            Case: 15-10706   Date Filed: 04/15/2016   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10706
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:13-cr-00129-SPC-CM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                       versus

WILLIAM CARDONA-CASTILLO,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 15, 2016)

Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      William Cardona-Castillo appeals his conviction and 71-month prison

sentence for one count of illegal reentry after being convicted of an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Cardona-Castillo advances

four arguments on appeal. First, he argues that the district court erred by denying

his motion to suppress all evidence obtained as a result of an illegal stop and show-

up. Second, he argues that the district court abused its discretion by overruling

five of his evidentiary objections at trial. Third, he argues that the district court

erred by denying his motion for judgment of acquittal. Finally, he argues that the

district court erred by applying two additional points to his criminal history based

on its finding that he was on probation at the time of the offense. For the reasons

that follow, we affirm.

                                           I.

      Cardona-Castillo first argues that the district court erred by denying his

motion to suppress all evidence from a stop and show-up. He alleges that the

officers lacked reasonable suspicion to detain him because his detention was based

on an overly broad and vague description of a suspect and that the show-up was

unduly suggestive and prejudicial. A motion to suppress evidence presents a

mixed question of law and fact. United States v. Lewis, 674 F.3d 1298, 1302 (11th

Cir. 2012). We review the district court’s rulings of law de novo and its findings




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of fact for clear error. Id. at 1302–03. We construe all facts in the light most

favorable to the party that prevailed below. Id. at 1303.

      The Supreme Court has held that the exclusionary rule does not apply in

civil deportation proceedings where the evidence of an individual’s unlawful

presence in the United States was derived from an unlawful arrest. INS v. Lopez-

Mendoza, 468 U.S. 1032, 1034, 104 S. Ct. 3479, 3481 (1984). The Court found

that “application of the exclusionary rule in [these] cases . . . would compel the

courts to release from custody persons who would then immediately resume their

commission of a crime through their continuing, unlawful presence in this

country.” Id. at 1050, 104 S. Ct. at 3489. Our Court has expanded this holding to

criminal proceedings when the evidence sought to be suppressed is “offered in a

criminal prosecution only to prove who the defendant is.” United States v. Farias-

Gonzalez, 556 F.3d 1181, 1182 (11th Cir. 2009). This evidence of identity

includes a defendant’s fingerprints and alien file. Id. at 1189.

      The district court did not err by denying Cardona-Castillo’s motion to

suppress his fingerprints and alien file. The government used Cardona-Castillo’s

fingerprints and alien file for the sole purpose of establishing his identity. Even if

they were obtained as the result of an unlawful search or seizure, the fingerprints

and alien file were not due to be suppressed when used only to prove Cardona-

Castillo’s identity. See id.


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                                               II.

      Cardona-Castillo also argues that the district court abused its discretion by

overruling five of his evidentiary objections at trial. He claims that the district

court should not have allowed the admission of: (1) a sworn statement made by

Cardona-Castillo in January 2011 regarding his original means of entry into the

United States, (2) his alien file, (3) a warrant of deportation, (4) a “warning to alien

removed or deported” notice, and (5) a flight manifest to Cardona-Castillo’s home

country showing his name on the passenger list. Cardona-Castillo alleges that the

sworn statement was made in violation of his Miranda1 rights, and that the various

pieces of evidence were unfairly prejudicial or improperly authenticated under

Federal Rules of Evidence 403 and 901.

                                               A.

      We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). “We will

reverse a district court’s evidentiary rulings only if the resulting error affected the

defendant’s substantial rights.” United States v. Dodds, 347 F.3d 893, 897 (11th

Cir. 2003).

      The government cannot introduce statements stemming from a custodial

interrogation unless certain procedural protections were provided. Miranda v.


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). Custodial interrogation

“mean[s] questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant

way.” Id. “[A] term of imprisonment, without more, is not enough to constitute

Miranda custody.” Howes v. Fields, 565 U.S. ___, ___, 132 S. Ct. 1181, 1191

(2012). In deciding whether a prisoner is in custody for Miranda purposes, we

“focus on all of the features of the interrogation,” which “include the language that

is used in summoning the prisoner to the interview and the manner in which the

interrogation is conducted.” Id. at 1192.

      Under Federal Rule of Evidence 901, in order to “authenticat[e] or identify[]

an item of evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).

Public records may be authenticated by showing that the document “was recorded

or filed in a public office as authorized by law” or was “from the office where

items of this kind are kept.” Id. 901(b)(7).

      Under Federal Rule of Evidence 403, “[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “The district court

possesses broad discretion to admit evidence if it has any tendency to prove or


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disprove a fact in issue,” but “the court’s discretion to exclude evidence under Rule

403 is limited.” United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th

Cir. 1990). “[T]he application of Rule 403 must be cautious and sparing.” United

States v. Mills, 704 F.2d 1553, 1560 (11th Cir. 1983) (quotation omitted).

                                         B.

      The district court did not abuse its discretion in any of the five evidentiary

rulings Cardona-Castillo appeals. First, Cardona-Castillo’s sworn statement was

not made in violation of his Miranda rights. Though he was in prison when he

made the statement, Cardona-Castillo did not assert that he was in custody for the

purposes of Miranda and the fact of his imprisonment does not establish custody

on its own, without evidence that other features of the interrogation demonstrated

custody. See Howes, 565 U.S. at ___, 132 S. Ct. at 1191–92. Further, the

statement was not needlessly cumulative under Rule 403 simply because another

individual’s testimony could have proved the same fact. The “warning to alien

removed or deported” document was also not unfairly prejudicial under Rule 403

because the document had probative value in establishing the fact of Cardona-

Castillo’s deportation.

      Neither did the district court err in admitting Cardona-Castillo’s alien file,

warrant of deportation, and flight manifest. These documents were properly

authenticated under Rule 901 because they were “from the office where items of


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[these] kind[s] are kept,” with the U.S. Immigration and Customs Enforcement

office. Fed. R. Evid. 901(b)(7). The documents were not unfairly prejudicial

under Rule 403 because they had probative value in establishing the fact of

Cardona-Castillo’s deportation. The district court did not abuse its discretion in

admitting the evidence.

                                          III.

      Cardona-Castillo next argues that the district court erred by denying his

motion for judgment of acquittal because the government did not present sufficient

evidence of his prior deportation. To prove the offense of unlawful entry after

deportation, the government must show that (1) the alien had been deported, (2) he

entered, attempted to enter, or was found in the United States after deportation, and

(3) he had not obtained permission to reenter. 8 U.S.C. § 1326(a).

      We review both the denial of a motion for acquittal and the sufficiency of

the evidence supporting a conviction de novo. United States v. Hernandez, 433

F.3d 1328, 1332 (11th Cir. 2005). We draw all factual and credibility inferences in

favor of the government. Id. A defendant may move the court to enter a judgment

of acquittal after the government closes its evidence, and the court must acquit if

“the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).

Evidence is sufficient to support a conviction if “a reasonable trier of fact,

choosing among reasonable interpretations of the evidence, could find guilt beyond


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a reasonable doubt.” United States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir.

2005) (per curiam) (quotation omitted). The evidence need not exclude every

reasonable hypothesis of innocence, because the jury may choose between

reasonable constructions of the evidence and is free to disbelieve the testimony of

witnesses. See Hernandez, 433 F.3d at 1334–35.

      The district court did not err in denying the motion for judgment of acquittal.

The alien file, warrant of deportation, “warning to alien removed or deported,” and

flight manifest all support the finding that Cardona-Castillo had been on a

repatriation flight to Honduras in 2011. This was sufficient evidence that Cardona-

Castillo had been deported.

                                         IV.

      Cardona-Castillo finally argues that the district court erred by adding two

points to his criminal history based on a finding that he was on probation at the

time of the offense. He specifically alleges that he lacked knowledge that he was

ordered to serve two years of probation after his term of imprisonment and that the

two-point increase was improper because a separate case charging him with

violation of probation had been dismissed by the state court and no decision was

made about whether that dismissal was nunc pro tunc.

      “We review findings of fact for clear error and application of the sentencing

guidelines de novo.” United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009).


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A factual finding is clearly erroneous only if we are “left with the definite and firm

conviction that a mistake has been committed.” Id. (quotation omitted).

      Under the Sentencing Guidelines, two points are added to the defendant’s

criminal history “if the defendant committed the instant offense while under any

criminal justice sentence, including probation.” USSG § 4A1.1(d). Active

supervision is not required for a sentence to be considered a criminal justice

sentence under § 4A1.1(d), and a defendant’s subjective understanding that his

probation had terminated upon deportation is not relevant to this two-point

enhancement. United States v. Phillips, 413 F.3d 1288, 1292 (11th Cir. 2005) (per

curiam).

      The district court correctly added two points to Cardona-Castillo’s criminal

history score. Cardona-Castillo’s Order of Probation indicates that his sentence

included a two-year term of probation after he completed his initial term of

incarceration. He was still serving that probation term at the time of this offense.

Further, when the state court terminated Cardona-Castillo’s warrant for a violation

of his probation in a separate suit, there is no indication that the court made this

dismissal nunc pro tunc such that it would impact the established duration of

Cardona-Castillo’s term of probation.

      AFFIRMED.




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