	Albino-Loe challenges the certifications as testimonial evidence.	Albino-Loe asserts the certifications implicated Confrontation Clause rights.	Certifications not testimonial; admissible
Whether Agent Clark’s in-court identification was error	Identification relied on witness familiarity; may be improper.	Limited familiarity makes identification improper under Rule 701(b).	Harmless error given overwhelming corroboration
Whether Form I-212 testimony was impermissible expert testimony	Form I-212 testimony required immigration-law expertise.	Testimony was improper expert testimony under Rule 702.	Harmless, did not affect substantial rights
Whether the 16-level enhancement for a prior crime of violence was proper post-Moncrieffe	California convictions cannot qualify when voluntary abandonment defense exists; Moncrieffe overruns precedents.	Precedents bars considering affirmative defenses; Moncrieffe does not disturb them.	Enhancement affirmed; Moncrieffe does not disturb categorical approach, and California attempted murder and kidnapping match the generic offense

Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements require confrontation unless unavailable)
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009) (public or business records not testimonial if not created for trial purpose)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (documents created for evidentiary purpose may be testimonial)
United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) (routine certifications not testimonial)
United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013) (Form I-871 statements not testimonial; notices function as removals)
United States v. Velasquez-Bosque, 601 F.3d 955 (9th Cir. 2010) (affirmative defenses not considered in categorical approach)
United States v. Charles, 581 F.3d 927 (9th Cir. 2009) (categorical approach guidance in prior offenses)
Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (societal sharing exception; sentencing factors and elements interplay)
Taylor v. United States, 495 U.S. 575 (U.S. 1990) (origin of the categorical approach)
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (U.S. 2010) (sentencing factors used with categorical approach)
Gonzalez-Monterroso, 2014 WL 575952 (9th Cir. 2014) (categorical definition of attempt; no reliance on voluntary abandonment)
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009) (definition of attempt in categorical approach)