                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0351p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                  X
                             Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                        No. 04-3954
          v.
                                                   ,
                                                    >
 GILDARDO NAVARRO-DIAZ,                            -
                          Defendant-Appellant. -
                                                  N
                    Appeal from the United States District Court
                    for the Southern District of Ohio at Dayton.
                   No. 03-00018—Walter H. Rice, District Judge.
                                            Argued: June 21, 2005,
                                   Decided and Filed: August 18, 2005
             Before: NELSON and GILMAN, Circuit Judges; DONALD, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: John H. Rion, RION, RION & RION, Dayton, Ohio, for Appellant. Laura I.
Clemmens, ASSISTANT UNITED STATES ATTORNEY, Dayton, Ohio, for Appellee.
ON BRIEF: John H. Rion, RION, RION & RION, Dayton, Ohio, for Appellant. Laura I.
Clemmens, ASSISTANT UNITED STATES ATTORNEY, Dayton, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        RONALD LEE GILMAN, Circuit Judge. Gildardo Navarro-Diaz, a citizen of Mexico, was
arrested by the police when he was found in a hotel room with several other men who were armed
and in possession of marijuana. After the district court denied Navarro-Diaz’s motion to suppress
his identity, he pled guilty to being an alien who had previously been deported and who was present
in the United States without the permission of the Attorney General, in violation of 8 U.S.C. § 1326.
He was sentenced to 57 months in prison.
       On appeal, Navarro-Diaz argues that the district court (1) erred in denying his motion to
suppress his identity, and (2) committed plain error in enhancing his sentence based upon his prior
felony convictions. For the reasons set forth below, we AFFIRM Navarro-Diaz’s conviction, but

         *
         The Honorable Bernice B. Donald, United States District Judge for the Western District of Tennessee, sitting
by designation.


                                                         1
No. 04-3954           United States v. Navarro-Diaz                                          Page 2


VACATE his sentence and REMAND the case to the district court for resentencing in accordance
with United States v. Booker, 125 S. Ct. 738 (2005).
                                       I. BACKGROUND
        In January of 2003, the police in Xenia, Ohio were called to a Holiday Inn to investigate
reports that a strong odor of marijuana was emanating from one of the guest rooms. The hotel
manager told the police officers that the room in question was occupied by two African-American
males, but that three Hispanic males had joined them in the room. When the officers knocked on
the door, they heard a “commotion” inside. Five minutes passed before one of the African-
American males, Leroy Swindle, opened the door.
        Swindle said that the five men were “waiting for some ladies to show up.” He admitted that
he had been smoking marijuana, but stated that he was the only one in the room who had been doing
so. When the officers asked him if he had any more marijuana in his possession, Swindle gave them
a small bag of marijuana, containing less than half an ounce, which was then flushed down the toilet
by the officers. The five men in the room were asked to identify themselves, and all except Navarro-
Diaz produced identification. Navarro-Diaz told the officers that his name was Jose Perez, and he
gave them his purported date of birth. He also said that he had been issued an Ohio driver’s license,
but did not have the license with him. When the officers entered the information provided by
Navarro-Diaz into the police database, however, they discovered that no one with that name and date
of birth had been issued a driver’s license in Ohio.
        At this point, the officers decided to release Swindle and the other African-American male
without citing them for misdemeanor marijuana possession because there was only a small quantity
of drugs at issue, and because the police database indicated that neither of them was wanted on an
outstanding warrant. The three remaining men, all Hispanic males, were kept in the room while the
officers attempted to run a background check on Navarro-Diaz. When the officers asked Navarro-
Diaz for his name and date of birth a second time, he insisted that his name was Jose Perez, but he
provided a different date of birth. This information also did not match any known person in the
police database.
        The hotel manager was anxious to have the police and the remaining occupants of the room
leave the premises, so the officers decided to take Navarro-Diaz and his two companions to the
police station to continue the investigation. As everyone was leaving the room, however, an officer
noticed that one of the men, Juan Candelez, was hanging back and fidgeting with something in his
pocket. When asked to empty his pockets, Candelez produced the magazine to a handgun. Candelez
was immediately handcuffed and frisked, whereupon the officers discovered a loaded handgun
tucked in his belt. He was promptly arrested for possession of a concealed weapon. A subsequent
search of the room revealed a second handgun rolled up in a towel in the bathroom.
       Candelez then consented to a search of his car, which was parked in the hotel lot. In
searching the car, the officers found a wallet that contained an identification card for a man who
resembled Navarro-Diaz. When the officers showed Navarro-Diaz the identification card, he finally
admitted that his name was not Juan Perez, but rather Gildardo Navarro-Diaz. The officers ran this
information through their database and discovered that Navarro-Diaz had an outstanding warrant
in Dayton, Ohio for failure to appear in traffic court. Navarro-Diaz was then arrested both for
providing false information to the police and on the basis of the outstanding warrant. After he had
been booked at the police station, the officers called representatives of the Immigration and
Naturalization Service (now the Department of Homeland Security), who questioned Navarro-Diaz
over the phone for several minutes.
No. 04-3954           United States v. Navarro-Diaz                                             Page 3


        Navarro-Diaz was charged in a one-count indictment with the offense of being an alien who
had previously been deported and who was found to be in the United States without the permission
of the Attorney General, in violation of 8 U.S.C. § 1326. He moved to suppress the evidence that
was obtained from him during the questioning at the hotel—this being his identity and date of
birth—because the officers had allegedly detained him without having a reasonable suspicion that
he was engaged in illegal conduct.
       At his suppression hearing, Navarro-Diaz admitted that he had been convicted of felony drug
offenses in 1994, 1996, and 1997, and that he had been deported from the United States five times
previously. In a written decision, the district court denied Navarro-Diaz’s motion to suppress.
Navarro-Diaz then entered a conditional guilty plea, reserving his right to appeal the denial of his
motion. He was sentenced to 57 months of imprisonment. This timely appeal followed.
                                           II. ANALYSIS
A.      Standard of review
        In reviewing a ruling on a motion to suppress, we will uphold a district court’s factual
findings unless they are clearly erroneous, but will conduct a de novo review of a district court’s
legal determinations. United States v. Moncivais, 401 F.3d 751, 754 (6th Cir. 2005). “When
reviewing the denial of a motion to suppress evidence, the appellate court must consider the
evidence in the light most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822
(6th Cir. 1998) (en banc).
B.      The district court did not err in denying Navarro-Diaz’s motion to suppress his identity
        Navarro-Diaz maintains that the district court erred in failing to suppress his identity because
the information was obtained in violation of his Fourth Amendment rights. Specifically, Navarro-
Diaz claims that the police officers at the hotel lacked reasonable suspicion to detain him, and that
they learned his name and date of birth only as a result of this unlawful detention. See Terry v. Ohio,
392 U.S. 1, 30 (1968) (holding that a limited search may lawfully be conducted “where a police
officer observes unusual conduct which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous”).
         Navarro-Diaz’s motion to suppress was denied by the district court after it found that “the
only evidence which the officers obtained from the Defendant as a result of their confrontation with
him on January 13, 2003, was an admission that he was Gildardo Diaz and his date of birth.” The
district court declined to reach the issue of whether Navarro-Diaz’s detention violated the Fourth
Amendment because the court concluded that INS v. Lopez-Mendoza, 468 U.S. 1032 (1984),
precluded the suppression of Navarro-Diaz’s identity regardless of whether he had been unlawfully
detained.
       In Lopez-Mendoza, the Supreme Court considered “whether an admission of unlawful
presence in this country made subsequent to an allegedly unlawful arrest must be excluded as
evidence in a civil deportation hearing.” 468 U.S. at 1034. Refusing to suppress the alien’s identity,
the Court held that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interrogation occurred.” Id. at 1039.
       The question in the present case—whether a defendant’s name and date of birth must be
suppressed when they are disclosed as a result of an allegedly unconstitutional police detention—is
a matter of first impression in this circuit. Courts in the Fifth, Eighth, Ninth, and Tenth Circuits,
however, have all addressed the question in cases similar to Navarro-Diaz’s, where an alien had been
No. 04-3954            United States v. Navarro-Diaz                                               Page 4


indicted under 8 U.S.C. § 1326. The Ninth Circuit concluded, in reliance on Lopez-Mendoza, “that
the simple fact of who a defendant is cannot be excluded, regardless of the nature of the violation
leading to his identity.” United States v. Del Toro Gudino, 376 F.3d 997, 1000-01 (9th Cir. 2004)
(noting the Supreme Court’s “extraordinarily broad statement, using the rarely employed word
‘never’”); see also United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (“Even if
the Defendant was illegally stopped, neither his identity nor his INS file are suppressible.”). An
unpublished decision from the Tenth Circuit reaches the same conclusion. United States v.
Cisneros-Cruz, No. 98-1398, 1999 WL 444926, at *6 (10th Cir. June 30, 1999) (“The Supreme
Court has held that the identity of a defendant . . . is never itself suppressible . . . .”) (citing Lopez-
Mendoza, 468 U.S. at 1039) (quotation marks omitted).
        The Eighth Circuit, in contrast, initially declined to follow “the broad interpretation given
Lopez-Mendoza by the Fifth and Ninth Circuits.” United States v. Guevara-Martinez, 262 F.3d 751,
754 (8th Cir. 2001) (citing Roque-Villanueva, 175 F.3d at 346, and an earlier Ninth Circuit case).
In Guevara-Martinez, the Eighth Circuit distinguished a criminal prosecution under 8 U.S.C. § 1326
from the civil deportation proceeding at issue in Lopez-Mendoza and held “that Lopez-Mendoza has
no bearing upon the suppression of unlawfully obtained identity-related evidence in a criminal
proceeding.” 262 F.3d at 754 (emphasis added). Support for the Eighth Circuit’s holding can be
found in the language of Lopez-Mendoza itself, where the Supreme Court stressed that, in light of
the “the civil nature of the proceeding, various protections that apply in the context of a criminal trial
do not apply in a deportation hearing.” 468 U.S. at 1038 (explaining that “[a] deportation
proceeding is purely a civil action to determine eligibility to remain in this country, not to punish
unlawful entry”).
         But in two subsequent cases, the Eighth Circuit has narrowed the holding of Guevara-
Martinez. See United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (concluding
in dicta that the district court had erred in suppressing the alien’s identity in an action under 8 U.S.C.
§ 1326); United States v. Perez-Perez, 337 F.3d 990, 993-94 (8th Cir. 2003) (affirming on other
grounds the district court’s denial of an alien’s motion to suppress his identity in a prosecution under
8 U.S.C. § 1326). These later cases called attention to a crucial distinction between the facts before
the court in Guevara-Martinez and the facts confronting the courts in the Fifth, Ninth, and Tenth
Circuits. The defendant in Guevara-Martinez had moved to suppress both his identity and his
fingerprints, which were obtained from him during his unlawful arrest. 262 F.3d at 752. And,
although the district court granted his suppression motion in full, the government chose to appeal
only the suppression of the fingerprint evidence. Id. at 753. Because “the identity-related evidence
that the district court suppressed was fingerprint evidence,” the Eighth Circuit felt compelled to
follow established Supreme Court precedent that “applied the exclusionary rule to fingerprint
evidence obtained as the result of unlawful arrests.” Id. at 754 (citing Davis v. Mississippi, 394 U.S.
721 (1969), and Hayes v. Florida, 470 U.S. 811 (1985)).
        The cases before the Fifth, Ninth, and Tenth Circuits, on the other hand, involved the
suppression of only the defendant’s identity. See Del Toro Gudino, 376 F.3d at 1001 (“Identity
evidence is inherently different from other kinds of evidence . . . .”). As the Eighth Circuit noted
in Rodriguez-Arreola, “[t]he Ninth Circuit’s opinion gives no indication that it was refusing to
suppress specific physical evidence of any sort; it only indicates that the court declined to suppress
the simple fact of who the defendant was.” 270 F.3d at 618 (emphasis added); cf. United States v.
Garcia-Beltran, 389 F.3d 864, 866-67 (9th Cir. 2004) (reversing the district court’s denial of a
suppression motion where the defendant “did not seek to suppress the fact of his identity . . . [,
but r]ather, he sought to exclude . . . [his] fingerprints”). In its later opinions, the Eighth Circuit has
indicated that it would reach the same result as the Fifth, Ninth, and Tenth Circuits if confronted
with a defendant who seeks to suppress only his identity. See Perez-Perez, 337 F.3d at 994
(observing that, when the court in Guevara-Martinez used the term “identity evidence,” it was
referring “specifically [to] fingerprints”).
No. 04-3954           United States v. Navarro-Diaz                                            Page 5


        The conclusion that a defendant’s identity cannot be suppressed comports with the decisions
of other courts that have ruled on the issue outside of the immigration context. For instance, the
Fourth Circuit was presented with a case where the police stopped a van without reasonable
suspicion, learned the identity of the occupants of the van, and then later connected the occupants
to a crime in the area. United States v. Arias, 678 F.2d 1202, 1203-05 (4th Cir. 1982). The
defendants moved to suppress their identities, claiming “that the identity of the van’s occupants
would never have been discovered had the van not been stopped.” Id. at 1206. Acknowledging that
“this may be true,” the court ruled that “the identity of defendants is not suppressible under the
exclusionary rule.” Id. (citing United States v. Crews, 445 U.S. 463 (1980)).
        In Crews, the Supreme Court permitted a defendant to be brought to trial even though he was
illegally arrested. The Court held that, although “the exclusionary sanction applies to any ‘fruits’
of a constitutional violation,” a defendant “is not himself a suppressible ‘fruit.’” Crews, 445 U.S.
at 470, 474. Relying on Crews, the Second Circuit has also concluded that “the identity of
defendants is not suppressible under the exclusionary rule.” United States v. Adegbite, 846 F.2d
834, 838-39 (2d Cir. 1988) (citation omitted).
        In the present case, Navarro-Diaz asks us to part ways with the other courts of appeal that
have ruled on this issue and hold that a defendant’s identity may be suppressed in a criminal
proceeding if the identity is obtained through police conduct violative of the Fourth Amendment.
Navarro-Diaz’s argument is not frivolous, especially in the context of a § 1326 violation. An alien
present in the United States without the Attorney General’s permission, after having been previously
deported, has committed a crime. 8 U.S.C. § 1326. The only evidence that the police must obtain
in order for the government to prosecute someone who has committed this crime is the person’s
identity. Navarro-Diaz argues that if the police are free to detain and question anyone they want in
order to obtain the person’s identity, they may be tempted, even in the absence of reasonable
suspicion, to single out people of certain ethnic backgrounds for questioning.
        The Supreme Court’s language in Lopez-Mendoza—that “[t]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an
unlawful arrest”—when taken out of context, could be read to suggest that random, widespread
detentions and questioning of suspected aliens would not implicate Fourth Amendment rights. 468
U.S. at 1039. We do not believe, however, that Lopez-Mendoza sanctions such a result. The
Supreme Court qualified its holding when it stated in the last paragraph of Lopez-Mendoza that “we
do not deal here with egregious violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness.” Id. at 1050. But see Del Toro Gudino, 376 F.3d at 999,
1001 (stating in dicta that the identity of a defendant who was “stopped merely because of ethnicity”
could not be suppressed because the Supreme Court’s qualification applied to another, unrelated
portion of its Lopez-Mendoza opinion, as evidenced by the fact that “the line of cases cited by the
Court in support of its identity holding involved fact patterns that most likely would have constituted
‘egregious’ violations of the defendants’ rights”).
        Like the defendant in Lopez-Mendoza, Navarro-Diaz was not the victim of an “egregious
violation[] of the Fourth Amendment.” 468 U.S. at 1050. Although the district court in the present
case made no finding with respect to whether the police had reasonable suspicion to detain Navarro-
Diaz, the record reveals that he was not accosted by the police in a random attempt to determine
whether he was an illegal alien. His encounter with law enforcement was precipitated by his being
present in a hotel room in the middle of the day with four other local men, at least one of whom was
smoking marijuana. All of the men in the room, not just the Hispanic men, were asked to identify
themselves. Navarro-Diaz did so by providing the police with a false name, and then one of his
companions was found to be in possession of a loaded handgun. A search of the hotel room led to
the discovery of another gun in the bathroom. Under these circumstances, the police officers
No. 04-3954           United States v. Navarro-Diaz                                              Page 6


decision to detain Navarro-Diaz until he provided his real name can hardly be said to have
“transgress[ed] notions of fundamental fairness.” Id. at 1050.
        Moreover, there is a significant practical problem with Navarro-Diaz’s argument. Navarro-
Diaz “is a person whose unregistered presence in this country, without more, constitutes a crime.
His release within our borders would immediately subject him to criminal penalties.” See Lopez-
Mendoza, 468 U.S. at 1047. If his “identity may be suppressed, the moment the court lets him go,
he is immediately committing the continuing violation of being present in the United States after
having been deported.” Del Toro Gudino, 376 F.3d at 1001-02 (“Although the rule that identity
evidence is not suppressible is not limited to § 1326 cases, its practical force is particularly great in
this context.”). The Supreme Court recognized this difficulty in Lopez-Mendoza, when it refused
to suppress the alien’s identity because, although “[t]he constable’s blunder may allow the criminal
to go free, . . . [the Court has] never suggested that it allows the criminal to continue the commission
of an ongoing crime.” 468 U.S. at 1047 (“Even the objective of deterring Fourth Amendment
violations should not require such a result.”).
           Directing the district court to grant Navarro-Diaz’s suppression motion, therefore, would not
affect the ultimate outcome of the charge against him. If the government were forced to drop its
prosecution of Navarro-Diaz, the police could simply approach him on his way out of the courtroom
door and demand that he identity himself. See Hiibel v. Sixth Judicial Dist., 124 S. Ct. 2451, 2458
(2004) (stating that, so long as reasonable suspicion exists, “a police officer is free to ask a person
for identification without implicating the Fourth Amendment”); see also INS v. Delgado, 466 U.S.
210, 212 (1984) (holding that “the individual questioning of the [defendants] by INS agents
concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment”).
Should Navarro-Diaz refuse to answer, he could be arrested under a state “stop-and-identify” statute,
and his identity could then be discovered during the course of the normal booking procedure. See
Hiibel, 124 S. Ct. at 2459 (“A state law requiring a suspect to disclose his name [or else face arrest]
. . . is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.”).
        Because Navarro-Diaz could simply be reindicted for the same offense, suppressing his
identity would have little deterrent effect upon the police who questioned him during his allegedly
unlawful detention. See United States v. Rodriguez-Arreola, 270 F.3d 611, 619 (8th Cir. 2001)
(stating that the suppression of fingerprint evidence taken during an unlawful arrest would not “bar
the present or future prosecution of [the defendant] under § 1326”). We therefore conclude that the
Supreme Court’s holding in Lopez-Mendoza mandates that Navarro-Diaz’s motion to suppress his
identity be denied, regardless of whether this information was obtained in violation of his Fourth
Amendment rights.
C.      The district court committed plain error in sentencing Navarro-Diaz under the then-
        mandatory Sentencing Guidelines
        Navarro-Diaz also argues that the district court committed plain error in enhancing his
sentence based upon his three prior felony-drug convictions, and he asks that his case be remanded
to the district court for resentencing in light of United States v. Booker, 125 S. Ct. 738, 749 (2005).
Prior to the enhancement, Navarro-Diaz’s sentencing range was determined to be 4 to 10 months
of imprisonment. But after the district court’s 16-level enhancement based upon his prior criminal
convictions, Navarro-Diaz’s sentencing range jumped to between 57 and 71 months. The district
court sentenced him to 57 months, the lowest end of the enhanced range.
       In sentencing Navarro-Diaz, the district court hinted that it might have imposed a sentence
that was shorter than the minimum if such a sentence were allowed under the Sentencing Guidelines.
The court justified its decision to sentence Navarro-Diaz at the low end of the enhanced range
because cases “involving defendants who will be deported result, in effect, in harsher time because
No. 04-3954           United States v. Navarro-Diaz                                           Page 7


they are not eligible for halfway house placement . . . . So this defendant will be serving six months
longer in an institution than someone who is an American citizen.”
        Navarro-Diaz’s sentencing enhancement was based solely on his prior criminal convictions.
“Booker’s holding, that the Sixth Amendment bars mandatory enhancements based on judicial fact-
finding, does not apply to the fact of a prior criminal conviction.” United States v. Poole, 407 F.3d
767, 777 (6th Cir. 2005) (quotation marks omitted); cf. Booker, 125 S. Ct. at 756 (“Any fact (other
than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.”).
         Regardless, Navarro-Diaz was sentenced under the then-mandatory Sentencing Guidelines.
“[E]ven absent a Sixth Amendment violation, this Court has decided that a defendant sentenced
under the mandatory Guidelines regime is entitled to a remand for resentencing under the now-
advisory Guidelines unless there is evidence in the record to rebut the presumption of prejudice.”
United States v. Alva, 405 F.3d 383, 385 (6th Cir. 2005). There is no evidence in the present case
to rebut the presumption. In fact, there is affirmative evidence in the record that suggests that the
district court might well have shortened Navarro-Diaz’s sentence if it had had the discretion to do
so. We therefore conclude that this case must be remanded for resentencing under the now-advisory
Sentencing Guidelines. See United States v. Barnett, 398 F.3d 516, 530-31 (6th Cir. 2005)
(remanding for resentencing where the defendant was sentenced under the mandatory Guidelines
regime).
                                       III. CONCLUSION
      For all of the reasons set forth above, we AFFIRM Navarro-Diaz’s conviction, but
VACATE his sentence and REMAND the case to the district court for resentencing in light of
Booker.
