United States v. 2006-05-25 | 05-50489 | USA VPINTADO-ISIORDIA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-50489
Plaintiff-Appellee, D.C. No.
v.  CR-04-01535-BTM
GUILLERMO PINTADO-ISIORDIA, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
May 5, 2006—Pasadena, California
Filed May 26, 2006
Before: Donald P. Lay,* Barry G. Silverman, and
Kim McLane Wardlaw, Circuit Judges.
Per Curiam Opinion
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
5845

-- 1 of 5 --

COUNSEL
Kenneth J. Troiano, San Diego, California, for the appellant.
Carol C. Lam, United States Attorney; Roger W. Haines, Jr.,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; Kara A. Sandoval, Assistant United States
Attorney, San Diego, California, for the appellee.
OPINION
PER CURIAM:
Pintado-Isiordia appeals from his conviction and sentence
for violating 8 U.S.C. § 1326. We affirm in part, vacate in
part and remand for resentencing.
A. Evidentiary Issues
1. Birth record
[1] The record of Pintado-Isiordia’s birth, which was issued
by the government of Nayarit, Mexico, is self-authenticating
under Fed. R. Civ. P. 44(a)(2).1 The Government was not
1Rule 27 of the Federal Rules of Criminal Procedure makes Fed. R. Civ.
P. 44 applicable in criminal proceedings.
5848 UNITED STATES v. PINTADO-ISIORDIA

-- 2 of 5 --

required to submit a “final certification” under that Rule
because the birth record and its attestation were certified by
an Apostille in accordance with the Hague Convention Abol-
ishing the Requirement of Legalisation for Foreign Public Docu-
ments,2 to which both Mexico and the United States are
parties. Pintado-Isiordia argues that the district court erred by
finding “good cause” for admitting the birth record, but that
is a separate exception to the “final certification” requirement.
[2] We do not agree, however, with the district court’s con-
clusion that the Government proved that this particular birth
record fell within the public records exception to the hearsay
rule. The portion of the document that purports to set forth the
legal authority for maintaining the record is shown as “illegi-
ble” in the translated copy submitted to the district court.
Thus, we cannot tell if the document was a record of matters
“observed pursuant to duty imposed by law.” Fed. R. Evid.
803(8).
[3] Nevertheless, any error was harmless. Pintado-Isiordia’s
mother testified that her husband had Pintado-Isiordia’s birth
registered in Nayarit, and thus, the birth certificate merely
corroborates his own witness’s first-hand account of what
transpired after his birth in December 1951. In that regard, the
birth certificate was hardly prejudicial to Pintado-Isiordia’s
defense. For that same reason, even if we assume that the
birth certificate was “testimonial” under Crawford v. Wash-
ington, 541 U.S. 36 (2004), and thus its admission violated
Pintado-Isiordia’s Sixth Amendment right to confront the wit-
nesses against him, he was not denied a fair trial.
2527 U.N.T.S. 189, T.I.A.S. 10072; see Fed. R. Civ. P. 44(a)(2) (“The
final certification is unnecessary if the record and the attestation are certi-
fied as provided in a treaty or convention to which the United States and
the foreign country in which the official record is located are parties.”).
5849 UNITED STATES v. PINTADO-ISIORDIA

-- 3 of 5 --

2. Military records
[4] We see no reason why the Government could not use
the Army National Guard letter to rebut the suggestion that
Pintado-Isiordia’s enlistment contract proves that he was a
United States citizen. In any event, the district court took
more than adequate measures to prevent any unfair prejudice.
First, the district court instructed the jury that it could con-
sider the letter only to decide how much weight to give
Pintado-Isiordia’s enlistment contract, not as independent evi-
dence that he was an “immigrant alien.” Second, it permitted
Pintado-Isiordia’s expert to testify that the Army did not dis-
charge Pintado-Isiordia as a result of any official investigation
and that Pintado-Isiordia served from 1976 to sometime in
1981. That Pintado-Isiordia was honorably discharged had
nothing to do with his alienage, and even if it did, its exclu-
sion was not harmful in light of the limiting instruction and
expert testimony.
3. Military photo
[5] Nor was it error for the district court to exclude the pho-
tograph of Pintado-Isiordia in military uniform. That Pintado-
Isiordia served in the military was established by the enlist-
ment contract and his expert’s testimony. We agree with the
district court that the only apparent purpose behind introduc-
ing the photograph was to elicit the jury’s sympathy and patri-
otism, which runs afoul of Fed. R. Evid. 403.
B. Sentencing Issues
[6] Pintado-Isiordia claims that the district court erred by
using his 1988 conviction for assault with a firearm to
enhance his sentence, because a jury did not find beyond a
reasonable doubt that it was a “crime of violence” (and hence
an “aggravated felony”). That objection has no merit in light
of Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998), and we decline the invitation, as we have done before,
5850 UNITED STATES v. PINTADO-ISIORDIA

-- 4 of 5 --

to hold that the Supreme Court implicitly overruled that deci-
sion. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414
(9th Cir. 2001) (“Almendarez-Torres may eventually be over-
ruled. But such speculation does not permit us to ignore con-
trolling Supreme Court authority.”).
[7] We cannot tell from the record, however, on what basis
the district court concluded that Pintado-Isiordia’s conviction
qualified as a “crime of violence.” In particular, it is unclear
whether the district court relied on Taylor’s categorical
approach, see Taylor v. United States, 495 U.S. 575, 599
(1990), or the modified categorical approach, see United
States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th
Cir. 2003). Thus, we vacate Pintado-Isiordia’s sentence, and
remand to the district court so that it may consider whether
his conviction for assault with a firearm qualifies as a “crime
of violence” under either of those approaches.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
5851 UNITED STATES v. PINTADO-ISIORDIA

-- 5 of 5 --