                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                                             No. 05-50136
                v.
JOSE ANTONIO TORRES-HERNANDEZ,                D.C. No.
                                           CR-04-02060-LAB
a.k.a. Roberto Martinez-
                                              OPINION
Hernandez,
              Defendant-Appellant.
                                       
        Appeal from the United States District Court
          for the Southern District of California
         Larry A. Burns, District Judge, Presiding

                  Argued and Submitted
          February 7, 2006—Pasadena, California

                     Filed May 8, 2006

Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,
                     Circuit Judges.

                   Opinion by Judge Bea




                            5173
            UNITED STATES v. TORRES-HERNANDEZ        5175


                       COUNSEL

Zandra L. Lopez, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

Carol C. Lam, Roger W. Haines, Jr. & David P. Curnow,
United States Attorney, San Diego, California, for the
plaintiff-appellee.
5176          UNITED STATES v. TORRES-HERNANDEZ
                          OPINION

BEA, Circuit Judge:

   Today we decide a district court need not and may not take
into account Hispanics who are ineligible for jury service to
determine whether Hispanics are underrepresented on grand
jury venires. To establish a prima facie violation of the Sixth
Amendment’s guarantee that grand juries reflect a fair cross-
section of the community, a defendant must prove in part
“that the representation of [an allegedly underrepresented]
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community.” Duren v. Missouri, 439 U.S. 357, 364 (1979).
We hold that, to determine whether Hispanics are underrepre-
sented to an unconstitutional degree in venires, a district court
must rely on that evidence which most accurately reflects the
judicial district’s actual percentage of jury-eligible Hispanics.
Because the district court here used the most accurate data
presented to it by the parties—data that excluded segments of
the Hispanic population ineligible for jury service—we affirm
Torres-Hernandez’s conviction and sentence.

I.   Background

  On February 7, 2005, after a jury trial, the district court
sentenced Jose Antonio Torres-Hernandez to fifty-one
months’ imprisonment and three years’ supervised release for
being a deported alien within the United States, in violation
of 8 U.S.C. § 1326. Torres-Hernandez had previously been
deported on October 5, 1996.

   Before his trial, Torres-Hernandez moved to dismiss his
indictment. He argued that, in violation of the Sixth Amend-
ment, the systematic exclusion of Hispanics in Southern Dis-
trict of California grand jury venires had resulted in a grand
jury that did not represent a fair cross-section of the commu-
nity.
                 UNITED STATES v. TORRES-HERNANDEZ                     5177
   To support his motion, Torres-Hernandez presented the
expert opinion and statistical analysis of Dr. John R. Weeks.
Weeks prepared evidence that the overall population of the
Southern District of California, composed of San Diego and
Imperial Counties, is 28.9 percent Hispanic. Weeks also
found that, of individuals in the district “age eligible” for jury
service, 24.8 percent were Hispanic. Finally, Weeks calcu-
lated that “jury-eligible” Hispanic individuals comprised 16.1
percent of the district’s jury-eligible population.1

   Weeks compared this data to the percentage of Hispanics
on Torres-Hernandez’s grand jury venire—14.1 percent—to
determine whether Hispanics were fairly represented. Weeks
subtracted the percentage of Hispanics on Torres-Hernandez’s
grand jury venire from the general, age-eligible, and jury-
eligible percentages described above to arrive at various “ab-
solute disparities”: 14.8, 10.7, and 2.0 percentage points respec-
tively.2 Weeks then divided the absolute disparity
corresponding to the jury-eligible Hispanic population (2.0
percent) by the percentage of jury-eligible individuals who are
Hispanic (16.1 percent) to arrive at a “relative disparity” of
12.1 percent.3
  1
     To be “jury eligible,” an individual must be a United States citizen, at
least eighteen years old, have resided for at least one year within the judi-
cial district, and be able to speak English. 28 U.S.C. § 1865(b)(1) & (3).
The individual must also be able to read, write, and understand the English
language with a degree of proficiency sufficient to fill out satisfactorily
the juror qualification form. Id. § 1865(b)(2).
   2
     “We determine absolute disparity by taking the percentage of the group
at issue in the total population and subtracting from it the percentage of
that group that is represented on the master jury wheel.” United States v.
Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir. 1989).
   3
     “Comparative disparity is determined by taking the absolute disparity
percentage and dividing that number by the percentage of the group in the
total population.” Sanchez-Lopez, 879 F.2d at 548. Comparative disparity
is synonymous with relative disparity.
   The percentages in this opinion are rounded to the nearest tenth of a
percentage point. When the relevant percentages are not rounded, the rela-
tive disparity of 12.1 percent is the correct quotient.
5178                  UNITED STATES v. TORRES-HERNANDEZ
   After Torres-Hernandez was convicted for being a deported
alien inside the country,4 the district court denied his motion
to dismiss his indictment because it ruled that Hispanics were
fairly represented on his grand jury venire.5 First, the district
court found that the Ninth Circuit favors the absolute disparity
test, not the relative disparity test, to measure the representa-
tiveness of a distinctive group on jury venires. Second, the
district court implicitly found that, to determine whether His-
panics were underrepresented on Torres-Hernandez’s grand
jury, it must compare the percentage of Hispanics on Torres-
Hernandez’s grand jury to the percentage of jury-eligible His-
panics in the district. Because the absolute disparity between
the percentage of jury-eligible Hispanics and the percentage
of Hispanics on Torres-Hernandez’s grand jury venire was
only 2.0 percentage points, the district court held that Torres-
Hernandez did not establish a prima facie violation of the
Sixth Amendment’s fair cross-section requirement.

      Torres-Hernandez timely appealed to this court.

II.        Analysis

      A.     Sixth Amendment Fair Cross-Section Claim

  We review de novo a Sixth Amendment challenge to the
composition of a grand jury. See United States v. Rodriguez-
Lara, 421 F.3d 932, 939 (9th Cir. 2005).
  4
     Although Torres-Hernandez had filed the motion to dismiss his indict-
ment on account of the purported Sixth Amendment violation before his
trial, the district judge did not rule on the motion until after Torres-
Hernandez had been convicted.
   5
     Before trial, the district court denied Torres-Hernandez’s motion to
suppress the admission of a certificate of nonexistence of record (CNR)—
a document establishing that an alien has not been granted permission to
enter the country—as a violation of the Sixth Amendment’s Confrontation
Clause under Crawford v. Washington, 541 U.S. 36 (2004). This ruling
was correct. See United States v. Cervantes-Flores, 421 F.3d 825, 834 (9th
Cir. 2005) (per curiam).
                UNITED STATES v. TORRES-HERNANDEZ                     5179
   [1] The Supreme Court in Duren established that grand
juries do not represent a fair cross-section of the community
when the jury-selection process systematically excludes a dis-
tinctive group of the jury-eligible population. 439 U.S. at 363-
64.

      In order to establish a prima facie violation of the
      fair-cross-section requirement, the defendant must
      show (1) that the group alleged to be excluded is a
      “distinctive” group in the community; (2) that the
      representation of this group in venires from which
      juries are selected is not fair and reasonable in rela-
      tion to the number of such persons in the commu-
      nity; and (3) that this underrepresentation is due to
      systematic exclusion of the group in the jury-
      selection process.

Id. at 364.6

      The second prong of the Duren test requires proof,
      typically statistical data, that the jury pool does not
      adequately represent the distinctive group in relation
      to the number of such persons in the community. We
      have been confronted with this issue before and have
      favored the “absolute disparity” test for measuring
      the representativeness of a distinctive group in a jury
      pool.

United States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996)
(internal citation omitted).
  6
    Torres-Hernandez satisfies Duren’s first element because Hispanics
constitute a distinctive group in the community. See United States v.
Esquivel, 88 F.3d 722, 726 (9th Cir. 1996). The district court did not reach
Duren’s third element because it found that Torres-Hernandez failed to
satisfy the second element. Therefore, only Duren’s second element is at
issue here.
5180             UNITED STATES v. TORRES-HERNANDEZ
   [2] Our precedents agree that to prove Hispanics are under-
represented in a given district’s jury pools, the ultimate basis
for comparison is the district’s actual percentage of jury eligi-
ble Hispanics. See id. at 727 (relying on the government’s sta-
tistical data, which excluded minors and non-citizens, to find
that the absolute disparity was inadequate to satisfy Duren’s
second element, because such data more accurately reflected
the actual percentage of jury-eligible Hispanics than did the
defendant’s general population data); Rodriguez-Lara, 421
F.3d at 942 (reiterating Esquivel’s preference for data that
excludes jury-ineligible populations, as opposed to general
population data, because the former is a “refined set of data
for the purpose of the defendant’s prima facie case under
Duren” (emphasis added)).

   [3] At the same time, our cases conflict as to whether a
defendant who presents only evidence that includes non-jury-
eligible segments of the population may ever satisfy a prima
facie case. In United States v. Artero, 121 F.3d 1256 (9th Cir.
1997), we held that a defendant must proffer jury-eligible sta-
tistical evidence of Hispanics to compare against the percent-
age of Hispanics on a jury venire. Id. at 1261 (“The right
question is whether Hispanics eligible to serve on federal
juries were unreasonably underrepresented because of system-
atic exclusion.”). By contrast, we later held in Rodriguez-Lara
that a defendant may establish that jury-eligible Hispanics are
underrepresented on a jury venire by proffering evidence of
a less precise approximation for the percentage of jury-
eligible Hispanics in a district—the overall percentage of His-
panics in the district or, if available, the percentage of age-
eligible Hispanics in the district.7 421 F.3d at 941-44.
Rodriguez-Lara recognized its conflict with Artero, but sim-
ply dismissed Artero as incorrectly decided. See id. at 942-43.
   7
     Being “age-eligible” means being eighteen years of age or older, which
is also a necessary element for being “jury-eligible.” See Rodriguez-Lara,
421 F.3d at 941-42. It does not include the statutory requisites of U.S. citi-
zenship and ability to use English, at least sufficiently to fill out the jury
qualification form. See supra note 1.
              UNITED STATES v. TORRES-HERNANDEZ            5181
   [4] We need not make a sua sponte en banc call in this case
to resolve the intra-circuit conflict because the district court
here had jury-eligible statistical data that satisfied both the
higher evidentiary burden of Artero and, necessarily, the
lesser burden of Rodriguez-Lara. See United States v. White-
head, 896 F.2d 432, 434 (9th Cir. 1990) (reasoning that it
need not resolve an intra-circuit conflict regarding the appli-
cable standard of review because the district court did not err
even under the stricter, de novo standard).

   [5] We resolve this case under the principle explained in
Esquivel: When presented with various types of data to deter-
mine whether Hispanics are underrepresented on grand jury
venires, a court must rely on the statistical data that best
approximates the percentage of jury-eligible Hispanics in the
district.

   In Esquivel, we did not need to decide whether the defen-
dant had established a prima facie case with general popula-
tion data because we had before us data that better
approximated the actual percentage of jury-eligible Hispanics
in the district. 88 F.3d at 727. The defendant proffered evi-
dence that, in 1993, 24.2 percent of the Southern District of
California’s population was Hispanic. Id. at 726. Because the
defendant’s master wheel was composed of 9.7 percent His-
panics, the defendant claimed there existed an absolute dis-
parity of 14.5 percentage points. Id. The government rebutted
this evidentiary showing by requesting that we take judicial
notice of 1990 census data showing that Hispanic U.S. citi-
zens over eighteen years old comprised only 14.6 percent of
the relevant population, which led to only a 4.9 percentage
points absolute disparity. Id. at 726-27. We looked to the gov-
ernment’s statistical evidence because it better approximated
the relevant Hispanic population—those individuals eligible
to serve on federal juries. See id. at 727 (calling the defen-
dant’s computation of absolute disparity, calculated using the
total population of Hispanics, “inaccurate and overestimated”
because “the absolute disparity between Hispanics in the pop-
5182              UNITED STATES v. TORRES-HERNANDEZ
ulation and the jury wheel is only 4.9 percent when readily
available data relating to jury eligibility is taken into
account.” (emphasis added)). The government’s evidence
established that the absolute disparity between jury-eligible
Hispanics and Hispanics on the defendant’s jury venire was
constitutionally insignificant. Id.

   [6] Just as we did in Esquivel, in deciding the absolute dis-
parity of Hispanics was constitutionally insignificant in the
present case, the district court here relied on the most refined
data it had. Although Torres-Hernandez’s witness Weeks pre-
pared evidence that Hispanics compose 28.9 percent of the
general population and 24.8 percent of the age-eligible popu-
lation, he also prepared evidence that only 16.1 percent of the
jury-eligible population was Hispanic.8, 9 The district court
  8
     That Torres-Hernandez, rather than the government, proffered the most
refined set of data is unimportant. We are mindful that future defendants
may decide to withhold unfavorable jury-eligible data so as to not trump
their own general population or age-eligible data. As mentioned above, it
is not clear at this time whether less refined data can satisfy a prima facie
case when more refined data is available, but not proffered. We reiterate
our admonition in Esquivel that a defendant may not “selectively include
data which supports her position, while ignoring census data which . . .
also bears on the issue of disparity.” Esquivel, 88 F.3d at 727 n.2. Thus,
it would be objectionable for a defendant to submit age-eligible data if the
data source also included other jury-eligible factors such as citizenship or
English proficiency. Of course, regardless whether one party must proffer
the more refined data, the opponent may offer such data, as did the gov-
ernment, in Esquivel. See id. at 726-27.
   9
     This court in Artero cited a possible reason for the substantial drop of
Hispanics in the jury-eligible population of the Southern District of Cali-
fornia:
      The able district judges in the Southern District were cognizant
      that the district, consisting of two counties on the border with
      Mexico, would likely have many Hispanic residents who had not
      yet attained citizenship or English proficiency, because they had
      only recently come to the United States to seek better work to
      support themselves and their families. As a matter of common
      sense, the percentage of Hispanics eligible for federal jury service
                 UNITED STATES v. TORRES-HERNANDEZ                      5183
correctly found that a 2.0 percentage points absolute disparity
between the percentage of jury-eligible Hispanics and the per-
centage of Hispanics on Torres-Hernandez’s grand jury venire
was constitutionally insignificant. See id. (holding that a 4.9
percentage points absolute disparity was constitutionally
insignificant). Therefore, the district court correctly denied
Torres-Hernandez’s motion to dismiss his indictment based
on a violation of the Sixth Amendment’s fair cross-section
requirement.

  B.    Other Constitutional Claims

   Torres-Hernandez’s other claims clearly fail under control-
ling precedent.

  Torres-Hernandez claims that a CNR was “testimonial”
within the meaning of Crawford and its admission into evi-
dence therefore violated his Sixth Amendment Confrontation

    in those two counties was likely to be lower than the ratio for the
    general population.
121 F.3d at 1261.
   Statistical data that excludes populations such as under-age, non-citizen,
and non-English-speaking Hispanics will tend more accurately to approxi-
mate the actual percentage of jury-eligible Hispanics than less refined, or
general population, data. However, it is conceivable that a particular set
of jury-eligible data could have such a large margin of error, due to an
expert’s flawed methodology or other factors, that other data before the
court would more accurately reflect the actual percentage of jury-eligible
Hispanics in a district. If such a case were to arise, a district court would
have to weigh experts’ competing evidence, including the experts’ qualifi-
cations, biases, motives, methodologies, and all other elements used to
weigh expert testimony, to determine which data set was most accurate.
We would review a district court’s finding for clear error. Cf. Paige v.
California, 291 F.3d 1141, 1144 n.3 (9th Cir. 2002) (“We review the dis-
trict court’s conclusion as to a prima facie case of disparate impact [under
Title VII] de novo but review the underlying findings of fact for clear
error. In particular, we give deference to a district court’s findings regard-
ing statistical evidence.” (internal citation omitted)).
5184          UNITED STATES v. TORRES-HERNANDEZ
Clause rights. However, we recently rejected just such a
claim. See United States v. Cervantes-Flores, 421 F.3d 825,
834 (9th Cir. 2005) (per curiam).

   The district court also did not violate Torres-Hernandez’s
Sixth Amendment rights by sentencing him above the applica-
ble statutory maximum based on its finding of a prior convic-
tion, without a finding of such prior conviction by a jury
beyond a reasonable doubt. Almendarez-Torres v. United
States, 523 U.S. 224 (1998), is controlling precedent. See
United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir.
2005).

   Finally, Torres-Hernandez argues that the district court vio-
lated Fifth Amendment retroactivity principles by considering
the Sentencing Guidelines advisory, pursuant to the remedial
holding in United States v. Booker, 125 S. Ct. 738 (2005).
Such an argument has no merit. See United States v. Dupas,
417 F.3d 1064, 1066-69 (9th Cir. 2005).

III.   Conclusion

   We AFFIRM Torres-Hernandez’s conviction and sentence.
