     Case: 14-20116       Document: 00513114787         Page: 1     Date Filed: 07/14/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                       No. 14-20116                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    July 14, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

FERNANDO CASTREJON-ESTEBAN, also known as Fernando Esteba
Castrejon, also known as Esteban Fernando-Castrejon, also known as
Fernandro Castrejon-Esteban, also known as Fernando E. Castrejon, also
known as Fernando Esteban Castrejon, also known as Fernando Castrejon
Esteban,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CR-623


Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
       After a one-day jury trial, Fernando Castrejon-Esteban was convicted of
violating 8 U.S.C. § 1326, which prohibits a deported alien from reentering the
United States without having obtained consent from the Secretary of the U.S.
Department of Homeland Security (“DHS”) to reapply for admission.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                       No. 14-20116
Castrejon-Esteban proffered two provisions of the Texas Administrative Code,
which he averred provided circumstantial evidence that he had the requisite
DHS consent. The district court excluded that evidence as irrelevant.
       On appeal, Castrejon-Esteban argues that the district court abused its
discretion when it excluded the text of those Texas provisions from the jury.
We affirm.

                                           I.

       At trial, Castrejon-Esteban challenged only one element of the
government’s case: whether he had obtained DHS’s express consent to reenter
the United States after his deportation. 1 See United States v. Jara-Favela, 686
F.3d 289, 302 (5th Cir. 2012) (listing the elements necessary to convict a
defendant of violating § 1326); United States v. Morales-Palacios, 369 F.3d 442,
446 (5th Cir. 2004) (noting that the consent must be “express”). 2
       Respecting this element, the government’s evidence that DHS consent to
reenter was lacking was three-fold: First, the arresting deportation officer
testified that, before he arrested Castrejon-Esteban, he searched Castrejon-
Esteban’s alien file and three DHS immigration databases for any record
showing that Castrejon-Esteban had DHS consent to reenter the United
States. The officer found no record of consent in any of these sources. Second,
the records manager for DHS’s Citizenship and Immigration Services division
testified that, after Castrejon-Esteban’s arrest, he searched multiple DHS



       1 Castrejon-Esteban was charged with reentering the United States without obtaining
the DHS’s consent to reapply for admission. See 8 U.S.C. § 1326. To avoid this twist of words,
and favoring readability over precision, we simply refer to this as “DHS consent” and “consent
to reenter.”
       2 Because Castrejon-Esteban reentered the United States in 2010, he was required to

obtain consent to reapply for admission from the Secretary of the DHS. See 6 U.S.C. §§ 202,
251 (amending 8 U.S.C. § 1326(a) by transferring the authority to grant consent to the
Secretary of the DHS).
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                                 No. 14-20116
databases for any record of DHS consent, finding none. Finally, after his arrest
and after voluntarily waiving his right to remain silent, Castrejon-Esteban
admitted that he entered the Unites States in July 2010 (seven months after
his November 2009 deportation). He also admitted that he entered the country
without permission and that he did not apply for permission to reenter after
his 2009 deportation.
      The government also produced evidence that Castrejon-Esteban received
the following warnings during his 2009 deportation: “After your removal has
been effected, you must request and obtain permission from the Secretary of
Homeland Security to reapply for admission to the United States. . . . [I]t is a
crime for an alien who has been removed from the United States to enter, or
attempt to enter, or be found in the United States without the Secretary of
Homeland Security’s express consent.”
      Through defense cross-examination of witnesses, Castrejon-Esteban
established that DHS sometimes loses portions of the paper alien files,
suggesting that the government’s negative search of its files was unreliable.
The jury also learned that, after his 2010 reentry, Castrejon-Esteban obtained
a Texas driver’s license.
      Castrejon-Esteban sought further to establish DHS consent. Because
Castrejon-Esteban had a Texas-issued driver’s license, he sought to introduce
the text of two provisions of the Texas Administrative Code to create doubt as
to the government’s contention that he lacked DHS consent.            One such
provision of the Texas code states that an applicant for a driver’s license must
provide “information relating to [his] United States citizenship” and must
“provide [his] country of residence.” See 37 Tex. Admin. Code § 15.46 (2011).
The other provision states that applicants who are non-citizens and non-
permanent residents “must present valid documentation issued by the United
States . . . that shows lawful temporary admission to the United States.” Id.
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§ 15.171 (requiring the documentation to be issued by the Department of
Justice, Department of State, Department of Homeland Security, Immigration
and Naturalization Service, Bureau of Citizenship and Immigration Services,
or any successor agency of these agencies). He argues, therefore, that his
possession of a Texas driver’s license tends to show that he lawfully was
present in the United States, i.e., that he was present with the consent of the
DHS. These Texas code provisions, however, require the applicant only to
provide information and documentation; they do not require state officials to
do anything with the information, including verifying the documents’
authenticity or veracity.
      The district court precluded Castrejon-Esteban from introducing into
evidence the text of these Texas provisions as irrelevant. See Fed. R. Evid. 401,
402. In denying Castrejon-Esteban’s proffer, the district court stated that
Texas is not involved in immigration matters and does not participate in DHS’s
decisions to grant or deny consent to reenter the United States, so such
evidence is irrelevant and confuses the issue. In reaching its conclusion, the
district   court   noted    that   Castrejon-Esteban’s       proffer   was    that    the
documentation he used to obtain the driver’s license was his name and social
security number and, under the Texas provisions, his social security card
“should have been able to get [him] a driver’s license.” 3
      On appeal, Castrejon-Esteban              argues that      the   district court’s
evidentiary ruling constitutes reversible error. Specifically, he contends that
the text of the two Texas provisions was relevant as to whether he had obtained
the requisite consent from the DHS to reenter the United States, because,


      3  Castrejon-Esteban obtained a social security number decades ago, when he was
present in the United States lawfully. After that time, he was convicted of a felony and
subsequently deported in 1994. Because Castrejon-Esteban has repeatedly returned to the
United States without permission, the 1994 order of removal has been reinstated five times
(not including this case).
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                                 No. 14-20116
under the proffered Texas provisions, a driver’s license applicant must present
proof of lawful status in the United States; or restated, Castrejon-Esteban
argues that possession of a driver’s license suggests that he had the requisite
DHS consent.

                                    II.

      We review the exclusion of evidence for abuse of discretion, “providing
the trial court wide discretion in assessing the relevance and prejudicial effect
of evidence.” United States v. Alaniz, 726 F.3d 586, 606 (5th Cir. 2013). If we
find an abuse of discretion, we next review the error under the harmless error
doctrine, affirming the judgment unless the ruling affected the substantial
rights of the complaining party. United States v. Harms, 442 F.3d 367, 377
(5th Cir. 2006).
      The district court did not abuse its discretion by excluding the text of the
Texas Administrative Code sections. The alleged logical connection of these
driver’s-license provisions to the contested element of the illegal-reentry
offense seems to be as follows: (1) Castrejon-Esteban obtained a Texas driver’s
license. (2) Therefore, he must have satisfied the requirements in the proffered
code sections; that is, Castrejon-Esteban must have stated that he resided in
Texas, see § 15.56, and he must have presented “valid documentation issued
by the United States” that showed he had lawful temporary admission to the
United States, see id. § 15.171. (3) Because he must have presented documents
to the Texas DMV showing his lawful temporary admission, Castrejon-Esteban
must have requested the DHS’s consent to reenter the United States, and the
DHS must have consented to that request. (4) Even though there is no record
of Castrejon-Esteban’s request or the DHS’s consent, such consent could have
been granted but the record of it probably has been lost because the DHS has,
in the past, lost papers in other aliens’ files. (5) Therefore, a jury could find
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                                       No. 14-20116
that Castrejon-Esteban had DHS consent to reenter notwithstanding that
neither DHS nor Castrejon-Esteban has any record of that consent.
       Given the tenuous links between and among these “logical” steps, we find
no abuse of discretion in the district court’s conclusion that the probative value
of the Texas-code evidence is lacking. For the jury reasonably to draw the
inference of consent, additional necessary facts are missing.                     Castrejon-
Esteban only identifies his social security number as a document he furnished
to the Texas DMV, a document that he obtained when he was lawfully present
and which he obtained before his 1993 felony conviction and before his 1994
deportation. Use of his decades-old social security card is probative of no fact
relevant to the instant dispute; it does not make it more or less probable that,
after his 2009 deportation, he obtained DHS consent to reenter the United
States. 4 The district court plainly did not abuse its discretion in excluding the
proffered evidence as irrelevant. See Fed R. Evid. 401(a) (stating that relevant



       4 Castrejon-Esteban’s proffer failed to provide any details about his application for a
license other than his use of a decades-old social security number. The proffer did not include
any evidence regarding (1) the documentation or statements he provided to obtain his driver’s
license, (2) the truthfulness of that information, or (3) whether the documents he supplied
were obtained from DHS (as opposed to some other agency or entity). His proffer also failed
to mention which provision of the Texas code was used to obtain his license. See 37 Tex.
Admin. Code § 15.171(a) (2011) (providing various expiration dates for driver’s licenses
depending on the immigration status claimed by the applicant). Critically, his proffer did
not include evidence that he ever sought the DHS’s consent or that the State of Texas verified
(or even cared) that Castrejon-Esteban had the DHS’s express consent to reenter. His proffer
also failed to include a hint which files specifically related to his alien status were missing
from his hardcopy alien file or the DHS databases. Because the record is devoid of any fact(s)
that links the proffered Texas code provisions with the “missing” DHS consent paperwork
required to challenge the government’s case, Castrejon-Esteban’s evidence leaves us with
speculation, not relevant evidence. Accord Holmes v. South Carolina, 547 U.S. 319, 326 (U.S.
2006) (noting that the Constitution permits judges to exclude evidence that is “only
marginally relevant”); id. at 327 (“[E]vidence [of third-party guilt] may be excluded where it
does not sufficiently connect the other person to the crime, as, for example, where the
evidence is speculative or remote, or does not tend to prove or disprove a material fact in
issue at the defendant’s trial.”); United States v. Hernandez-Hernandez, 519 F.3d 1236, 1241
(10th Cir. 2008) (“Relevant evidence does not include the suggestion of speculative
possibilities.”).
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                                       No. 14-20116
evidence must have a “tendency to make a fact more or less probable than it
would be without the evidence”). 5

                                         III.

       The district court acted within its discretion when it excluded Castrejon-
Esteban’s irrelevant evidence. Castrejon-Esteban’s conviction is, therefore,
                                                                              AFFIRMED.




       Because we find no abuse of discretion in the district court’s relevance determination,
       5

we need not reach the government’s alternative arguments, under Rule 403 and the
harmless-error standard of review, for affirming Castrejon-Esteban’s conviction.
                                                7
