Abraham Calderon-Segura, a native and citizen of Mexico, was arrested in 2005 by United States Border Patrol agents after they found him hiding in the brush about one mile north of the U.S.-Mexieo border. He was indicted by a grand jury and convicted after a jury trial as an alien who had been excluded, deported, or removed and thereafter found in the United States, in violation of 8 U.S.C. § 1326. The evidence admitted at his trial included, among other things, documents showing that in 1999 he was ordered deported and was removed from the United States, and the testimony of a fingerprint expert that a fingerprint exemplar taken from Calderon-Segura matched the exemplar on his 1999 warrant of removal, which positively identified him as the same person who was previously deported.
For purposes of sentencing, the government submitted evidence of multiple prior convictions, including a 1997 conviction in California for forcible rape. Over Calderon-Segura’s objections, the district court relied on that aggravated felony conviction to increase the applicable statutory maximum from two years under 8 U.S.C. § 1326(a) to twenty years under § 1326(b)(2) (applying to defendants “whose removal was subsequent to a conviction for commission of an aggravated felony”). Applying the Sentencing Guidelines as advisory, the court ultimately sentenced Calderon-Segura to 94 months imprisonment.
Calderon-Segura raises three issues on appeal. He collaterally attacks the validity of his prior deportation on due process grounds; contends that the expert testimony on exemplar fingerprint examination should have been excluded as unreliable; and contends that the application of an enhanced statutory maximum under 8 U.S.C. § 1326(b) violated the Fifth and Sixth Amendments because the facts necessary to sustain the enhancement were neither pleaded in the indictment nor proved to the jury. We find no merit in these claims, except the claim of indict
I
Collateral Attack
Before trial, Calderon-Segura moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) on the ground that his 1999 removal, which was the product of expedited proceedings conducted pursuant to 8 U.S.C. § 1228(b), violated due process. We review the denial of such a motion to dismiss
de novo. United States v. Camacho-Lopez,
Although there are three requirements for a collateral attack on an underlying deportation order, in this case the parties dispute only whether “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). “An underlying removal order is ‘fundamentally unfair’ if: ‘(1) a defendant’s due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.’”
United States v. Ubaldo-Figueroa,
Calderon-Segura first contends that 8 U.S.C. § 1228(b)(1) violates equal protection by granting the Attorney General seemingly unfettered discretion to choose between expedited removal proceedings under § 1228(b) or general removal proceedings under 8 U.S.C. § 1229a in cases involving similarly-situated non-lawful permanent resident aliens (non-LPRs) with aggravated felony convictions.
1
He argues that the Attorney General’s decision to place him in expedited proceedings deprived him of review by an immigration judge and eligibility for discretionary relief from removal, both of which would have been afforded in general removal proceedings.
See id.
§§ 1182(a), 1229a(a)(1). Expedited proceedings are conducted by a Service officer, not an immigration judge, and the alien is statutorily deemed ineligible for any discretionary relief from removal. 8 U.S.C. § 1228(b)(5);
United States v. Garcia-Martinez,
“It is well established that all individuals in the United States — citizens and aliens alike — are protected by the Due Process Clause of the Constitution. It is equally well established that the Due Process Clause incorporates the guarantees of equal protection.”
Garberding v. INS,
We agree with the Fifth and Eighth Circuits that a rational basis exists for granting the Attorney General discretion to place some non-LPR aggravated felons into expedited removal proceedings and others into potentially more lenient general removal proceedings.
Gonzalez v. Chertoff,
As a “second, independent” basis for invalidating his prior removal, Calderon-Segura contends that his due process rights were violated because he was not advised of his eligibility for two forms of discretionary relief. Specifically, he claims he should have been advised that he could voluntarily withdraw his application for admission and freely depart the country pursuant to 8 U.S.C. § 1225(a)(4), or that he could apply for a waiver under 8 U.S.C. § 1182(h) as the father of four children who are United States citizens.
But even if Calderon-Segura might have otherwise qualified for such relief, neither was “a ‘plausible’ ground for relief from deportation” once he was placed in expedited removal proceedings.
Ubaldo-Figueroa,
Because Calderon-Segura has failed to show the requisite due process violation and prejudice to establish that his prior removal was “fundamentally unfair” under 8 U.S.C. § 1326(d)(3), the district court properly denied the motion to dismiss the indictment.
II
Expert Testimony on Fingerprint Identification
Calderon-Segura contends that the district court erred in admitting at trial expert testimony on fingerprint identification, which the government presented to prove the fact of his 1999 removal. The government’s expert was an instructor in fingerprint identification and testified that an inked thumb-print exemplar he took from Calderon-Segura matches the inked thumb-print appearing on his 1999 warrant of removal.
Calderon-Segura originally raised his objection in a motion in limine, contending that fingerprint identification testimony does not satisfy the test of evidentiary reliability or scientific validity required by Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
We review the district court’s decision to admit expert testimony for an abuse of discretion.
United States v. Alatorre,
Calderon-Segura’s contention that the demonstrated problems with latent fingerprint identification apply equally to exemplar fingerprints is unsupported by the evidence submitted in support of his motion in limine.
Cf. Daubert,
For instance, he argues that “there has never been any [empirical] testing to establish the reliability of identifications which are made from latent fingerprint fragments.” Yet the fingerprints in this case were exemplars taken under controlled circumstances and were complete, not fragmented. As other courts have recognized, fingerprint identification methods have been tested in the adversarial system for roughly a hundred years.
See United States v. Crisp,
Calderon-Segura also argues that there are many real-life examples of false identifications and “a shockingly high rate of misidentifications on latent print examiner proficiency exams.” Yet he fails to show that the same can be said of comparisons involving two inked fingerprints. Although the methods for examining ridge details of latent prints and inked prints are basically the same, latent prints must first be developed and lifted from any variety of surfaces, are ordinarily less clear than inked prints, and may have fewer available points of comparison due to smudging or fragmentation — all of which increase the potential for errors and misidentifications. Moreover, although he offers evidence that inked prints can be less clear than latent prints in some cases, Calderon-Segura has failed to show that the exemplars at issue in this case lacked clarity, were fragmented, or contained any other defects or arti-factual interference that might call into question the accuracy or reliability of their identification.
As the district court was presented with no evidence calling into question the evi-dentiary reliability of exemplar fingerprint identification, neither generally nor regarding the exemplars in this case, there is no merit in Calderon-Segura’s contention that the district court abused its discretion in failing to conduct a more searching examination of the Daubert factors or in declining his request for a full Daubert hearing. In Kumho Tire, the Supreme Court instructed:
The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.... Otherwise, the trial judge would lack the discretionary authority needed to avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises.
Ill
Sentencing
Relying on
Apprendi v. New Jersey,
Notwithstanding the fact that the jury’s verdict did not specify the date or relative timing of Calderon-Segura’s prior removal, there is no jury trial error here. All the evidence of prior removal in this case related to only one removal that occurred in 1999, and based on that evidence the jury found the defendant “guilty of being a deported alien found in the United States.” Thus, “the jury necessarily found beyond a reasonable doubt” not only the fact of a prior removal, but also the date of the removal and that it occurred subsequent to his 1997 rape conviction for purposes of the § 1326(b)(2) enhancement.
United States v. Martinez-Rodriguez,
The claim of indictment error raises more complex issues; however, they are now easily resolved under our recent decision in
United States v. Salazar-Lopez,
To begin, it is now clear that there was indictment error in this case. Under Salazar-Lopez, in order for a defendant to be eligible for an enhanced statutory maximum under § 1326(b), the indictment must allege, in addition to the facts of prior removal and subsequent reentry, either the date of the prior removal or that it occurred after a qualifying prior conviction. Id. at 752. Yet the one count indictment against Calderon-Segura included no such allegation.
Nevertheless, it is equally clear under Salazar-Lopez that such Apprendi error, which Calderon-Segura timely raised for sentencing purposes, is subject to harmless error review. Id. at 753. And on this record, we find the error harmless beyond a reasonable doubt. Aside from raising various Apprendi-related legal objections to the pre-sentence report’s recommendations, Calderon-Segura “made no factual attack” on the applicability of an enhanced statutory maximum under § 1326(b). Id. at 755. Nor is this one of those cases “where the record [is] too indeterminate for us to conclude what result would have obtained had the question been properly placed before the grand ... jur[y].” Id. at 755-56. Given the documentary evidence proving the facts and dates of Calderon-Segura’s prior removal and aggravated felony conviction, we are satisfied beyond a reasonable doubt that the result would have been the same absent the error. See id. at 756.
Although Calderon-Segura also raises a variety of arguments relating to the scope and continuing validity of
Almendarez-Torres v. United States,
The conviction and sentence are AFFIRMED.
Notes
. Section 1228(b)(1) provides: “The Attorney General may, in the case of an alien [not lawfully admitted for permanent residence], determine the deportability of such alien under section 1227(a) (2) (A)(iii) of this title (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 1229a of this title.”