                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50321

              Plaintiff - Appellee,              D.C. No. 3:08-cr-01002-L-1

  v.
                                                 MEMORANDUM *
FRANKLIN ANTONIO FIGUEROA-
MONTES,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                      Argued and Submitted August 31, 2010
                              Pasadena, California

Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.

       Franklin Figueroa-Montes appeals his jury conviction and sentence for being

a deported alien found in the United States in violation of 8 U.S.C. § 1326.

Because the facts are known to the parties, we repeat them here only as necessary

to explain our decision.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Figueroa argues that the district court erred by not dismissing the indictment

because the grand jury was improperly instructed that it was obligated to indict

upon a showing of probable cause. The grand jury instruction was not structural

error. See United States v. Navarro, 608 F.3d 529, 538 (9th Cir. 2010). Because it

was not structural error, it was rendered harmless by Figueroa’s subsequent

conviction by a jury. See United States v. Mechanik, 475 U.S. 66, 70 (1986);

Navarro, 608 F.3d at 538–40.

      Figueroa argues that the admission in evidence of certain documents

violated his Sixth Amendment right to confront his accusers. As to the certificate

of nonexistence of record, the government admits that there was an error under

current Confrontation Clause law, but given all the remaining evidence adduced at

trial, we are convinced that the jury would have convicted Figueroa even if the

certificate had not been admitted. Its admission in evidence was harmless error

beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967);

United States v. Norwood, 603 F.3d 1063, 1068–69 (9th Cir. 2010). The certificate

was corroborated by and cumulative of other evidence. See United States v.

Orozco-Acosta, 607 F.3d 1156, 1161–62 (9th Cir. 2010). As for the A-file

documents, we conclude that they were not testimonial and that their admission in

evidence did not violate the Confrontation Clause. See, e.g., id. at 1163–64


                                         -2-
(warrant of removal was not testimonial because it was not made in anticipation of

litigation); United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir. 2006)

(routine, objective cataloging of an unambiguous factual matter was not

testimonial).

      Figueroa argues that the documents and certain individual statements therein

were inadmissible hearsay. See Fed. R. Evid. 802. But the district court did not

abuse its discretion by admitting this evidence under the public records exception

to the hearsay rule. See Fed. R. Evid. 803(8). See also, e.g., United States v.

Hernandez-Herrera, 273 F.3d 1213, 1217–18 (9th Cir. 2001) (deportation

documents were public records admissible to prove alienage); United States v.

Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980) (notation of deportation was a

“ministerial, objective observation”).

      Figueroa contends that the district court erred by not granting a downward

adjustment for acceptance of responsibility. See U.S.S.G. § 3E1.1. We conclude

that the district court did not err in its interpretation of the law, and we also

conclude that the district court did not commit clear error in finding that Figueroa

had not timely accepted responsibility. See, e.g., United States v. Cantrell, 433

F.3d 1269, 1284–85 (9th Cir. 2006) (district court’s decision about acceptance of

responsibility is a factual finding reviewed for clear error); United States v.


                                           -3-
Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004) (district court’s decision

in these circumstances is “virtually unassailable”).

      Figueroa further claims that 8 U.S.C. § 1326(b) is unconstitutional. This

challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

226–27 (1998). Figueroa’s claim that Almendarez-Torres has been implicitly

overruled is meritless. It remains binding precedent unless and until it is overruled

by the United States Supreme Court. E.g., Hohn v. United States, 524 U.S. 236,

252–53 (1998); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th

Cir. 2007). We may not by anticipation overrule a Supreme Court precedent on

grounds it has been undermined by later precedent. See Agostini v. Felton, 521

U.S. 203, 237 (1997).

      AFFIRMED.




                                          -4-
