United States v. Venancio Rojas-Pedroza

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50379

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-03309-

DMS-1

VENANCIO ROJAS-PEDROZA ,

Defendant-Appellant.

UNITED STATES OF AMERICA , No. 11-50381

Plaintiff-Appellee,

D.C. No.

v. 3:08-cr-02715-

DMS-1

VERNANCIO ROJAS-PEDROZA , AKA

Venancio Rojas-Pedroza,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

December 3, 2012—Pasadena, California

Filed May 28, 2013

2 UNITED STATES V . ROJAS-PEDROZA

Before: Marsha S. Berzon, Richard R. Clifton,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Criminal Law

The panel affirmed a conviction and sentence for illegal

reentry in a case in which the defendant collaterally

challenged the validity of the removal order underlying his

8 U.S.C. § 1326(b) sentencing enhancement and argued that

the district court violated his Sixth Amendment right to

confrontation by admitting documents from his immigration

A-file.

The panel noted that even if the defendant succeeded on

his collateral challenge to his 2010 removal order, which was

a reinstatement of a 1998 removal order, it would not affect

the indictment’s charge under 8 U.S.C. § 1326(a) because the

government relied on evidence of removals other than the

2010 removal order to prove its case.

The panel observed that the record is ambiguous as to

whether in the 1998 proceedings the immigration judge failed

to inform the defendant of relief in the form of pre-conclusion

voluntary departure for which the defendant claims he was

apparently eligible. The panel concluded that the defendant

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V . ROJAS-PEDROZA 3

failed to show prejudice because the defendant’s equities

would not have caused an IJ to grant him voluntary departure

in 1998.

Rejecting the defendant’s contention that admission of

statements contained in documents from his A-file violated

the Sixth Amendment’s Confrontation Clause, the panel

disagreed that the approach set forth in United States v.

Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), is inconsistent

with subsequent decisions of the Supreme Court. The panel

held that statements in the 1998 warrant of removal,

statements in a Notice of Decision/Intent to Reinstate Prior

Order, and the IJ’s written order from the 1998 proceedings

are all non-testimonial.

The panel held that the district court did not err in

denying the defendant a two-point reduction for acceptance

of responsibility under U.S.S.G. § 3E1.1. The panel also

rejected the defendant’s contention that in light of a

Sentencing Guidelines amendment that was scheduled to take

effect after the defendant’s sentencing, it was substantively

unreasonable for the district court to impose a term of

supervised release. The panel wrote that there is no language

in the Guidelines suggesting that the new supervised release

provision, U.S.S.G. § 5D1.1(c) (2011), has retroactive effect.

4 UNITED STATES V . ROJAS-PEDROZA

COUNSEL

James Fife, Federal Defenders of San Diego, Inc., San Diego,

California, for Defendant–Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

Assistant United States Attorney, Chief, Appellate Section,

Criminal Division, and Kyle W. Hoffman (argued), Assistant

United States Attorney, San Diego, California, for

Plaintiff–Appellee.

OPINION

IKUTA, Circuit Judge:

Venancio Rojas-Pedroza challenges his conviction and

sentence under 8 U.S.C. § 1326(a) and (b) for being an alien

found in the United States after removal. We hold that the

district court was correct to reject Rojas’s collateral challenge

to the validity of the removal order underlying his § 1326(b)

sentencing enhancement. We also reject Rojas’s arguments

that the district court violated his Sixth Amendment right to

confrontation by admitting documents from his immigration

file, and his claims that the district court erred procedurally

and substantively in imposing a sentence.

I

We begin with an overview of Rojas’s relevant

immigration and criminal background before turning to the

proceedings in this case.

UNITED STATES V . ROJAS-PEDROZA 5

A

Rojas entered the United States illegally in 1982, when he

was fourteen. The record shows that since that time, he has

lived intermittently in the United States, but never had legal

status.1 His parents and his two daughters live in Mexico,

although several of his siblings reside in the United States.

When in the United States, Rojas was convicted of a

number of criminal offenses. In October 1993, he was

convicted of unlicensed driving, possession of an open

container while driving, and the failure to pay a fine. In April

1994, he was charged with and later convicted of driving

under the influence. In August 1995, he was convicted of

unlicensed driving. In March 1997, he incurred a second

conviction for driving under the influence. Finally, in

September 2008, he was convicted of aiding and abetting the

transportation of illegal aliens in violation of 8 U.S.C.

§§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II), which is an

aggravated felony for purposes of immigration law. 8 U.S.C.

§ 1101(a)(43)(N). As a result of that conviction he was

1

Sometime prior to April 1991, Rojas applied for temporary resident

status as a Special Agricultural W orker under the provisions of 8 U.S.C.

§ 1160. His application was denied, because the affidavits he submitted

to prove he had performed seasonal agricultural services in the United

States for the required length of time, see §§ 1160(a)(1)(B)(ii) and

(b)(3)(B)(i), were signed by an individual convicted of fraud in connection

with the Special Agricultural W orker program, and the affidavits were

deemed not credible.

6 UNITED STATES V . ROJAS-PEDROZA

sentenced to two years in prison and two years of supervised

release.2

In addition to these criminal convictions, Rojas was

removed or deported from the United States on five occasions

(June 1997, February 1998, November 2004, May 2007, and

April 2010). Rojas illegally returned to the United States

after each of these removals or deportations.

During the hearing for the June 1997 removal, Rojas

admitted to entering the United States illegally. After

concluding that Rojas was removable, the IJ considered

whether he was eligible for relief from removal, including

voluntary departure. In response to the IJ’s questions, Rojas

and his attorney stated that Rojas did not have any

convictions,3 that he had never been to jail, that his Special

Agricultural Worker application had been denied, that he was

unmarried, that he did not have any children, and that his

family was in Mexico. The IJ ordered Rojas removed and

denied his request for voluntary departure “based upon

[Rojas’s] lack of ties to the United States.”

2

In addition to his criminal convictions, Rojas was arrested or cited on

several other occasions. In June 1995, he was cited for driving under the

influence and unlicensed driving. In June 1997, he was arrested by the

Drug Enforcement Administration for possession of heroin. In 2004, he

was arrested for assault. Finally, in May 2007, the San Diego police

arrested Rojas for possession of methamphetamine and possession of

burglary tools.

3

Rojas’s attorney was mistaken. At the time, Rojas had four

misdemeanor convictions, including two convictions for driving under the

influence.

UNITED STATES V . ROJAS-PEDROZA 7

Rojas reentered the United States illegally after the June

1997 removal and was detected in the country again in 1998.

At the hearing for his February 1998 removal, Rojas correctly

informed the IJ that he had been “kicked out” in June 1997,

but he also erroneously stated that he had been granted

voluntary departure instead of being removed. Based on

Rojas’s illegal re-entry, the IJ found him removable. The IJ

then asked Rojas a series of questions to determine whether

he was eligible for relief from removal. In response to these

questions, Rojas stated that his parents were not United States

citizens or legal residents, that he was not married, and that

he did not have children who were United States citizens.

The IJ ordered Rojas removed, and determined that Rojas was

ineligible for voluntary departure because he had previously

been granted voluntary departure, and then illegally returned.

Rojas again returned to the United States illegally. In

October 2009, Rojas’s 1998 removal order was reinstated and

used as a basis for a subsequent removal in April 2010.

B

We now turn to the proceedings in this case. After his

April 2010 removal, Rojas was again found in the United

States illegally, and the government indicted him in August

2010 under 8 U.S.C. §§ 1326(a) and (b).4 Relevant here,

4

8 U.S.C. §§ 1326(a) and (b) state, in pertinent part:

(a) In general

Subject to subsection (b) of this section, any alien

who—

8 UNITED STATES V . ROJAS-PEDROZA

§ 1326(a) provides criminal penalties for an alien who was:

(1) deported or removed from the United States; and (2)

thereafter “enters, attempts to enter, or is at any time found

in, the United States” without the express consent of the

Attorney General. Section 1326(b)(2) establishes enhanced

penalties for an alien who was described in § 1326(a) and

“whose removal was subsequent to a conviction for

commission of an aggravated felony.” In other words, under

§§ 1326(a) and (b)(2), an alien is guilty of illegal reentry and

subject to enhanced penalties if the alien was: (1) convicted

(1) has been denied admission, excluded, deported,

or removed or has departed the United States while

an order of exclusion, deportation, or removal is

outstanding, 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 Attorney General has

expressly consented to such alien’s reapplying for

admission . . .

shall be fined under Title 18, or imprisoned not more

than 2 years, or both.

(b) Criminal penalties for reentry of certain removed

aliens

Notwithstanding subsection (a) of this section, in

the case of any alien described in such

subsection— . . .

(2) whose removal was subsequent to a conviction

for commission of an aggravated felony, such alien

shall be fined under such title, imprisoned not

more than 20 years, or both . . . .

UNITED STATES V . ROJAS-PEDROZA 9

of an aggravated felony, (2) subsequently removed from the

United States, and (3) thereafter illegally reentered or was

found in the United States. See United States v.

Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006).

The indictment charged Rojas under §§ 1326(a) and (b),

and alleged that Rojas was an alien who had been removed

from the United States after December 12, 2008, and was

subsequently found in the United States. These allegations

supported both the government’s § 1326(a) charge (which

required proving that Rojas was removed from the United

States and subsequently found in the United States) and its

§ 1326(b) charge (which, under § 1326(b)(2), required

proving that Rojas’s removal from the United States occurred

after his conviction for an aggravated felony in September

2008).

Before trial, Rojas moved to dismiss the indictment on the

ground that his April 2010 removal was invalid. Because the

April 2010 removal was the only removal that occurred after

his conviction for an aggravated felony in September 2008,

it was necessary to support the sentencing enhancement under

§ 1326(b)(2).

After the district court denied this motion, Rojas filed a

second pretrial motion to bar the admission of documents

from the individual case file maintained by the Department of

Homeland Security (referred to as an “alien file” or “A-File”)

for the purpose of proving alienage. The documents at issue

here are a “Warrant of Removal/Deportation,” a “Notice

of Intent/Decision to Reinstate Prior Order,” and an

“Order of the Immigration Judge.” The “Warrant of

Removal/Deportation” states that Rojas, “who entered the

United States at Otay Mesa, CA on December 6, 1991 is

10 UNITED STATES V . ROJAS-PEDROZA

subject to removal/deportation from the United States, based

upon a final order by: an immigration judge in exclusion,

deportation, or removal proceedings.” The warrant is signed

by an INS official. The back of the warrant contains

information “[t]o be completed by [the] Service officer

executing the warrant.” It lists the “port, date, and manner of

removal,” includes a photo and a fingerprint with the captions

“photograph of alien removed” and “right index fingerprint

of alien removed,” respectively, and is signed by a different

INS official.

The second document at issue, the “Notice of

Intent/Decision to Reinstate Prior Order,” consists of two

parts. The first part notified Rojas that he was “an alien

subject to a prior order of deportation/ exclusion/ removal

entered on February 23, 1998,” that he “was removed on May

21, 2007,” and that he illegally entered in 2007. It also

contains Rojas’s signature, indicating that he was not

contesting this information. The second part of this document

records the immigration officer’s final decision that Rojas

was subject to removal.

The third document at issue, the “Order of the

Immigration Judge,” summarizes the IJ’s oral decision from

Rojas’s 1998 proceedings. The written order contains

checked-off boxes indicating that Rojas was “ordered

removed from the United States to Mexico,” and that his

“application for voluntary departure was denied.” The

document also states that Rojas “waived” appeal.

The district court denied Rojas’s motion to suppress these

documents. Rojas proceeded to trial and the jury convicted

him on all counts.

UNITED STATES V . ROJAS-PEDROZA 11

At sentencing, Rojas argued that he was entitled to a

Sentencing Guidelines adjustment for acceptance of

responsibility because he admitted he was a Mexican citizen

when apprehended and later admitted to immigration agents

that he had been previously deported or removed. The

district court declined to make a downward adjustment for

acceptance of responsibility, stating that “Rojas did not

accept responsibility, he elected to stand on his constitutional

rights, hold the government to its burden of proof to establish

beyond a reasonable doubt all the elements in the allegation.”

In particular, the district court noted that Rojas had

challenged whether he had actually been removed, given that

the government agent who effectuated the removal and

witnessed Rojas cross the border had inadvertently failed to

sign the “witness of departure line” in Rojas’s warrant.

As a result of the § 1326 conviction, Rojas was sentenced

to 51 months’ imprisonment, followed by three years of

supervised release. The district court also revoked Rojas’s

supervised release from his 2008 conviction for aiding and

abetting the transportation of illegal aliens, and sentenced him

to an additional 7 months’ custody to be served consecutively

to his § 1326 sentence. Rojas timely appealed.

II

We have jurisdiction over Rojas’s appeal of his

conviction and the district court’s revocation of supervised

release under 28 U.S.C. § 1291. United States v. Vallee,

677 F.3d 1263, 1264 (9th Cir. 2012). We have jurisdiction

under 18 U.S.C. § 3742 to review Rojas’s sentence. United

States v. Juan, 704 F.3d 1137, 1140 (9th Cir. 2013).

12 UNITED STATES V . ROJAS-PEDROZA

A

We begin with Rojas’s appeal of the district court’s denial

of his motion to dismiss the indictment. Rojas’s challenge to

the indictment is based on his claim that the April 2010

removal is invalid. He reasons as follows: (1) the April 2010

removal is a reinstatement of the 1998 removal order; (2) the

1998 removal order is invalid because the IJ in the 1998

removal proceeding did not advise Rojas of his eligibility to

apply for relief under 8 U.S.C. § 1229c(a)5 (generally referred

to as “pre-conclusion voluntary departure”); and (3) because

the 1998 removal order is invalid, it cannot support the April

2010 reinstatement. We review the district court’s rejection

of this argument de novo. United States v. Gonzalez-Valerio,

342 F.3d 1051, 1053 (9th Cir. 2003).

1

As a threshold matter, we note that even if Rojas

succeeded on his collateral challenge to the April 2010

removal order, it would not affect the indictment’s § 1326(a)

charge.

Although Rojas’s collateral challenge to his prior removal

order, if successful, would preclude the government from

5

8 U.S.C. § 1229c(a) provides that:

(1) The Attorney General may permit an alien

voluntarily to depart the United States at the alien’s

own expense under this subsection, in lieu of being

subject to [removal] proceedings . . . or prior to the

completion of such proceedings, if the alien is not

deportable” for reason of an aggravated felony or

terrorist activity.

UNITED STATES V . ROJAS-PEDROZA 13

relying on that removal at trial, United States v. Medina,

236 F.3d 1028, 1031 (9th Cir. 2001), it would not necessarily

invalidate the indictment. Generally, an indictment is

sufficient so long as it sets forth all the elements necessary to

constitute the offense. United States v. Milovanovic,

678 F.3d 713, 727 (9th Cir. 2012) (en banc). However, where

a defendant is successful in collaterally attacking the only

prior removal that supported the government’s case, we have

held that dismissal of the indictment is appropriate. See, e.g.,

United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.

2006). This is because, under those narrow circumstances,

there would be no question that the government lacked the

evidence to convict the defendant. See United States v.

Phillips, 367 F.3d 846, 855 n.25 (9th Cir. 2004) (noting that

a district court may dismiss an indictment where the facts are

undisputed); see also United States v. Mendoza-Lopez,

481 U.S. 828, 842 (1987).

The result is different in this case. Here, the indictment

tracks § 1326(a)’s elements by alleging that Rojas was an

alien who was deported or removed from the United States

and was subsequently found in the United States without

authorization. The indictment does not rely on a particular

removal for the § 1326(a) charge, and at trial the government

introduced and relied on evidence of Rojas’s 1997 removal

order as well as the April 2010 removal to prove the elements

of the § 1326(a) charge. Because the government relied on

removals other than the April 2010 removal to support its

case, we reject Rojas’s argument that the court erred in not

dismissing the § 1326(a) charge in the indictment.

14 UNITED STATES V . ROJAS-PEDROZA

2

We must still consider, however, whether the district

court erred in not dismissing the § 1326(b) charge in the

indictment. See United States v. W.R. Grace, 504 F.3d 745,

751 (9th Cir. 2007) (recognizing that an indictment may be

dismissed in part).

In order to subject a defendant to § 1326(b)’s enhanced

penalties, the government must allege in the indictment and

prove at trial that the defendant was removed after a

particular date. United States v. Contreras-Hernandez,

628 F.3d 1169, 1175 (9th Cir. 2011).6 To that end, the

indictment alleged that Rojas “was removed from the United

States subsequent to December 12, 2008.” Because it is

undisputed that the April 2010 removal was the only removal

that occurred after this date, the government cannot prove the

§ 1326(b) charge if Rojas successfully challenges that

removal. Accordingly, we turn to Rojas’s collateral challenge

to the April 2010 removal, which was based on a

reinstatement of the 1998 removal order.

In order to make a collateral challenge to a prior removal

or deportation order, a defendant must satisfy 8 U.S.C.

§ 1326(d), which requires the defendant to demonstrate that

“(1) the alien exhausted any administrative remedies that may

have been available to seek relief against the order; (2) the

deportation proceedings at which the order was issued

6

At sentencing, the district court determines, based on the date alleged

and proved by the government, whether “the alien’s removal occurred

after [a] qualifying conviction” that triggers § 1326(b)’s enhanced

penalties. Contreras-Hernandez, 628 F.3d at 1174–75 (internal quotation

marks omitted).

UNITED STATES V . ROJAS-PEDROZA 15

improperly deprived the alien of the opportunity for judicial

review; and (3) the entry of the order was fundamentally

unfair.” § 1326(d).7

Under our case law, a defendant can meet all these

requirements by establishing that the IJ failed to inform the

defendant “of his or her apparent eligibility” for relief as

required by 8 C.F.R. § 1240.11(a)(2),8 and that the defendant

had plausible grounds for relief. See United States v. Vidal-

Mendoza, 705 F.3d 1012, 1014–16 (9th Cir. 2013).

7

8 U.S.C. § 1326(d) states:

Limitation on collateral attack on underlying

deportation order

In a criminal proceeding under this section, an alien

may not challenge the validity of the deportation order

described in subsection (a)(1) of this section or

subsection (b) of this section unless the alien

demonstrates that—

(1) the alien exhausted any administrative remedies

that may have been available to seek relief against

the order;

(2) the deportation proceedings at which the order

was issued improperly deprived the alien of the

opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8

Section 1240.11(a)(2) states:

The immigration judge shall inform the alien of his or

her apparent eligibility to apply for any of the benefits

enumerated in this chapter and shall afford the alien an

opportunity to make application during the hearing . . . .

16 UNITED STATES V . ROJAS-PEDROZA

We recently explained why an IJ’s failure to inform an

alien regarding “apparent eligibility” for relief fulfills the

requirements of §§ 1326(d)(1) and (2), and part of

§ 1326(d)(3). Id. First, the IJ’s error excuses the alien from

the administrative exhaustion requirement of § 1326(d)(1),

because “we deem the alien’s waiver of the right to an

administrative appeal to have been insufficiently ‘considered

and intelligent.’” Id. at 1015 (quoting United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1049–50 (9th Cir. 2004)).

Second, the same failure to inform an alien regarding

“apparent eligibility” for relief also “deprive[s] the alien of

the opportunity for judicial review,” § 1326(d)(2), because

“an alien who is not made aware that he has a right to seek

relief necessarily has no meaningful opportunity to appeal the

fact that he was not advised of that right.” United States v.

Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Finally, this

same error partially satisfies the requirement of § 1326(d)(3),

that the entry of the removal order was “fundamentally

unfair.” A removal order is “fundamentally unfair,” if “(1)

[the alien’s] due process rights were violated by defects in his

underlying deportation proceeding, and (2) he suffered

prejudice as a result of the defects.” Ubaldo-Figueroa,

364 F.3d at 1048 (internal quotation marks omitted). We

have concluded that an IJ’s failure to advise an alien of

“apparent eligibility” to apply for relief is a due process

violation, United States v. Lopez-Velasquez, 629 F.3d 894,

897 (9th Cir. 2010) (en banc), and thus satisfies the first

prong of § 1326(d)(3).

For purposes of this analysis, eligibility for relief is

“apparent” where “the record, fairly reviewed by an

individual who is intimately familiar with the immigration

laws[,] . . . raises a reasonable possibility that the petitioner

may be eligible for relief.” Lopez-Velasquez, 629 F.3d at 897

UNITED STATES V . ROJAS-PEDROZA 17

(internal quotation marks omitted). This inquiry “focuse[s]

on whether the factual circumstances in the record before the

IJ suggest that an alien could be eligible for relief.” Id. at

900. Because “IJs are not expected to be clairvoyant,” we

have explained that an IJ need not advise an alien of possible

relief when the record lacks such a factual basis. Id As a

result, “[u]ntil the alien himself or some other person puts

information before the judge that makes such eligibility

apparent,” the IJ’s duty to advise the alien “does not come

into play.” Id.

Where an IJ failed to advise an alien “of his or her

apparent eligibility” for relief, 8 C.F.R. § 1240.11(a)(2), the

alien must still establish prejudice under the second prong of

§ 1326(d)(3). This requires the alien to make an additional

showing and demonstrate “plausible grounds” for relief.

Gonzalez-Valerio, 342 F.3d at 1054. “Where the relevant

form of relief is discretionary, the alien must make a

‘plausible’ showing that the facts presented would cause the

Attorney General to exercise discretion in his favor.” United

States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.

2011) (internal quotation marks omitted). In determining

whether the alien has made this showing, we apply a two-step

process. First, we identify the factors relevant to the IJ’s

exercise of discretion for the relief being sought. See id. at

1089–90. Next, we determine whether, “in light of the

factors relevant to the form of relief being sought, and based

on the unique circumstances of the alien’s own case, it was

plausible (not merely conceivable) that the IJ would have

exercised his discretion in the alien’s favor.” Id. at 1089

(internal quotation marks, alterations, and citation omitted).

In making this determination, we are not concerned with

general statistics. Id. Instead, we focus on whether aliens

18 UNITED STATES V . ROJAS-PEDROZA

with similar circumstances received relief. See id. at 1091

n.17.

We applied this two-step approach in Barajas-Alvarado.

There, the defendant argued that the IJ erroneously failed to

inform him about the opportunity to withdraw his application

for admission. Id. at 1089. Because an immigration officer’s

authority to grant this relief is discretionary, we began by

identifying the factors relevant to the exercise of such

discretion. Id. In this regard, we noted that the field manual

applicable to immigration officers set forth six factors,

including seriousness of the immigration violation, previous

findings of inadmissibility, and intent to violate the law. Id.

at 1090. We next considered the specific circumstances of

the defendant’s case. There, the defendant had conceded that

he deliberately presented false documents, had been removed

twice, and had been subject to multiple findings of

inadmissibility. Id. at 1090. Applying the relevant factors to

the specific circumstances of the defendant’s case, we

concluded that it was not plausible that the IJ would have

exercised discretion in the defendant’s favor. Id. at 1090–91.

In doing so, we rejected the defendant’s argument that it was

plausible he would have received discretionary relief “as a

matter of statistics,” id. at 1091, and noted that we had

previously considered statistical evidence that IJs grant

discretionary relief applications “fifty percent of the time” to

be insufficient to show plausibility of relief. Id. (quoting

United States v. Corrales-Beltran, 192 F.3d 1311, 1138 (9th

Cir. 1999)). Finally, we rejected as inapposite the alien’s

citations to “two cases in which an alien . . . presented false

documents and was granted withdrawal.” Id. at 1091 n.17.

“Because [those] cases involve[d] aliens in very different

factual circumstances, and the courts in those cases neither

addressed nor explained why the alien was granted

UNITED STATES V . ROJAS-PEDROZA 19

withdrawal relief,” we held that they did not help the

defendant “carry his burden of showing it was plausible he

would have been granted relief in his unique circumstances.”

Id.

3

We now apply § 1326(d)’s requirements to Rojas’s

challenge to his 1998 removal order.

Pursuant to § 1326(d), we begin by considering whether

Rojas adequately established that the IJ failed to inform him

of relief for which he claims he was apparently eligible.

Here, the record is ambiguous. During the 1998 proceedings,

Rojas informed the IJ that, during the 1997 proceeding he had

“signed [his] voluntary deportation.” Based on this

testimony, “an individual who is intimately familiar with the

immigration laws,” Lopez-Velasquez, 629 F.3d at 896

(internal quotation marks omitted), could reasonably

conclude that Rojas was not eligible for pre-conclusion

voluntary departure in 1998 because he had previously

received voluntary departure. See 8 U.S.C. § 1229c(c).9

Nevertheless, the record also contained information

suggesting that Rojas had not received voluntary departure in

1997. Specifically, the government lawyer noted that Rojas’s

file “reflects a removal on June 23, 1997.”

9

8 U.S.C. § 1229c(c) states:

The Attorney General shall not permit an alien to depart

voluntarily under this section if the alien was previously

permitted to so depart after having been found

inadmissible under section 1182(a)(6)(A) of this title

[aliens present in the United States without being

admitted or paroled].

20 UNITED STATES V . ROJAS-PEDROZA

In light of the ambiguity in the record regarding whether

Rojas had apparent eligibility for relief (which would satisfy

§ 1326(d)(1) and (2) and the first component of

§ 1326(d)(3)), we instead resolve Rojas’s collateral challenge

based on the more straightforward inquiry raised by the

second component of § 1326(d)(3): whether Rojas was

prejudiced by the IJ’s failure to inform him of the possibility

of applying for that relief.

Because pre-conclusion voluntary departure is a form of

discretionary relief, we apply Barajas-Alvarado’s two-part

test in determining prejudice.

Under the first step of this test, we identify the factors

relevant to a discretionary grant of pre-conclusion voluntary

departure. Barajas-Alvarado, 655 F.3d at 1089–90. The BIA

has long established that “[i]n exercising discretion on a

voluntary departure application” an IJ should take into

account both favorable and unfavorable factors. See Matter

of Gamboa, 14 I. & N. Dec. 244, 248 (BIA 1972) (citing

cases). The BIA has consistently maintained this approach.

See Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817

(BIA 1999) (explaining that in deciding whether an alien

warrants “a favorable exercise of discretion” with respect to

pre-conclusion voluntary departure, an IJ should weigh both

favorable and unfavorable equities); see also Matter of Loera,

2011 WL 6962801 (BIA Dec. 8, 2011). Favorable equities

include long residence, close family ties to the United States,

and humanitarian needs. Arguelles-Campos, 22 I. & N. Dec.

at 817; accord Gamboa, 14 I. & N. Dec. at 248; Loera, 2011

WL 6962801. Unfavorable equities include “the nature and

underlying circumstances of the deportation ground at issue;

additional violations of the immigration laws; the existence,

seriousness, and recency of any criminal record; and any

UNITED STATES V . ROJAS-PEDROZA 21

other evidence of bad character or the undesirability of the

applicant as a permanent resident.” Arguellos-Campos, 22 I.

& N. Dec. at 817; accord Gamboa, 14 I. & N. Dec. at 248

(noting unfavorable factors “including the alien’s prior

immigration history, the nature of his entry or entries . . . his

violations of the immigration and other laws, and the like”).

Having identified the relevant factors, we now apply them

to the unique circumstances of Rojas’s case as of 1998.

Barajas-Alvarado, 655 F.3d at 1089. Although Rojas came

to the United States in 1982, there is no evidence that he

continuously resided in this country. To the contrary, Rojas

admits that he lived “off and on” in the United States. At the

1998 hearing, he stated that he had no immediate family who

were United States citizens or residents. The record as of

1998 also showed that Rojas had a number of negative

equities. His immigration history would have reflected two

illegal entries, one in 1982 and a second entry in July 1997,

just one month after his June 1997 removal. In addition,

Rojas had four misdemeanor convictions for driving offenses

between 1994 and 1997, including two convictions for

driving under the influence.

Based on these factors, it is not plausible that an IJ would

have exercised discretion in Rojas’s favor at his 1998 hearing.

The record showed no positive equities, other than Rojas’s

intermittent stays in the United States.10 By contrast, the

record showed numerous negative equities, including his

illegal entries and convictions. In particular, the BIA has

noted that driving under the influence is a serious negative

factor. Matter of Romero-Reyes, 2010 WL 3780635 (BIA

10

Rojas does not claim to have had relatives who were United States

citizens or legal residents in 1998.

22 UNITED STATES V . ROJAS-PEDROZA

Sept. 9, 2010); Matter of Butt, 2010 WL 2846348 (BIA June

25, 2010).

Our review of BIA cases supports the conclusion that

Rojas lacked a plausible case for relief.11 We note that the

BIA has affirmed denials of voluntary departure in a number

of cases in which the aliens had equities better than or similar

to Rojas’s equities. See, e.g., Matter of Posadas-Posadas,

2012 WL 371659 (BIA Jan. 18, 2012) (affirming a denial of

voluntary departure as a matter of discretion where the alien

was arrested twice for driving on a suspended license and

once for driving under the influence, but had family ties to the

United States); Matter of Martinez-Hernandez, 2011 WL

4446883 (BIA Sept. 6, 2011) (affirming a denial of voluntary

departure as a matter of discretion where the alien had no

criminal history but also no positive equities); Matter of

Herrera-Lopez, 2003 WL 23521816 (BIA Oct. 31, 2003)

(affirming a denial of voluntary departure as a matter of

discretion where the alien had convictions for public

nuisance, domestic battery, and possession of an open

container in a vehicle, and the alien misrepresented his

criminal history to the IJ); Matter of Serna, 20 I. & N. Dec.

579, 580, 586 (BIA 1992) (affirming a denial of voluntary

departure as a matter of discretion where the alien had a

single conviction for the possession of an altered immigration

document, but had been residing in the United States for

seven years and intended to marry a United States citizen

with whom he had a child); Matter of Lemhammad, 20 I. &

N. Dec. 316, 318, 324–26 (BIA 1991) (affirming a denial of

11

The BIA reviews an IJ’s exercise of discretion de novo. 8 C.F.R.

§§ 1003.1(d)(3)(i), (ii); Matter of A-S-B-, 24 I. & N. Dec. 493, 496–97

(BIA 2008), abrogated on other grounds by Huang v. Attorney Gen.,

620 F.3d 372 (3d Cir. 2010).

UNITED STATES V . ROJAS-PEDROZA 23

voluntary departure as a matter of discretion where the alien

had accepted money to take the exams of three college

students and had a single assault conviction that resulted in a

two day jail sentence, but had a United States citizen brother,

desired to complete his education in the United States, and

had entered the United States legally).

In cases where the BIA reversed a denial of voluntary

departure, the aliens’ equities were more favorable to them

than Rojas’s. See, e.g., Matter of Hernandez-Mata, 2010 WL

4500914 (BIA Oct. 18, 2010) (reversing a denial of voluntary

departure where the alien was arrested for intoxication, but

had two United States citizen children and other family in the

United States); Matter of Maldonado-Hernandez, 2010 WL

4509754 (BIA Oct. 22, 2010) (reversing a denial of voluntary

departure when the alien was 19 years old, had lived in

United States for ten years, and had no criminal record);

Matter of Hernandez-Garcia, 2012 WL 1705671 (BIA Apr.

11, 2012) (reversing a denial of voluntary departure where the

alien impersonated a United States citizen in attempt to

procure a passport, but whose spouse and child were United

States citizens).

Although Rojas points to cases in which aliens with

serious criminal histories received voluntary departure, those

cases involved aliens with significant family ties and other

positive equities that Rojas lacks. For example, in Matter of

Gonzales-Figeroa, 2006 WL 729784 (BIA Feb. 10, 2006), an

alien with multiple assault convictions was granted voluntary

departure. But in addition to a long history in the United

States, the alien in Gonzalez-Figeroa also had a sister and

two nieces who were United States citizens, a mother who

was a permanent resident (whom the alien helped with rent

and medical expenses), no other adverse immigration history,

24 UNITED STATES V . ROJAS-PEDROZA

and a pending visa application. Id. Similarly, in Matter of

Battista, 19 I. & N. Dec. 484 (BIA 1987), an alien convicted

of breaking and entering, grand theft, and possession of

criminal tools was granted voluntary departure, but he had a

United States citizen spouse who was pregnant at the time of

the deportation hearing, United States citizen parents, and

United States citizen siblings.

Indeed, the history of this very case confirms our

conclusion that Rojas did not have a plausible claim for

voluntary departure in 1998. In June 1997, the IJ declined to

grant Rojas voluntary departure even though the IJ was not

aware of Rojas’s criminal history and Rojas had only one

illegal entry at the time. By the 1998 hearing, Rojas had an

additional illegal entry, which occurred in July 1997. Given

that the first IJ declined to grant Rojas voluntary departure, it

is not plausible that the second IJ, after learning of Rojas’s

additional unfavorable equities, would have granted Rojas

voluntary departure in 1998.

In short, when considered in light of the relevant factors,

Rojas’s equities would not have caused an IJ to grant him

voluntary departure in 1998. Therefore, we conclude that

Rojas failed to carry his burden of establishing plausible

grounds for relief. For this reason, Rojas has failed to show

he suffered prejudice as a result of the IJ not informing him

of the availability of pre-conclusion voluntary departure.

Because Rojas was not prejudiced, the 1998 removal order

was not “fundamentally unfair,” and he cannot satisfy

§ 1326(d)(3). See Ubaldo-Figueroa, 364 F.3d at 1048.

Accordingly, the district court did not err in rejecting Rojas’s

motion to dismiss the § 1326(b) charge in the indictment.

UNITED STATES V . ROJAS-PEDROZA 25

B

We now turn to Rojas’s challenge to the district court’s

denial of his motion in limine to bar the admission of several

statements contained in documents from his A-file. He

contends that these statements were testimonial and were thus

admitted in violation of the Confrontation Clause of the Sixth

Amendment. We review the district court’s admission of the

challenged statements de novo. United States v. Nguyen,

565 F.3d 668, 673 (9th Cir. 2009).

1

The Confrontation Clause provides 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. This means that testimonial statements are

inadmissible in criminal prosecutions unless the declarant is

unavailable and the defendant had a prior opportunity to

cross-examine the declarant. Crawford v. Washington,

541 U.S. 36, 59 (2004). A statement is testimonial when it is

“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 v.

Massachusetts, 557 U.S. 305, 310 (2009) (internal quotation

marks omitted). Applying this principle to records in an

alien’s A-file, we have explained that the “mere possibility”

that a record “could be used in a later criminal prosecution”

does not render it testimonial. United States v. Orozco-

Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010). Rather, there

must be some additional showing that the primary purpose of

the document is for use in litigation. See id. The “primary

purpose” of a statement is determined objectively. Michigan

v. Bryant, 131 S. Ct. 1143, 1156 (2011). Thus, “the relevant

26 UNITED STATES V . ROJAS-PEDROZA

inquiry is not the subjective or actual purpose of the

individuals involved in a particular encounter, but rather the

purpose that reasonable participants would have had, as

ascertained from the individuals’ statements and actions and

the circumstances in which the encounter occurred.” Id.

In Orozco-Acosta, we held that warrants of removal are

“not made in anticipation of litigation” but are prepared to

record the movements of aliens. 607 F.3d at 1163. We have

since extended Orozco-Acosta to a number of other A-file

documents, concluding that they are likewise not made in

anticipation of litigation and thus are non-testimonial. See

United States v. Valdovinos-Mendez, 641 F.3d 1031,

1034–35, 1034 n.3 (9th Cir. 2011) (holding that the Warrant

of Removal, Warning to Alien Ordered Deported, and Order

from the Immigration Judge, were non-testimonial).

Rojas contends that Orozco-Acosta’s approach is

inconsistent with the Supreme Court’s subsequent decisions

in Bryant and Bullcoming v. New Mexico, 131 S. Ct. 2705

(2011). According to Rojas, Orozco-Acosta erroneously (1)

applied a subjective test to decide whether A-file documents

are prepared in anticipation of litigation; (2) failed to take

into account the formal context in which immigration records

are prepared; and (3) improperly focused on the testimonial

status of the documents as a whole. We consider each of

these arguments in turn.

First, Rojas claims that because Bryant and Bullcoming

prescribe an objective test to determining whether documents

are prepared in anticipation of litigation, they overruled

Orozco-Acosta, which, in his view, adopted a subjective test.

We disagree, because Orozco-Acosta applied the correct

objective approach to determining the status of A-file

UNITED STATES V . ROJAS-PEDROZA 27

documents. As we explained in Orozco-Acosta, because “[a]

warrant of removal must be prepared in every case resulting

in a final order of removal” and only “a small fraction of

these warrants ultimately are used in immigration

prosecutions,” 607 F.3d at 1163–64, “‘[w]arrants of

deportation are produced under circumstances objectively

indicating that their primary purpose is to maintain records

concerning the movements of aliens and to ensure compliance

with orders of deportation, not to prove facts for use in future

criminal prosecutions.’” Id. at 1164 (emphasis added)

(quoting United States v. Torres-Villalobos, 487 F.3d 607,

613 (8th Cir. 2007)).

Second, Rojas argues that Bryant and Bullcoming

established a new rule that supersedes Orozco-Acosta’s

approach: that courts should consider the formality of the

circumstances in which a statement was made in determining

whether its primary purpose was testimonial. Rojas is

incorrect, because the Court’s focus on the formality of a

statement as part of its Confrontation Clause analysis is

longstanding, and was taken into account by Orozco-Acosta.

Since Crawford, the Supreme Court has noted that the

formality of a statement is a relevant factor in determining

whether the statement is testimonial. Crawford, 541 U.S. at

51 (“An accuser who makes a formal statement to

government officers bears testimony in a sense that a person

who makes a casual remark to an acquaintance does not.”);

see also Davis v. Washington, 547 U.S. 813, 827–28 (2006)

(explaining that formality is one factor that can be relevant to

determining a statement’s primary purpose). Bryant and

Bullcoming reaffirmed this approach, but did not hold that a

statement’s formality, standing alone, is sufficient to establish

that the statement is testimonial. See Bullcoming, 131 S. Ct.

at 2717; Bryant, 131 S. Ct. at 1160. Orozco-Acosta

28 UNITED STATES V . ROJAS-PEDROZA

acknowledged Crawford’s holding that “the ‘core class’ of

testimonial statements” includes both formal and informal

statements, 607 F.3d at 1160 (quoting Crawford, 541 U.S. at

51–52), and its approach to analyzing the immigration

records at issue is consistent with Bullcoming and Bryant.

We therefore remain bound by its holding. See Miller v.

Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003).

Finally, Rojas argues that Bullcoming and Bryant require

a statement-by-statement approach to determining whether

there is a Confrontation Clause violation, and claims that

Orozco-Acosta failed to follow this direction. We agree that

the relevant question under the Confrontation Clause is

whether an individual statement is testimonial, not whether an

entire document is testimonial. See Bryant, 131 S. Ct. at

1159–60 (indicating that trial courts should determine when

a series of statements “transition from nontestimonial to

testimonial” and exclude “the portions of any statements that

have become testimonial” (internal quotation marks

omitted)). But when an immigration record is prepared under

circumstances objectively indicating that the primary purpose

of the record is non-testimonial, the ordinary contents of the

record is likewise non-testimonial. As noted in Melendez-

Diaz, “[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.” 557 U.S. at 324. Unlike the analysts’

certificates in Melendez-Diaz, the immigration records at

issue in Orozco-Acosta were not “prepared specifically for

use at [the defendant’s] trial,” id., and therefore we correctly

determined that the ordinary contents of those records were

non-testimonial. 607 F.3d at 1163. Therefore, we reject this

argument as well.

UNITED STATES V . ROJAS-PEDROZA 29

2

We now apply these principles to Rojas’s contention that

the district court erred in admitting statements from records

in his A-file.

Rojas challenges two statements in the 1998 warrant of

removal: (1) that he entered the United States on December

6, 1991 and (2) that he was subject to removal by order of an

immigration judge. In addition, he objects to “implied

assertions” that the photograph and fingerprint attached to the

warrant belong to him. Because a warrant of removal is not

made in anticipation of criminal litigation, see Orozco-

Acosta, 607 F.3d at 1163, and the statements Rojas challenges

are the ordinary contents of a warrant of removal, we

conclude that they are non-testimonial.

Rojas also challenges statements contained in the Notice

of Intent/Decision to Reinstate Prior Order. In particular, he

challenges the notice’s statements that he was an unlawfully

admitted alien, that he was subject to removal, that he was

ineligible for relief, and that he was ordered removed to

Mexico.

Like a warrant of removal, a Notice of Intent/Decision to

Reinstate Prior Order is non-testimonial. Immigration

officers complete these notices to comply with an agency

regulation that requires the government to apprise the alien of

its determination that the alien is removable and to give the

alien an opportunity to contest the government’s

determination. See 8 C.F.R. § 241.8. Thus, although there is

a “possibility,” Orozco-Acosta, 607 F.3d at 1164, that the

contents of these notices could be used in a criminal

prosecution, the objective circumstances indicate that, like

30 UNITED STATES V . ROJAS-PEDROZA

warrants of removal, their primary purpose is to effect

removals, not to prove facts at a criminal trial. See

Melendez-Diaz, 557 U.S. at 324.

Furthermore, the specific statements that Rojas challenges

are the ordinary contents of a Notice of Intent/Decision to

Reinstate Prior Order. To reinstate a prior removal order, an

immigration officer must determine “[w]hether the alien has

been subject to a prior order of removal,” “whether the alien

is in fact an alien who was previously removed,” and

“[w]hether the alien unlawfully reentered the United States.”

§ 241.8(a). And, as mentioned previously, the government is

required to apprise the alien of this determination and give

the alien an opportunity to contest this determination. Id.

Because the challenged statements are required by regulation

for purposes unrelated to future criminal litigation and

comprise the ordinary contents of this notice, they are not

testimonial.

Finally, Rojas challenges the IJ’s written order from the

1998 proceedings. We have previously held that the

statements in an IJ’s written order are not non-testimonial,

Valdovinos-Mendez, 641 F.3d at 1034–35, because the orders

are not made in anticipation of future criminal litigation, but

instead are “made to record the IJ’s decision regarding [the

alien’s] deportation.” United States v. Ballesteros- Selinger,

454 F.3d 973, 975 (9th Cir. 2006).

C

We next turn to Rojas’s arguments that the district court

made both procedural and substantive errors in sentencing.

UNITED STATES V . ROJAS-PEDROZA 31

1

Rojas contends that the district court erred in denying him

a two-point downward adjustment for acceptance of

responsibility under § 3E1.1(a) of the Sentencing Guidelines.

He claims that the district court failed to acknowledge that he

admitted all the essential elements of the charged offense, and

instead improperly relied on the fact that he exercised his

constitutional right to go to trial. We reject this argument.

The Sentencing Guidelines provide that a district court

may grant a two-level downward adjustment to a defendant

who “clearly demonstrates acceptance of responsibility for

his offense.” U.S.S.G. § 3E1.1(a). According to the

Guidelines, in determining whether a defendant qualifies for

acceptance of responsibility, a district court may consider the

defendant’s conduct in “truthfully admitting the conduct

comprising the offense(s) of conviction, and truthfully

admitting or not falsely denying any additional relevant

conduct for which the defendant is accountable under § 1B1.3

(Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n.1(A). By

contrast, “a defendant who falsely denies, or frivolously

contests, relevant conduct that the court determines to be true

has acted in a manner inconsistent with acceptance of

responsibility.” Id. “The defendant bears the burden of

showing that he has accepted responsibility for his actions.”

United States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir.

2012).

Because a defendant’s right to contest his guilt before a

jury is protected by the Constitution, the decision to go to

trial “cannot be held against him.” Id. at 940 (internal

quotation marks omitted). “In rare situations a defendant

may clearly demonstrate an acceptance of responsibility for

32 UNITED STATES V . ROJAS-PEDROZA

his criminal conduct even though he exercises his

constitutional right to a trial.” U.S.S.G. § 3E1.1 cmt. n.2.

Among other things, “a defendant who puts the government

to its proof may still be eligible for a downward adjustment

if, and only if, he has otherwise demonstrated sincere

contrition.” Ramos-Medina, 706 F.3d at 940 (internal

quotation marks omitted). Accordingly, we have reversed a

district court that “mistakenly applied a per se bar against

downward adjustment based on the defendant’s decision to go

to trial.” Id. at 941 (citing United States v. Ochoa-Gaytan,

265 F.3d 837, 844 (9th Cir. 2001)). A district court does not

commit reversible error, however, simply because it notes the

fact that the defendant went to trial, so long as the court bases

its final decision on the facts of the case and record as a

whole. Id. at 941–42. We review for clear error a district

court’s finding that a defendant did not accept responsibility

for his offense. Id. at 936.

In concluding that Rojas was not entitled to an adjustment

for acceptance of responsibility, the district court noted that

Rojas held the government to its burden of proof. The court

did not, however, suggest that Rojas’s decision to go to trial

meant that a downward adjustment for acceptance of

responsibility was improper per se. Instead, the court

considered other factors, focusing particularly on Rojas’s

cross-examination of the government agent who had

witnessed his removal in April 2010. Rojas argues that the

district court clearly erred in finding that this part of his trial

strategy weighed against acceptance of responsibility.

According to Rojas, the April 2010 removal was not an

element of the § 1326(a) offense, but merely a sentencing

factor under § 1326(b), and therefore the cross-examination

did not constitute a frivolous challenge to relevant conduct.

We disagree. In order to convict Rojas under § 1326(a), the

UNITED STATES V . ROJAS-PEDROZA 33

government had to prove beyond a reasonable doubt that

Rojas was removed from the United States. The government

was entitled to prove this element of the offense by

establishing that Rojas was removed in April 2010. See Old

Chief v. United States, 519 U.S. 172, 186 (1997) (holding that

as a general rule, “the prosecution is entitled to prove its case

by evidence of its own choice”). Under the Guidelines, it was

appropriate for the district court to view Rojas’s frivolous

challenge to the evidence supporting an element of the

offense as weighing against acceptance of responsibility.

U.S.S.G. § 3E1.1 cmt. n.1(A). Moreover, the district court

could reasonably determine that Rojas’s frivolous challenge

to his eligibility for a sentencing enhancement under

§ 1326(b) also reflected a lack of “sincere contrition.”

Ramos-Medina, 706 F.3d at 940. This determination is

entitled to “great deference” because the “sentencing judge is

in a unique position to evaluate” such factors. U.S.S.G.

§ 3E1.1 cmt. n.5.

Because the court did not enunciate a per se rule, but

rather relied on the facts of the case, including Rojas’s

frivolous challenge to evidence of his April 2010 removal, it

was not clearly erroneous for the district court to conclude

that Rojas’s conduct was inconsistent with an acceptance of

responsibility and to deny him a downward adjustment.

2

Rojas also challenges the substantive reasonableness of

his sentence. He argues that it was substantively

unreasonable for the district court to impose a term of

supervised release as part of his sentence because he would

likely be deported or removed after he served his prison term,

and a proposed amendment to the Sentencing Guidelines,

34 UNITED STATES V . ROJAS-PEDROZA

which was scheduled to take effect a little more than a month

after Rojas’s sentencing, stated that courts “ordinarily should

not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant

is a deportable alien who will likely be deported after

imprisonment.” U.S.S.G. § 5D1.1(c) (2011). Rojas’s

argument is foreclosed by United States v. Ruiz-Apolonio,

which held that sentencing courts may, but “are not required

to consider” a prospective amendment to the Sentencing

Guidelines, “unless the amendment has been given retroactive

effect by express decision of the [Sentencing] Commission.”

657 F.3d 907, 917–18 (9th Cir. 2011). In this case, there is

no language in the 2011 Sentencing Guidelines suggesting

that the new supervised release provision has retroactive

effect. See U.S.S.G. § 5D1.1(c) (2011); U.S.S.G. app. C, vol.

III, at 407–11 (2011). Accordingly, the district court did not

err in declining to follow the future amendment to the

guidelines language.12

AFFIRMED.

12

Rojas also argues that district court’s revocation of his supervised

release from his 2008 conviction violated Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (holding that any fact, other than that of a prior

conviction, that increases criminal penalties above the statutory maximum

must be proven beyond a reasonable doubt and found by a jury). As he

concedes, United States v. Santana forecloses his argument. 526 F.3d

1257, 1262 (9th Cir. 2008). W e therefore reject it.