188 F.3d 1072 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOSE GUADALUPE BLANCO-GALLEGOS, Defendant-Appellant.
No. 98-50136
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted February 3, 1999--Pasadena, CaliforniaMemorandum Filed April 1, 1999Order and Opinion1 Filed August 23, 1999

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,  San Diego, California, for the defendant-appellant.
Virginia A. Black (On the Briefs), Assistant United States  Attorney; and George D. Hardy (Argued), Assistant UnitedStates Attorney, San Diego, California, for the plaintiff-appellee.
Appeal from the United States District Court  for the Southern District of California;  Marilyn L. Huff, District Judge, Presiding.  D.C. No. CR-96-02408-MLH.
Before: Dorothy W. Nelson, Alex Kozinski, and  Stephen S. Trott, Circuit Judges.


1
Opinion by Judge Trott; Partial Concurrence and Partial Dissent by Judge D.W. Nelson

ORDER

2
The memorandum disposition filed April 1, 1999, is redesignated as an authored opinion by Judge Trott, and the dissent filed April 1, 1999, is withdrawn. A revised dissent will  be filed with the opinion.

OPINION
TROTT, Circuit Judge:
OVERVIEW

3
Jose Guadalupe Blanco-Gallegos ("Blanco-Gallegos")  appeals his conviction and sentence for attempting to reenter  the United States after deportation in violation of 8 U.S.C.  S 1326. Blanco-Gallegos argues that: (1) there was insufficient evidence at trial to prove that the Attorney General had  not consented to his application for reentry into the United  States; (2) the district court erred in admitting into evidence  proof that Blanco-Gallegos had been convicted of an aggravated felony; (3) the district court erred by assessing criminal  history points for the aggravated felony under U.S.S.G.  S 4A1.2; and (4) the district court erred in refusing to award  an additional one-point reduction in offense level for acceptance of responsibility under U.S.S.G. S 3E1.1. We have jurisdiction pursuant to 18 U.S.C. S 3742 and 28 U.S.C. S 1291,  and we affirm in part, reverse in part, and remand.

BACKGROUND

4
Blanco-Gallegos is a citizen of Mexico who legally entered  the United States as a permanent resident. After being convicted of possessing a controlled substance for sale and for  engaging in lewd acts with a child, however, Blanco-Gallegos  lost his permanent residence status and was deported in 1994.  He illegally reentered the United States and was deported  again in 1996. The day after this 1996 deportation, BlancoGallegos entered the San Ysidro Port of Entry and falsely  claimed to be a United States citizen, born in Puerto Rico.  When the border authorities discovered his true identity,  Blanco-Gallegos was arrested for attempting to reenter the  United States after deportation in violation of 18 U.S.C.  S 1326. After waiving his Miranda rights, Blanco-Gallegos told the INS officers that he was a citizen of Mexico, had no legal right to be in the United States, and had been deported  the day before.


5
Blanco-Gallegos was indicted under S 1326 for his  attempted reentery. At trial, the district court admitted into  evidence a stipulation between the government and BlancoGallegos, which provided that Blanco-Gallegos had been convicted of an aggravated felony. Blanco-Gallegos's defense  was that he did not intend to reenter the United States, but had  gotten drunk and accidentally walked into the port of entry.  The jury rejected this defense, and Blanco-Gallegos was convicted.


6
At sentencing, the district court granted Blanco-Gallegos a  two-level reduction in offense level for acceptance of responsibility but refused to award him an additional reduction for  providing timely and complete information concerning his  role in the offense. This appeal followed.

I. Sufficiency of the Evidence

7
To establish a case of attempted illegal reentry after  deportation, the government must prove that the Attorney  General had not consented to the alien's application for reentry. Blanco-Gallegos argues that there was insufficient evidence to support this element of the crime. There is sufficient  evidence to support a conviction if, viewing the evidence in  the light most favorable to the prosecution, any rational trier  of fact could have found the essential elements beyond a reasonable doubt. United States v. Nelson, 137 F.3d 1094, 1103  (9th Cir. 1998).


8
At trial, the government offered a "certificate of nonexistence," which stated that Blanco-Gallegos's INS A-File,2  which contains the records of Blanco-Gallegos's contacts  with the United States, did not include a request for permission to reapply. The government also offered testimony from  an INS agent who stated that it was the INS's duty to keep  complete records on all aliens having contact with the United  States, and that the A-File contained the records of BlancoGallegos's contacts with the United States. Viewing this evidence in the light most favorable to the government, a reasonable jury could have concluded that the Attorney General had  not consented to Blanco-Gallegos's reentry into the United  States. See Scantleberry-Frank, 158 F.3d at 617; United  States v. Oris, 598 F.2d 428, 430 (5th Cir. 1979).


9
Blanco-Gallegos argues that this evidence only proves  that the INS did not have a record of an application for reentry, not that the Attorney General had not consented to reentry. Blanco-Gallegos's argument ignores the fact that the INS  is the Attorney General's agency for dealing with immigration  issues. See 8 C.F.R. SS 2.1, 103.1(f)(3)(iii)(E), 103.1(g)(3)  (iii)(B). The Attorney General has specifically delegated her authority to adjudicate applications for permission to reapply  for admission into the United States to the INS. See 8 C.F.R.  SS 103.1(f)(3)(iii)(E), 103.1(g)(3)(iii)(B). Additionally, aliens  seeking permission to reapply for admission into the United  States are required to submit an application to an INS consular officer. See 8 C.F.R. S 212.2(b). Because the INS is the  Attorney General's agent for immigration matters and specifically for processing applications for permission to reapply for  admission into the United States, the jury could reasonably  infer from the lack of an application in the INS's A-File that  no such application existed. As the Fifth Circuit said in Oris,  "[b]ecause the INS is the branch of the Justice Department to  which the Attorney General has delegated his responsibilities  over immigration matters, the jury could reasonably conclude  that any expression of the Attorney General's consent would appear in the INS files. Evidence regarding other Justice  Department records was unnecessary." 598 F.2d at 430.3

II. Prior Felony Conviction

10
Blanco-Gallegos next argues that the district court erred in  admitting a stipulation between the prosecution and defense  counsel, which provided that "on or about August 29, 1986,  defendant was convicted of an aggravated felony. " The district court's decision to admit evidence of prior crimes or bad  acts pursuant to Rule 404(b) of the Federal Rules of Evidence  is reviewed for an abuse of discretion. Nelson , 137 F.3d at  1106.


11
Although the district court's decision to admit evidence of Blanco-Gallegos's prior felony conviction was in line with then-existing Ninth Circuit law, see United States v.  Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir. 1992), admitting evidence of a prior felony conviction has since been held to be erroneous. See Almendarez-Torres v. United States, 523  U.S. 224, 118 S. Ct. 1219, 1226 (1998); United States v.  Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The district court  therefore erred in admitting evidence of Blanco-Gallegos's  prior felony conviction. However, in this case, any prejudice caused by admission of the stipulation was more probably  than not harmless. See id.


12
Although admission of evidence that a defendant had  been convicted of an aggravated crime always carries a risk  of prejudice, Almendarez-Torres, 118 S. Ct. at 1226, in this  case any prejudice to Blanco-Gallegos was minor and sanitized. Indeed, the fact that Blanco-Gallegos was convicted of  a prior aggravated felony could not have been introduced in a more sanitized way. The nature of the aggravated felony for  which Blanco-Gallegos was convicted was not discussed. The  prior conviction was only mentioned three times during the  trial: once when the stipulation was entered into the record,  once in the prosecution's closing when explaining why Blanco-Gallegos had been deported, and once again in the  prosecution's closing when reviewing each element of the  charged crime. The government did not suggest BlancoGallegos's credibility was impaired or that his testimony  should not be believed because he had been convicted of an  aggravated felony.


13
Additionally, the evidence of Blanco-Gallegos's guilt in  this case was overwhelming. At trial, Blanco-Gallegos's only  defense was that he was voluntarily intoxicated and had no  intention of entering the United States. However, when he  entered the port of entry, Blanco-Gallegos did not say he had  made a mistake or try to turn around and exit the building.  Instead, Blanco-Gallegos entered the port of entry, waited in  line, approached an INS agent, told the INS agent that he was  a United States citizen, born in Puerto Rico, and, when asked  for identification, gave the INS officer an invalid social security card and drivers license. This social security card was  entered into evidence. Only after he was taken to a secondary  area for questioning did Blanco-Gallegos admit to being a citizen of Mexico who had been deported. In light of this evidence, the jury was able to reject the unsubstantiated, selfserving, and throughly unpersuasive defense of BlancoGallegos that his voluntary intoxication prevented him from  forming the necessary intent.


14
III. Double Counting a Prior Cocaine Conviction in  Sentencing


15
Blanco-Gallegos argues that the district court erred in  assessing both a sixteen-level increase in offense level and  three criminal history points for a single criminal conviction. A district court's interpretation of the sentencing guidelines is  reviewed de novo. United States v. Bailey, 139 F.3d 667, 667  (9th Cir. 1998).


16
Pursuant to S 1326(b)(2) and based on his conviction for  possession of a controlled substance for sale, BlancoGallegos's offense level was increased sixteen levels. BlancoGallegos was also given three criminal history points for that  same conviction. Blanco-Gallegos argues that because this  conviction was used to increase the offense level, it should  not be used to increase his criminal history level as well. After  Blanco-Gallegos filed his appeal, but before oral argument,  we rejected that argument in United States v. Luna-Herrera,  149 F.3d 1054, 1055 (9th Cir. 1998). We follow that decision  in this case. The commentary to S 2L1.2 of the Sentencing  Guidelines specifically provides that "[a]n adjustment under  subsection (b) . . . [deportation of defendant after a prior felony conviction] applies in addition to any criminal history  points added for such conviction." U.S.S.G. S 2L1.2, cmt. 4.  The district court did not err in following this plain language.

IV. Acceptance of Responsibility

17
Finally, Blanco-Gallegos argues that the district court erred  in refusing to grant him an additional one-level reduction in  offense level for acceptance of responsibility under U.S.S.G.  S 3E1.1(b). "Whether a defendant is entitled to an adjustment  based on acceptance of responsibility is a factual determination reviewed for clear error." United States v. VillasenorCesar, 114 F.3d 970, 973 (9th Cir. 1997).


18
The district court awarded a two-level reduction in offense level under S 3E1.1(a) for acceptance of responsibility. That determination was not appealed. Therefore, the only  issue is whether Blanco-Gallegos satisfied one of the two  options under S 3E1.1(b) for the additional one-point reduction in offense level. A defendant qualifies for the one-point  reduction under (b)(1) "if he timely provides complete  information." United States v. Stoops, 25 F.3d 820, 823 (9th  Cir. 1994). The key inquiry for S 3E1.1(b) is whether the confession was complete and timely. United States v. Eyler, 67  F.3d 1386, 1391 (9th Cir. 1995). At the time of his arrest,  Blanco-Gallegos gave a statement which admitted all of the  elements of the charged crime. Although not used at trial, this  statement was timely and complete. Blanco-Gallegos was  therefore entitled to the additional one-point reduction in  offense level under S 3E1.1(b).


19
The government argues that Blanco-Gallegos recanted his  statement and forced the government to prepare for trial.  Those facts are relevant to the initial two-point reduction  under S 3E1.1(a), but that issue was not appealed. Once the  two-point reduction under S 3E1.1 has been awarded, the only  question is timeliness and completeness, and BlancoGallegos's statement was complete and timely. We therefore  reverse the district court's decision denying the additional  one-point reduction under S 3E1.1(b).


20
V. Conviction for Violating 8 U.S.C. S 1326(b)(2)


21
Blanco-Gallegos was convicted of violating 8 U.S.C.  SS 1326(a) and (b)(2). After Blanco-Gallegos's conviction,  the Supreme Court held that S 1326(b)(2) is a sentencing factor and not a separate criminal offense. See Almendarez- Torres, 118 S. Ct. at 1226. On remand, the district court shall  apply Almendarez-Torres to Blanco-Gallegos's conviction on  this count. See Alviso, 152 F.3d at 1199.

CONCLUSION

22
Blanco-Gallegos's conviction under 8 U.S.C. S 1326(a) is  affirmed. The case is remanded for reconsideration of BlancoGallegos's conviction under 8 U.S.C. S 1326(b)(2) and for  resentencing in conformity with this opinion.


23
With these amendments, Judges Kozinski and Trott vote to  deny the petition for rehearing. Judge Nelson would grant the  petition. Judges Kozinski and Trott would deny the petition  for rehearing en banc, and Judge Nelson so recommends. The  petition for rehearing and the petition for rehearing en banc  are DENIED.


24
AFFIRMED IN PART; REVERSED and REMANDED IN  PART.



Notes:


1
 The dissent filed April 1, 1999, is hereby withdrawn. A revised dissent  is being transmitted concurrently with this Opinion and Order Redesignating Memorandum Disposition to an Opinion.


2
 "An INS A-File identifies an individual by name, aliases, date of birth,  and citizenship, and all records and documents related to the alien are  maintained in that file." United States v. Scantleberry-Frank, 158 F.3d  612, 617 (1st Cir. 1998).


3
 In Scantleberry-Frank the First Circuit likewise held that absence, in  the INS's files, of the Attorney General's consent to reapplication was sufficient to prove the Attorney General had not consented to the alien's reapplication for admission. 158 F.3d at 617. We agree.



25
D.W. NELSON, Dissenting in part, Concurring in part.


26
Because I think that the panel has underestimated the risk  of prejudice and overstated the strength of the government's  case, I respectfully dissent from the portion of the panel's  opinion holding that the error was harmless. It is undisputed  that the district court's admission of the stipulation that  Blanco-Gallegos had been convicted of an aggravated felony,  which was referenced at several points during the trial, was error. See United States v. Alviso, 152 F.2d 1195, 1199 (9th  Cir. 1998). I am compelled to dissent because the government  has failed to carry its burden of proving that the prejudice was  harmless. See id.


27
First, I disagree with the majority's assertion that "any prejudice to Blanco-Gallegos was minor and sanitized. " This conclusion is at odds with the Supreme Court's decision in  Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998),  in which the Court emphasized that it has "long recognized"  that "the introduction of evidence of a defendant's prior  crimes risks significant prejudice." Id. at 1226 (emphasis  added). The Court went on to caution that: Even if a defendant's stipulation were to keep the  name and details of the previous offense from the  jury, jurors would still learn, from the indictment,  the judge, or the prosecutor, that the defendant had  committed an aggravated felony . . . . [T]here can be no question that evidence of the nature of the prior  offense, here, that it was aggravated or serious, carries a risk of unfair prejudice to the defendant.


28
Id. (internal quotation marks and citation omitted). Therefore,  the fact that Blanco-Gallegos could have been prejudiced to  an even greater extent by introducing more details about his  prior conviction in no way diminishes the seriousness of the  risk of prejudice created by admitting the nature of his prior  offense.


29
Second, the error was not harmless because the admission of the prior conviction likely undermined Blanco-Gallegos'  credibility. In order to prove that Blanco-Gallegos attempted  to reenter the United States, the government had to prove  every element of the crime beyond a reasonable doubt, including that Blanco-Gallegos possessed the specific intent to enter  the United States. See United States v. Hadley , 918 F.2d 848,  853 (9th Cir. 1990) ("[A]ttempt includes an element of specific intent even if the crime attempted does not.") (internal  quotation marks and citation omitted). Blanco-Gallegos'  defense was that he drank an extreme amount of alcohol in  the hours prior to the alleged attempt to reenter and thus was  too intoxicated to form specific intent. Cf. United States v.  Sneezer, 900 F.2d 177, 180 (9th Cir. 1990) (defendant was  entitled to present defense of voluntary intoxication to negate  specific intent element). I fail to see how the majority can  characterize the evidence as "overwhelming" as it relates to  this element. Although Blanco-Gallegos may have offered no  evidence other than his own testimony, the government  offered no evidence directly contradicting Blanco-Gallegos'  specific intent defense. The jury's assessment of the specific  intent element thus hinged on its evaluation of BlancoGallegos' credibility.


30
Contrary to the majority's argument, Blanco-Gallegos'  defense was not too farfetched for a jury to accept. The fact  that Blanco-Gallegos initially stated that he was from Puerto  Rico does not necessarily contradict his intoxication defense.  The evidence at trial demonstrated that claiming Puerto Rican  heritage to an immigration inspector well-versed in different  Hispanic accents was an implausible means of obtaining entry  to the U.S. In fact, the immigration inspector immediately recognized that Blanco-Gallegos, who is Mexican, did not have a Puerto Rican accent. In light of Blanco-Gallegos' unequivocal testimony that he was drunk and never intended to enter  the U.S., the jury could have reasonably concluded that his  statement about Puerto Rico was a clumsy comment consistent with his claim that he was not "thinking straight." Ultimately, the jury's resolution of this element boiled down to a  credibility determination, and the admission of BlancoGallegos' aggravated felony conviction unfairly slanted it in  the government's favor.


31
Our decision in United States v. Garcia-Orozco , 997 F.2d  1302 (9th Cir. 1993), is instructive. In Garcia-Orozco, we  reversed a conviction because the defendant's prior conviction had been erroneously admitted, and his "defense rested  largely on his own testimony." Id. at 1305. We concluded that  the admission of the prior conviction "more than likely  affected the jury's measure of Garcia-Orozco's credibility."  Id. In light of the centrality of Blanco-Gallegos's credibility  in this case and the Supreme Court's admonition in  Almendarez-Torres, I cannot agree with the majority's conclusion that the error was harmless. I therefore dissent in part

