                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 11-50379
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:10-cr-03309-
                                           DMS-1
VENANCIO ROJAS-PEDROZA ,
            Defendant-Appellant.



UNITED STATES OF AMERICA ,               No. 11-50381
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:08-cr-02715-
                                           DMS-1
VERNANCIO ROJAS-PEDROZA , AKA
Venancio Rojas-Pedroza,
              Defendant-Appellant.         OPINION


      Appeal from the United States District Court
         for the Southern District of California
       Dana M. Sabraw, District Judge, Presiding

              Argued and Submitted
       December 3, 2012—Pasadena, California

                  Filed May 28, 2013
2             UNITED STATES V . ROJAS-PEDROZA

        Before: Marsha S. Berzon, Richard R. Clifton,
             and Sandra S. Ikuta, Circuit Judges.

                     Opinion by Judge Ikuta


                           SUMMARY*


                           Criminal Law

    The panel affirmed a conviction and sentence for illegal
reentry in a case in which the defendant collaterally
challenged the validity of the removal order underlying his
8 U.S.C. § 1326(b) sentencing enhancement and argued that
the district court violated his Sixth Amendment right to
confrontation by admitting documents from his immigration
A-file.

    The panel noted that even if the defendant succeeded on
his collateral challenge to his 2010 removal order, which was
a reinstatement of a 1998 removal order, it would not affect
the indictment’s charge under 8 U.S.C. § 1326(a) because the
government relied on evidence of removals other than the
2010 removal order to prove its case.

     The panel observed that the record is ambiguous as to
whether in the 1998 proceedings the immigration judge failed
to inform the defendant of relief in the form of pre-conclusion
voluntary departure for which the defendant claims he was
apparently eligible. The panel concluded that the defendant

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V . ROJAS-PEDROZA                 3

failed to show prejudice because the defendant’s equities
would not have caused an IJ to grant him voluntary departure
in 1998.

    Rejecting the defendant’s contention that admission of
statements contained in documents from his A-file violated
the Sixth Amendment’s Confrontation Clause, the panel
disagreed that the approach set forth in United States v.
Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), is inconsistent
with subsequent decisions of the Supreme Court. The panel
held that statements in the 1998 warrant of removal,
statements in a Notice of Decision/Intent to Reinstate Prior
Order, and the IJ’s written order from the 1998 proceedings
are all non-testimonial.

    The panel held that the district court did not err in
denying the defendant a two-point reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1. The panel also
rejected the defendant’s contention that in light of a
Sentencing Guidelines amendment that was scheduled to take
effect after the defendant’s sentencing, it was substantively
unreasonable for the district court to impose a term of
supervised release. The panel wrote that there is no language
in the Guidelines suggesting that the new supervised release
provision, U.S.S.G. § 5D1.1(c) (2011), has retroactive effect.
4            UNITED STATES V . ROJAS-PEDROZA

                         COUNSEL

James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for Defendant–Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and Kyle W. Hoffman (argued), Assistant
United States Attorney, San Diego, California, for
Plaintiff–Appellee.


                          OPINION

IKUTA, Circuit Judge:

     Venancio Rojas-Pedroza challenges his conviction and
sentence under 8 U.S.C. § 1326(a) and (b) for being an alien
found in the United States after removal. We hold that the
district court was correct to reject Rojas’s collateral challenge
to the validity of the removal order underlying his § 1326(b)
sentencing enhancement. We also reject Rojas’s arguments
that the district court violated his Sixth Amendment right to
confrontation by admitting documents from his immigration
file, and his claims that the district court erred procedurally
and substantively in imposing a sentence.

                               I

   We begin with an overview of Rojas’s relevant
immigration and criminal background before turning to the
proceedings in this case.
               UNITED STATES V . ROJAS-PEDROZA                           5

                                    A

    Rojas entered the United States illegally in 1982, when he
was fourteen. The record shows that since that time, he has
lived intermittently in the United States, but never had legal
status.1 His parents and his two daughters live in Mexico,
although several of his siblings reside in the United States.

    When in the United States, Rojas was convicted of a
number of criminal offenses. In October 1993, he was
convicted of unlicensed driving, possession of an open
container while driving, and the failure to pay a fine. In April
1994, he was charged with and later convicted of driving
under the influence. In August 1995, he was convicted of
unlicensed driving. In March 1997, he incurred a second
conviction for driving under the influence. Finally, in
September 2008, he was convicted of aiding and abetting the
transportation of illegal aliens in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II), which is an
aggravated felony for purposes of immigration law. 8 U.S.C.
§ 1101(a)(43)(N). As a result of that conviction he was




  1
    Sometime prior to April 1991, Rojas applied for temporary resident
status as a Special Agricultural W orker under the provisions of 8 U.S.C.
§ 1160. His application was denied, because the affidavits he submitted
to prove he had performed seasonal agricultural services in the United
States for the required length of time, see §§ 1160(a)(1)(B)(ii) and
(b)(3)(B)(i), were signed by an individual convicted of fraud in connection
with the Special Agricultural W orker program, and the affidavits were
deemed not credible.
6              UNITED STATES V . ROJAS-PEDROZA

sentenced to two years in prison and two years of supervised
release.2

    In addition to these criminal convictions, Rojas was
removed or deported from the United States on five occasions
(June 1997, February 1998, November 2004, May 2007, and
April 2010). Rojas illegally returned to the United States
after each of these removals or deportations.

   During the hearing for the June 1997 removal, Rojas
admitted to entering the United States illegally. After
concluding that Rojas was removable, the IJ considered
whether he was eligible for relief from removal, including
voluntary departure. In response to the IJ’s questions, Rojas
and his attorney stated that Rojas did not have any
convictions,3 that he had never been to jail, that his Special
Agricultural Worker application had been denied, that he was
unmarried, that he did not have any children, and that his
family was in Mexico. The IJ ordered Rojas removed and
denied his request for voluntary departure “based upon
[Rojas’s] lack of ties to the United States.”




    2
    In addition to his criminal convictions, Rojas was arrested or cited on
several other occasions. In June 1995, he was cited for driving under the
influence and unlicensed driving. In June 1997, he was arrested by the
Drug Enforcement Administration for possession of heroin. In 2004, he
was arrested for assault. Finally, in May 2007, the San Diego police
arrested Rojas for possession of methamphetamine and possession of
burglary tools.

        3
      Rojas’s attorney was mistaken. At the time, Rojas had four
misdemeanor convictions, including two convictions for driving under the
influence.
                UNITED STATES V . ROJAS-PEDROZA                  7

     Rojas reentered the United States illegally after the June
1997 removal and was detected in the country again in 1998.
At the hearing for his February 1998 removal, Rojas correctly
informed the IJ that he had been “kicked out” in June 1997,
but he also erroneously stated that he had been granted
voluntary departure instead of being removed. Based on
Rojas’s illegal re-entry, the IJ found him removable. The IJ
then asked Rojas a series of questions to determine whether
he was eligible for relief from removal. In response to these
questions, Rojas stated that his parents were not United States
citizens or legal residents, that he was not married, and that
he did not have children who were United States citizens.
The IJ ordered Rojas removed, and determined that Rojas was
ineligible for voluntary departure because he had previously
been granted voluntary departure, and then illegally returned.

   Rojas again returned to the United States illegally. In
October 2009, Rojas’s 1998 removal order was reinstated and
used as a basis for a subsequent removal in April 2010.

                                     B

    We now turn to the proceedings in this case. After his
April 2010 removal, Rojas was again found in the United
States illegally, and the government indicted him in August
2010 under 8 U.S.C. §§ 1326(a) and (b).4 Relevant here,



 4
     8 U.S.C. §§ 1326(a) and (b) state, in pertinent part:

          (a) In general

          Subject to subsection (b) of this section, any alien
          who—
8           UNITED STATES V . ROJAS-PEDROZA

§ 1326(a) provides criminal penalties for an alien who was:
(1) deported or removed from the United States; and (2)
thereafter “enters, attempts to enter, or is at any time found
in, the United States” without the express consent of the
Attorney General. Section 1326(b)(2) establishes enhanced
penalties for an alien who was described in § 1326(a) and
“whose removal was subsequent to a conviction for
commission of an aggravated felony.” In other words, under
§§ 1326(a) and (b)(2), an alien is guilty of illegal reentry and
subject to enhanced penalties if the alien was: (1) convicted


           (1) has been denied admission, excluded, deported,
           or removed or has departed the United States while
           an order of exclusion, deportation, or removal is
           outstanding, and thereafter

           (2) enters, attempts to enter, or is at any time found
           in, the United States, unless (A) prior to his
           reembarkation at a place outside the United States
           or his application for admission from foreign
           contiguous territory, the Attorney General has
           expressly consented to such alien’s reapplying for
           admission . . .

       shall be fined under Title 18, or imprisoned not more
       than 2 years, or both.

       (b) Criminal penalties for reentry of certain removed
       aliens

           Notwithstanding subsection (a) of this section, in
           the case of any alien described in such
           subsection— . . .

           (2) whose removal was subsequent to a conviction
           for commission of an aggravated felony, such alien
           shall be fined under such title, imprisoned not
           more than 20 years, or both . . . .
            UNITED STATES V . ROJAS-PEDROZA                 9

of an aggravated felony, (2) subsequently removed from the
United States, and (3) thereafter illegally reentered or was
found in the United States.          See United States v.
Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006).

    The indictment charged Rojas under §§ 1326(a) and (b),
and alleged that Rojas was an alien who had been removed
from the United States after December 12, 2008, and was
subsequently found in the United States. These allegations
supported both the government’s § 1326(a) charge (which
required proving that Rojas was removed from the United
States and subsequently found in the United States) and its
§ 1326(b) charge (which, under § 1326(b)(2), required
proving that Rojas’s removal from the United States occurred
after his conviction for an aggravated felony in September
2008).

    Before trial, Rojas moved to dismiss the indictment on the
ground that his April 2010 removal was invalid. Because the
April 2010 removal was the only removal that occurred after
his conviction for an aggravated felony in September 2008,
it was necessary to support the sentencing enhancement under
§ 1326(b)(2).

    After the district court denied this motion, Rojas filed a
second pretrial motion to bar the admission of documents
from the individual case file maintained by the Department of
Homeland Security (referred to as an “alien file” or “A-File”)
for the purpose of proving alienage. The documents at issue
here are a “Warrant of Removal/Deportation,” a “Notice
of Intent/Decision to Reinstate Prior Order,” and an
“Order of the Immigration Judge.” The “Warrant of
Removal/Deportation” states that Rojas, “who entered the
United States at Otay Mesa, CA on December 6, 1991 is
10          UNITED STATES V . ROJAS-PEDROZA

subject to removal/deportation from the United States, based
upon a final order by: an immigration judge in exclusion,
deportation, or removal proceedings.” The warrant is signed
by an INS official. The back of the warrant contains
information “[t]o be completed by [the] Service officer
executing the warrant.” It lists the “port, date, and manner of
removal,” includes a photo and a fingerprint with the captions
“photograph of alien removed” and “right index fingerprint
of alien removed,” respectively, and is signed by a different
INS official.

    The second document at issue, the “Notice of
Intent/Decision to Reinstate Prior Order,” consists of two
parts. The first part notified Rojas that he was “an alien
subject to a prior order of deportation/ exclusion/ removal
entered on February 23, 1998,” that he “was removed on May
21, 2007,” and that he illegally entered in 2007. It also
contains Rojas’s signature, indicating that he was not
contesting this information. The second part of this document
records the immigration officer’s final decision that Rojas
was subject to removal.

   The third document at issue, the “Order of the
Immigration Judge,” summarizes the IJ’s oral decision from
Rojas’s 1998 proceedings. The written order contains
checked-off boxes indicating that Rojas was “ordered
removed from the United States to Mexico,” and that his
“application for voluntary departure was denied.” The
document also states that Rojas “waived” appeal.

   The district court denied Rojas’s motion to suppress these
documents. Rojas proceeded to trial and the jury convicted
him on all counts.
            UNITED STATES V . ROJAS-PEDROZA                  11

    At sentencing, Rojas argued that he was entitled to a
Sentencing Guidelines adjustment for acceptance of
responsibility because he admitted he was a Mexican citizen
when apprehended and later admitted to immigration agents
that he had been previously deported or removed. The
district court declined to make a downward adjustment for
acceptance of responsibility, stating that “Rojas did not
accept responsibility, he elected to stand on his constitutional
rights, hold the government to its burden of proof to establish
beyond a reasonable doubt all the elements in the allegation.”
In particular, the district court noted that Rojas had
challenged whether he had actually been removed, given that
the government agent who effectuated the removal and
witnessed Rojas cross the border had inadvertently failed to
sign the “witness of departure line” in Rojas’s warrant.

    As a result of the § 1326 conviction, Rojas was sentenced
to 51 months’ imprisonment, followed by three years of
supervised release. The district court also revoked Rojas’s
supervised release from his 2008 conviction for aiding and
abetting the transportation of illegal aliens, and sentenced him
to an additional 7 months’ custody to be served consecutively
to his § 1326 sentence. Rojas timely appealed.

                              II

    We have jurisdiction over Rojas’s appeal of his
conviction and the district court’s revocation of supervised
release under 28 U.S.C. § 1291. United States v. Vallee,
677 F.3d 1263, 1264 (9th Cir. 2012). We have jurisdiction
under 18 U.S.C. § 3742 to review Rojas’s sentence. United
States v. Juan, 704 F.3d 1137, 1140 (9th Cir. 2013).
12              UNITED STATES V . ROJAS-PEDROZA

                                    A

    We begin with Rojas’s appeal of the district court’s denial
of his motion to dismiss the indictment. Rojas’s challenge to
the indictment is based on his claim that the April 2010
removal is invalid. He reasons as follows: (1) the April 2010
removal is a reinstatement of the 1998 removal order; (2) the
1998 removal order is invalid because the IJ in the 1998
removal proceeding did not advise Rojas of his eligibility to
apply for relief under 8 U.S.C. § 1229c(a)5 (generally referred
to as “pre-conclusion voluntary departure”); and (3) because
the 1998 removal order is invalid, it cannot support the April
2010 reinstatement. We review the district court’s rejection
of this argument de novo. United States v. Gonzalez-Valerio,
342 F.3d 1051, 1053 (9th Cir. 2003).

                                    1

   As a threshold matter, we note that even if Rojas
succeeded on his collateral challenge to the April 2010
removal order, it would not affect the indictment’s § 1326(a)
charge.

   Although Rojas’s collateral challenge to his prior removal
order, if successful, would preclude the government from


 5
     8 U.S.C. § 1229c(a) provides that:

          (1) The Attorney General may permit an alien
          voluntarily to depart the United States at the alien’s
          own expense under this subsection, in lieu of being
          subject to [removal] proceedings . . . or prior to the
          completion of such proceedings, if the alien is not
          deportable” for reason of an aggravated felony or
          terrorist activity.
             UNITED STATES V . ROJAS-PEDROZA                  13

relying on that removal at trial, United States v. Medina,
236 F.3d 1028, 1031 (9th Cir. 2001), it would not necessarily
invalidate the indictment. Generally, an indictment is
sufficient so long as it sets forth all the elements necessary to
constitute the offense. United States v. Milovanovic,
678 F.3d 713, 727 (9th Cir. 2012) (en banc). However, where
a defendant is successful in collaterally attacking the only
prior removal that supported the government’s case, we have
held that dismissal of the indictment is appropriate. See, e.g.,
United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.
2006). This is because, under those narrow circumstances,
there would be no question that the government lacked the
evidence to convict the defendant. See United States v.
Phillips, 367 F.3d 846, 855 n.25 (9th Cir. 2004) (noting that
a district court may dismiss an indictment where the facts are
undisputed); see also United States v. Mendoza-Lopez,
481 U.S. 828, 842 (1987).

    The result is different in this case. Here, the indictment
tracks § 1326(a)’s elements by alleging that Rojas was an
alien who was deported or removed from the United States
and was subsequently found in the United States without
authorization. The indictment does not rely on a particular
removal for the § 1326(a) charge, and at trial the government
introduced and relied on evidence of Rojas’s 1997 removal
order as well as the April 2010 removal to prove the elements
of the § 1326(a) charge. Because the government relied on
removals other than the April 2010 removal to support its
case, we reject Rojas’s argument that the court erred in not
dismissing the § 1326(a) charge in the indictment.
14            UNITED STATES V . ROJAS-PEDROZA

                                    2

    We must still consider, however, whether the district
court erred in not dismissing the § 1326(b) charge in the
indictment. See United States v. W.R. Grace, 504 F.3d 745,
751 (9th Cir. 2007) (recognizing that an indictment may be
dismissed in part).

    In order to subject a defendant to § 1326(b)’s enhanced
penalties, the government must allege in the indictment and
prove at trial that the defendant was removed after a
particular date. United States v. Contreras-Hernandez,
628 F.3d 1169, 1175 (9th Cir. 2011).6 To that end, the
indictment alleged that Rojas “was removed from the United
States subsequent to December 12, 2008.” Because it is
undisputed that the April 2010 removal was the only removal
that occurred after this date, the government cannot prove the
§ 1326(b) charge if Rojas successfully challenges that
removal. Accordingly, we turn to Rojas’s collateral challenge
to the April 2010 removal, which was based on a
reinstatement of the 1998 removal order.

    In order to make a collateral challenge to a prior removal
or deportation order, a defendant must satisfy 8 U.S.C.
§ 1326(d), which requires the defendant to demonstrate that
“(1) the alien exhausted any administrative remedies that may
have been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued


 6
   At sentencing, the district court determines, based on the date alleged
and proved by the government, whether “the alien’s removal occurred
after [a] qualifying conviction” that triggers § 1326(b)’s enhanced
penalties. Contreras-Hernandez, 628 F.3d at 1174–75 (internal quotation
marks omitted).
                UNITED STATES V . ROJAS-PEDROZA                        15

improperly deprived the alien of the opportunity for judicial
review; and (3) the entry of the order was fundamentally
unfair.” § 1326(d).7

    Under our case law, a defendant can meet all these
requirements by establishing that the IJ failed to inform the
defendant “of his or her apparent eligibility” for relief as
required by 8 C.F.R. § 1240.11(a)(2),8 and that the defendant
had plausible grounds for relief. See United States v. Vidal-
Mendoza, 705 F.3d 1012, 1014–16 (9th Cir. 2013).


 7
     8 U.S.C. § 1326(d) states:

          Limitation on collateral        attack   on   underlying
          deportation order

          In a criminal proceeding under this section, an alien
          may not challenge the validity of the deportation order
          described in subsection (a)(1) of this section or
          subsection (b) of this section unless the alien
          demonstrates that—

               (1) the alien exhausted any administrative remedies
               that may have been available to seek relief against
               the order;

               (2) the deportation proceedings at which the order
               was issued improperly deprived the alien of the
               opportunity for judicial review; and

               (3) the entry of the order was fundamentally unfair.

 8
     Section 1240.11(a)(2) states:

          The immigration judge shall inform the alien of his or
          her apparent eligibility to apply for any of the benefits
          enumerated in this chapter and shall afford the alien an
          opportunity to make application during the hearing . . . .
16           UNITED STATES V . ROJAS-PEDROZA

    We recently explained why an IJ’s failure to inform an
alien regarding “apparent eligibility” for relief fulfills the
requirements of §§ 1326(d)(1) and (2), and part of
§ 1326(d)(3). Id. First, the IJ’s error excuses the alien from
the administrative exhaustion requirement of § 1326(d)(1),
because “we deem the alien’s waiver of the right to an
administrative appeal to have been insufficiently ‘considered
and intelligent.’” Id. at 1015 (quoting United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1049–50 (9th Cir. 2004)).
Second, the same failure to inform an alien regarding
“apparent eligibility” for relief also “deprive[s] the alien of
the opportunity for judicial review,” § 1326(d)(2), because
“an alien who is not made aware that he has a right to seek
relief necessarily has no meaningful opportunity to appeal the
fact that he was not advised of that right.” United States v.
Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Finally, this
same error partially satisfies the requirement of § 1326(d)(3),
that the entry of the removal order was “fundamentally
unfair.” A removal order is “fundamentally unfair,” if “(1)
[the alien’s] due process rights were violated by defects in his
underlying deportation proceeding, and (2) he suffered
prejudice as a result of the defects.” Ubaldo-Figueroa,
364 F.3d at 1048 (internal quotation marks omitted). We
have concluded that an IJ’s failure to advise an alien of
“apparent eligibility” to apply for relief is a due process
violation, United States v. Lopez-Velasquez, 629 F.3d 894,
897 (9th Cir. 2010) (en banc), and thus satisfies the first
prong of § 1326(d)(3).

    For purposes of this analysis, eligibility for relief is
“apparent” where “the record, fairly reviewed by an
individual who is intimately familiar with the immigration
laws[,] . . . raises a reasonable possibility that the petitioner
may be eligible for relief.” Lopez-Velasquez, 629 F.3d at 897
            UNITED STATES V . ROJAS-PEDROZA                 17

(internal quotation marks omitted). This inquiry “focuse[s]
on whether the factual circumstances in the record before the
IJ suggest that an alien could be eligible for relief.” Id. at
900. Because “IJs are not expected to be clairvoyant,” we
have explained that an IJ need not advise an alien of possible
relief when the record lacks such a factual basis. Id As a
result, “[u]ntil the alien himself or some other person puts
information before the judge that makes such eligibility
apparent,” the IJ’s duty to advise the alien “does not come
into play.” Id.

    Where an IJ failed to advise an alien “of his or her
apparent eligibility” for relief, 8 C.F.R. § 1240.11(a)(2), the
alien must still establish prejudice under the second prong of
§ 1326(d)(3). This requires the alien to make an additional
showing and demonstrate “plausible grounds” for relief.
Gonzalez-Valerio, 342 F.3d at 1054. “Where the relevant
form of relief is discretionary, the alien must make a
‘plausible’ showing that the facts presented would cause the
Attorney General to exercise discretion in his favor.” United
States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.
2011) (internal quotation marks omitted). In determining
whether the alien has made this showing, we apply a two-step
process. First, we identify the factors relevant to the IJ’s
exercise of discretion for the relief being sought. See id. at
1089–90. Next, we determine whether, “in light of the
factors relevant to the form of relief being sought, and based
on the unique circumstances of the alien’s own case, it was
plausible (not merely conceivable) that the IJ would have
exercised his discretion in the alien’s favor.” Id. at 1089
(internal quotation marks, alterations, and citation omitted).
In making this determination, we are not concerned with
general statistics. Id. Instead, we focus on whether aliens
18          UNITED STATES V . ROJAS-PEDROZA

with similar circumstances received relief. See id. at 1091
n.17.

    We applied this two-step approach in Barajas-Alvarado.
There, the defendant argued that the IJ erroneously failed to
inform him about the opportunity to withdraw his application
for admission. Id. at 1089. Because an immigration officer’s
authority to grant this relief is discretionary, we began by
identifying the factors relevant to the exercise of such
discretion. Id. In this regard, we noted that the field manual
applicable to immigration officers set forth six factors,
including seriousness of the immigration violation, previous
findings of inadmissibility, and intent to violate the law. Id.
at 1090. We next considered the specific circumstances of
the defendant’s case. There, the defendant had conceded that
he deliberately presented false documents, had been removed
twice, and had been subject to multiple findings of
inadmissibility. Id. at 1090. Applying the relevant factors to
the specific circumstances of the defendant’s case, we
concluded that it was not plausible that the IJ would have
exercised discretion in the defendant’s favor. Id. at 1090–91.
In doing so, we rejected the defendant’s argument that it was
plausible he would have received discretionary relief “as a
matter of statistics,” id. at 1091, and noted that we had
previously considered statistical evidence that IJs grant
discretionary relief applications “fifty percent of the time” to
be insufficient to show plausibility of relief. Id. (quoting
United States v. Corrales-Beltran, 192 F.3d 1311, 1138 (9th
Cir. 1999)). Finally, we rejected as inapposite the alien’s
citations to “two cases in which an alien . . . presented false
documents and was granted withdrawal.” Id. at 1091 n.17.
“Because [those] cases involve[d] aliens in very different
factual circumstances, and the courts in those cases neither
addressed nor explained why the alien was granted
                UNITED STATES V . ROJAS-PEDROZA                        19

withdrawal relief,” we held that they did not help the
defendant “carry his burden of showing it was plausible he
would have been granted relief in his unique circumstances.”
Id.

                                      3

   We now apply § 1326(d)’s requirements to Rojas’s
challenge to his 1998 removal order.

     Pursuant to § 1326(d), we begin by considering whether
Rojas adequately established that the IJ failed to inform him
of relief for which he claims he was apparently eligible.
Here, the record is ambiguous. During the 1998 proceedings,
Rojas informed the IJ that, during the 1997 proceeding he had
“signed [his] voluntary deportation.” Based on this
testimony, “an individual who is intimately familiar with the
immigration laws,” Lopez-Velasquez, 629 F.3d at 896
(internal quotation marks omitted), could reasonably
conclude that Rojas was not eligible for pre-conclusion
voluntary departure in 1998 because he had previously
received voluntary departure. See 8 U.S.C. § 1229c(c).9
Nevertheless, the record also contained information
suggesting that Rojas had not received voluntary departure in
1997. Specifically, the government lawyer noted that Rojas’s
file “reflects a removal on June 23, 1997.”

 9
     8 U.S.C. § 1229c(c) states:

          The Attorney General shall not permit an alien to depart
          voluntarily under this section if the alien was previously
          permitted to so depart after having been found
          inadmissible under section 1182(a)(6)(A) of this title
          [aliens present in the United States without being
          admitted or paroled].
20          UNITED STATES V . ROJAS-PEDROZA

    In light of the ambiguity in the record regarding whether
Rojas had apparent eligibility for relief (which would satisfy
§ 1326(d)(1) and (2) and the first component of
§ 1326(d)(3)), we instead resolve Rojas’s collateral challenge
based on the more straightforward inquiry raised by the
second component of § 1326(d)(3): whether Rojas was
prejudiced by the IJ’s failure to inform him of the possibility
of applying for that relief.

    Because pre-conclusion voluntary departure is a form of
discretionary relief, we apply Barajas-Alvarado’s two-part
test in determining prejudice.

    Under the first step of this test, we identify the factors
relevant to a discretionary grant of pre-conclusion voluntary
departure. Barajas-Alvarado, 655 F.3d at 1089–90. The BIA
has long established that “[i]n exercising discretion on a
voluntary departure application” an IJ should take into
account both favorable and unfavorable factors. See Matter
of Gamboa, 14 I. & N. Dec. 244, 248 (BIA 1972) (citing
cases). The BIA has consistently maintained this approach.
See Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817
(BIA 1999) (explaining that in deciding whether an alien
warrants “a favorable exercise of discretion” with respect to
pre-conclusion voluntary departure, an IJ should weigh both
favorable and unfavorable equities); see also Matter of Loera,
2011 WL 6962801 (BIA Dec. 8, 2011). Favorable equities
include long residence, close family ties to the United States,
and humanitarian needs. Arguelles-Campos, 22 I. & N. Dec.
at 817; accord Gamboa, 14 I. & N. Dec. at 248; Loera, 2011
WL 6962801. Unfavorable equities include “the nature and
underlying circumstances of the deportation ground at issue;
additional violations of the immigration laws; the existence,
seriousness, and recency of any criminal record; and any
              UNITED STATES V . ROJAS-PEDROZA                       21

other evidence of bad character or the undesirability of the
applicant as a permanent resident.” Arguellos-Campos, 22 I.
& N. Dec. at 817; accord Gamboa, 14 I. & N. Dec. at 248
(noting unfavorable factors “including the alien’s prior
immigration history, the nature of his entry or entries . . . his
violations of the immigration and other laws, and the like”).

    Having identified the relevant factors, we now apply them
to the unique circumstances of Rojas’s case as of 1998.
Barajas-Alvarado, 655 F.3d at 1089. Although Rojas came
to the United States in 1982, there is no evidence that he
continuously resided in this country. To the contrary, Rojas
admits that he lived “off and on” in the United States. At the
1998 hearing, he stated that he had no immediate family who
were United States citizens or residents. The record as of
1998 also showed that Rojas had a number of negative
equities. His immigration history would have reflected two
illegal entries, one in 1982 and a second entry in July 1997,
just one month after his June 1997 removal. In addition,
Rojas had four misdemeanor convictions for driving offenses
between 1994 and 1997, including two convictions for
driving under the influence.

    Based on these factors, it is not plausible that an IJ would
have exercised discretion in Rojas’s favor at his 1998 hearing.
The record showed no positive equities, other than Rojas’s
intermittent stays in the United States.10 By contrast, the
record showed numerous negative equities, including his
illegal entries and convictions. In particular, the BIA has
noted that driving under the influence is a serious negative
factor. Matter of Romero-Reyes, 2010 WL 3780635 (BIA

   10
      Rojas does not claim to have had relatives who were United States
citizens or legal residents in 1998.
22            UNITED STATES V . ROJAS-PEDROZA

Sept. 9, 2010); Matter of Butt, 2010 WL 2846348 (BIA June
25, 2010).

    Our review of BIA cases supports the conclusion that
Rojas lacked a plausible case for relief.11 We note that the
BIA has affirmed denials of voluntary departure in a number
of cases in which the aliens had equities better than or similar
to Rojas’s equities. See, e.g., Matter of Posadas-Posadas,
2012 WL 371659 (BIA Jan. 18, 2012) (affirming a denial of
voluntary departure as a matter of discretion where the alien
was arrested twice for driving on a suspended license and
once for driving under the influence, but had family ties to the
United States); Matter of Martinez-Hernandez, 2011 WL
4446883 (BIA Sept. 6, 2011) (affirming a denial of voluntary
departure as a matter of discretion where the alien had no
criminal history but also no positive equities); Matter of
Herrera-Lopez, 2003 WL 23521816 (BIA Oct. 31, 2003)
(affirming a denial of voluntary departure as a matter of
discretion where the alien had convictions for public
nuisance, domestic battery, and possession of an open
container in a vehicle, and the alien misrepresented his
criminal history to the IJ); Matter of Serna, 20 I. & N. Dec.
579, 580, 586 (BIA 1992) (affirming a denial of voluntary
departure as a matter of discretion where the alien had a
single conviction for the possession of an altered immigration
document, but had been residing in the United States for
seven years and intended to marry a United States citizen
with whom he had a child); Matter of Lemhammad, 20 I. &
N. Dec. 316, 318, 324–26 (BIA 1991) (affirming a denial of


  11
    The BIA reviews an IJ’s exercise of discretion de novo. 8 C.F.R.
§§ 1003.1(d)(3)(i), (ii); Matter of A-S-B-, 24 I. & N. Dec. 493, 496–97
(BIA 2008), abrogated on other grounds by Huang v. Attorney Gen.,
620 F.3d 372 (3d Cir. 2010).
            UNITED STATES V . ROJAS-PEDROZA                 23

voluntary departure as a matter of discretion where the alien
had accepted money to take the exams of three college
students and had a single assault conviction that resulted in a
two day jail sentence, but had a United States citizen brother,
desired to complete his education in the United States, and
had entered the United States legally).

    In cases where the BIA reversed a denial of voluntary
departure, the aliens’ equities were more favorable to them
than Rojas’s. See, e.g., Matter of Hernandez-Mata, 2010 WL
4500914 (BIA Oct. 18, 2010) (reversing a denial of voluntary
departure where the alien was arrested for intoxication, but
had two United States citizen children and other family in the
United States); Matter of Maldonado-Hernandez, 2010 WL
4509754 (BIA Oct. 22, 2010) (reversing a denial of voluntary
departure when the alien was 19 years old, had lived in
United States for ten years, and had no criminal record);
Matter of Hernandez-Garcia, 2012 WL 1705671 (BIA Apr.
11, 2012) (reversing a denial of voluntary departure where the
alien impersonated a United States citizen in attempt to
procure a passport, but whose spouse and child were United
States citizens).

    Although Rojas points to cases in which aliens with
serious criminal histories received voluntary departure, those
cases involved aliens with significant family ties and other
positive equities that Rojas lacks. For example, in Matter of
Gonzales-Figeroa, 2006 WL 729784 (BIA Feb. 10, 2006), an
alien with multiple assault convictions was granted voluntary
departure. But in addition to a long history in the United
States, the alien in Gonzalez-Figeroa also had a sister and
two nieces who were United States citizens, a mother who
was a permanent resident (whom the alien helped with rent
and medical expenses), no other adverse immigration history,
24           UNITED STATES V . ROJAS-PEDROZA

and a pending visa application. Id. Similarly, in Matter of
Battista, 19 I. & N. Dec. 484 (BIA 1987), an alien convicted
of breaking and entering, grand theft, and possession of
criminal tools was granted voluntary departure, but he had a
United States citizen spouse who was pregnant at the time of
the deportation hearing, United States citizen parents, and
United States citizen siblings.

    Indeed, the history of this very case confirms our
conclusion that Rojas did not have a plausible claim for
voluntary departure in 1998. In June 1997, the IJ declined to
grant Rojas voluntary departure even though the IJ was not
aware of Rojas’s criminal history and Rojas had only one
illegal entry at the time. By the 1998 hearing, Rojas had an
additional illegal entry, which occurred in July 1997. Given
that the first IJ declined to grant Rojas voluntary departure, it
is not plausible that the second IJ, after learning of Rojas’s
additional unfavorable equities, would have granted Rojas
voluntary departure in 1998.

    In short, when considered in light of the relevant factors,
Rojas’s equities would not have caused an IJ to grant him
voluntary departure in 1998. Therefore, we conclude that
Rojas failed to carry his burden of establishing plausible
grounds for relief. For this reason, Rojas has failed to show
he suffered prejudice as a result of the IJ not informing him
of the availability of pre-conclusion voluntary departure.
Because Rojas was not prejudiced, the 1998 removal order
was not “fundamentally unfair,” and he cannot satisfy
§ 1326(d)(3). See Ubaldo-Figueroa, 364 F.3d at 1048.
Accordingly, the district court did not err in rejecting Rojas’s
motion to dismiss the § 1326(b) charge in the indictment.
            UNITED STATES V . ROJAS-PEDROZA                25

                              B

    We now turn to Rojas’s challenge to the district court’s
denial of his motion in limine to bar the admission of several
statements contained in documents from his A-file. He
contends that these statements were testimonial and were thus
admitted in violation of the Confrontation Clause of the Sixth
Amendment. We review the district court’s admission of the
challenged statements de novo. United States v. Nguyen,
565 F.3d 668, 673 (9th Cir. 2009).

                              1

    The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const.
amend. VI. This means that testimonial statements are
inadmissible in criminal prosecutions unless the declarant is
unavailable and the defendant had a prior opportunity to
cross-examine the declarant. Crawford v. Washington,
541 U.S. 36, 59 (2004). A statement is testimonial when it is
“made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310 (2009) (internal quotation
marks omitted). Applying this principle to records in an
alien’s A-file, we have explained that the “mere possibility”
that a record “could be used in a later criminal prosecution”
does not render it testimonial. United States v. Orozco-
Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010). Rather, there
must be some additional showing that the primary purpose of
the document is for use in litigation. See id. The “primary
purpose” of a statement is determined objectively. Michigan
v. Bryant, 131 S. Ct. 1143, 1156 (2011). Thus, “the relevant
26          UNITED STATES V . ROJAS-PEDROZA

inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the
purpose that reasonable participants would have had, as
ascertained from the individuals’ statements and actions and
the circumstances in which the encounter occurred.” Id.

    In Orozco-Acosta, we held that warrants of removal are
“not made in anticipation of litigation” but are prepared to
record the movements of aliens. 607 F.3d at 1163. We have
since extended Orozco-Acosta to a number of other A-file
documents, concluding that they are likewise not made in
anticipation of litigation and thus are non-testimonial. See
United States v. Valdovinos-Mendez, 641 F.3d 1031,
1034–35, 1034 n.3 (9th Cir. 2011) (holding that the Warrant
of Removal, Warning to Alien Ordered Deported, and Order
from the Immigration Judge, were non-testimonial).

    Rojas contends that Orozco-Acosta’s approach is
inconsistent with the Supreme Court’s subsequent decisions
in Bryant and Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011). According to Rojas, Orozco-Acosta erroneously (1)
applied a subjective test to decide whether A-file documents
are prepared in anticipation of litigation; (2) failed to take
into account the formal context in which immigration records
are prepared; and (3) improperly focused on the testimonial
status of the documents as a whole. We consider each of
these arguments in turn.

    First, Rojas claims that because Bryant and Bullcoming
prescribe an objective test to determining whether documents
are prepared in anticipation of litigation, they overruled
Orozco-Acosta, which, in his view, adopted a subjective test.
We disagree, because Orozco-Acosta applied the correct
objective approach to determining the status of A-file
             UNITED STATES V . ROJAS-PEDROZA                  27

documents. As we explained in Orozco-Acosta, because “[a]
warrant of removal must be prepared in every case resulting
in a final order of removal” and only “a small fraction of
these warrants ultimately are used in immigration
prosecutions,” 607 F.3d at 1163–64, “‘[w]arrants of
deportation are produced under circumstances objectively
indicating that their primary purpose is to maintain records
concerning the movements of aliens and to ensure compliance
with orders of deportation, not to prove facts for use in future
criminal prosecutions.’” Id. at 1164 (emphasis added)
(quoting United States v. Torres-Villalobos, 487 F.3d 607,
613 (8th Cir. 2007)).

    Second, Rojas argues that Bryant and Bullcoming
established a new rule that supersedes Orozco-Acosta’s
approach: that courts should consider the formality of the
circumstances in which a statement was made in determining
whether its primary purpose was testimonial. Rojas is
incorrect, because the Court’s focus on the formality of a
statement as part of its Confrontation Clause analysis is
longstanding, and was taken into account by Orozco-Acosta.
Since Crawford, the Supreme Court has noted that the
formality of a statement is a relevant factor in determining
whether the statement is testimonial. Crawford, 541 U.S. at
51 (“An accuser who makes a formal statement to
government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not.”);
see also Davis v. Washington, 547 U.S. 813, 827–28 (2006)
(explaining that formality is one factor that can be relevant to
determining a statement’s primary purpose). Bryant and
Bullcoming reaffirmed this approach, but did not hold that a
statement’s formality, standing alone, is sufficient to establish
that the statement is testimonial. See Bullcoming, 131 S. Ct.
at 2717; Bryant, 131 S. Ct. at 1160. Orozco-Acosta
28          UNITED STATES V . ROJAS-PEDROZA

acknowledged Crawford’s holding that “the ‘core class’ of
testimonial statements” includes both formal and informal
statements, 607 F.3d at 1160 (quoting Crawford, 541 U.S. at
51–52), and its approach to analyzing the immigration
records at issue is consistent with Bullcoming and Bryant.
We therefore remain bound by its holding. See Miller v.
Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003).

    Finally, Rojas argues that Bullcoming and Bryant require
a statement-by-statement approach to determining whether
there is a Confrontation Clause violation, and claims that
Orozco-Acosta failed to follow this direction. We agree that
the relevant question under the Confrontation Clause is
whether an individual statement is testimonial, not whether an
entire document is testimonial. See Bryant, 131 S. Ct. at
1159–60 (indicating that trial courts should determine when
a series of statements “transition from nontestimonial to
testimonial” and exclude “the portions of any statements that
have become testimonial” (internal quotation marks
omitted)). But when an immigration record is prepared under
circumstances objectively indicating that the primary purpose
of the record is non-testimonial, the ordinary contents of the
record is likewise non-testimonial. As noted in Melendez-
Diaz, “[b]usiness and public records are generally admissible
absent confrontation” because “having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial . . . they are not
testimonial.” 557 U.S. at 324. Unlike the analysts’
certificates in Melendez-Diaz, the immigration records at
issue in Orozco-Acosta were not “prepared specifically for
use at [the defendant’s] trial,” id., and therefore we correctly
determined that the ordinary contents of those records were
non-testimonial. 607 F.3d at 1163. Therefore, we reject this
argument as well.
            UNITED STATES V . ROJAS-PEDROZA                 29

                              2

    We now apply these principles to Rojas’s contention that
the district court erred in admitting statements from records
in his A-file.

    Rojas challenges two statements in the 1998 warrant of
removal: (1) that he entered the United States on December
6, 1991 and (2) that he was subject to removal by order of an
immigration judge. In addition, he objects to “implied
assertions” that the photograph and fingerprint attached to the
warrant belong to him. Because a warrant of removal is not
made in anticipation of criminal litigation, see Orozco-
Acosta, 607 F.3d at 1163, and the statements Rojas challenges
are the ordinary contents of a warrant of removal, we
conclude that they are non-testimonial.

    Rojas also challenges statements contained in the Notice
of Intent/Decision to Reinstate Prior Order. In particular, he
challenges the notice’s statements that he was an unlawfully
admitted alien, that he was subject to removal, that he was
ineligible for relief, and that he was ordered removed to
Mexico.

     Like a warrant of removal, a Notice of Intent/Decision to
Reinstate Prior Order is non-testimonial. Immigration
officers complete these notices to comply with an agency
regulation that requires the government to apprise the alien of
its determination that the alien is removable and to give the
alien an opportunity to contest the government’s
determination. See 8 C.F.R. § 241.8. Thus, although there is
a “possibility,” Orozco-Acosta, 607 F.3d at 1164, that the
contents of these notices could be used in a criminal
prosecution, the objective circumstances indicate that, like
30          UNITED STATES V . ROJAS-PEDROZA

warrants of removal, their primary purpose is to effect
removals, not to prove facts at a criminal trial. See
Melendez-Diaz, 557 U.S. at 324.

    Furthermore, the specific statements that Rojas challenges
are the ordinary contents of a Notice of Intent/Decision to
Reinstate Prior Order. To reinstate a prior removal order, an
immigration officer must determine “[w]hether the alien has
been subject to a prior order of removal,” “whether the alien
is in fact an alien who was previously removed,” and
“[w]hether the alien unlawfully reentered the United States.”
§ 241.8(a). And, as mentioned previously, the government is
required to apprise the alien of this determination and give
the alien an opportunity to contest this determination. Id.
Because the challenged statements are required by regulation
for purposes unrelated to future criminal litigation and
comprise the ordinary contents of this notice, they are not
testimonial.

    Finally, Rojas challenges the IJ’s written order from the
1998 proceedings. We have previously held that the
statements in an IJ’s written order are not non-testimonial,
Valdovinos-Mendez, 641 F.3d at 1034–35, because the orders
are not made in anticipation of future criminal litigation, but
instead are “made to record the IJ’s decision regarding [the
alien’s] deportation.” United States v. Ballesteros- Selinger,
454 F.3d 973, 975 (9th Cir. 2006).

                              C

   We next turn to Rojas’s arguments that the district court
made both procedural and substantive errors in sentencing.
            UNITED STATES V . ROJAS-PEDROZA                 31

                              1

    Rojas contends that the district court erred in denying him
a two-point downward adjustment for acceptance of
responsibility under § 3E1.1(a) of the Sentencing Guidelines.
He claims that the district court failed to acknowledge that he
admitted all the essential elements of the charged offense, and
instead improperly relied on the fact that he exercised his
constitutional right to go to trial. We reject this argument.

    The Sentencing Guidelines provide that a district court
may grant a two-level downward adjustment to a defendant
who “clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). According to the
Guidelines, in determining whether a defendant qualifies for
acceptance of responsibility, a district court may consider the
defendant’s conduct in “truthfully admitting the conduct
comprising the offense(s) of conviction, and truthfully
admitting or not falsely denying any additional relevant
conduct for which the defendant is accountable under § 1B1.3
(Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n.1(A). By
contrast, “a defendant who falsely denies, or frivolously
contests, relevant conduct that the court determines to be true
has acted in a manner inconsistent with acceptance of
responsibility.” Id. “The defendant bears the burden of
showing that he has accepted responsibility for his actions.”
United States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir.
2012).

     Because a defendant’s right to contest his guilt before a
jury is protected by the Constitution, the decision to go to
trial “cannot be held against him.” Id. at 940 (internal
quotation marks omitted). “In rare situations a defendant
may clearly demonstrate an acceptance of responsibility for
32           UNITED STATES V . ROJAS-PEDROZA

his criminal conduct even though he exercises his
constitutional right to a trial.” U.S.S.G. § 3E1.1 cmt. n.2.
Among other things, “a defendant who puts the government
to its proof may still be eligible for a downward adjustment
if, and only if, he has otherwise demonstrated sincere
contrition.” Ramos-Medina, 706 F.3d at 940 (internal
quotation marks omitted). Accordingly, we have reversed a
district court that “mistakenly applied a per se bar against
downward adjustment based on the defendant’s decision to go
to trial.” Id. at 941 (citing United States v. Ochoa-Gaytan,
265 F.3d 837, 844 (9th Cir. 2001)). A district court does not
commit reversible error, however, simply because it notes the
fact that the defendant went to trial, so long as the court bases
its final decision on the facts of the case and record as a
whole. Id. at 941–42. We review for clear error a district
court’s finding that a defendant did not accept responsibility
for his offense. Id. at 936.

    In concluding that Rojas was not entitled to an adjustment
for acceptance of responsibility, the district court noted that
Rojas held the government to its burden of proof. The court
did not, however, suggest that Rojas’s decision to go to trial
meant that a downward adjustment for acceptance of
responsibility was improper per se. Instead, the court
considered other factors, focusing particularly on Rojas’s
cross-examination of the government agent who had
witnessed his removal in April 2010. Rojas argues that the
district court clearly erred in finding that this part of his trial
strategy weighed against acceptance of responsibility.
According to Rojas, the April 2010 removal was not an
element of the § 1326(a) offense, but merely a sentencing
factor under § 1326(b), and therefore the cross-examination
did not constitute a frivolous challenge to relevant conduct.
We disagree. In order to convict Rojas under § 1326(a), the
             UNITED STATES V . ROJAS-PEDROZA                  33

government had to prove beyond a reasonable doubt that
Rojas was removed from the United States. The government
was entitled to prove this element of the offense by
establishing that Rojas was removed in April 2010. See Old
Chief v. United States, 519 U.S. 172, 186 (1997) (holding that
as a general rule, “the prosecution is entitled to prove its case
by evidence of its own choice”). Under the Guidelines, it was
appropriate for the district court to view Rojas’s frivolous
challenge to the evidence supporting an element of the
offense as weighing against acceptance of responsibility.
U.S.S.G. § 3E1.1 cmt. n.1(A). Moreover, the district court
could reasonably determine that Rojas’s frivolous challenge
to his eligibility for a sentencing enhancement under
§ 1326(b) also reflected a lack of “sincere contrition.”
Ramos-Medina, 706 F.3d at 940. This determination is
entitled to “great deference” because the “sentencing judge is
in a unique position to evaluate” such factors. U.S.S.G.
§ 3E1.1 cmt. n.5.

    Because the court did not enunciate a per se rule, but
rather relied on the facts of the case, including Rojas’s
frivolous challenge to evidence of his April 2010 removal, it
was not clearly erroneous for the district court to conclude
that Rojas’s conduct was inconsistent with an acceptance of
responsibility and to deny him a downward adjustment.

                               2

    Rojas also challenges the substantive reasonableness of
his sentence.      He argues that it was substantively
unreasonable for the district court to impose a term of
supervised release as part of his sentence because he would
likely be deported or removed after he served his prison term,
and a proposed amendment to the Sentencing Guidelines,
34             UNITED STATES V . ROJAS-PEDROZA

which was scheduled to take effect a little more than a month
after Rojas’s sentencing, stated that courts “ordinarily should
not impose a term of supervised release in a case in which
supervised release is not required by statute and the defendant
is a deportable alien who will likely be deported after
imprisonment.” U.S.S.G. § 5D1.1(c) (2011). Rojas’s
argument is foreclosed by United States v. Ruiz-Apolonio,
which held that sentencing courts may, but “are not required
to consider” a prospective amendment to the Sentencing
Guidelines, “unless the amendment has been given retroactive
effect by express decision of the [Sentencing] Commission.”
657 F.3d 907, 917–18 (9th Cir. 2011). In this case, there is
no language in the 2011 Sentencing Guidelines suggesting
that the new supervised release provision has retroactive
effect. See U.S.S.G. § 5D1.1(c) (2011); U.S.S.G. app. C, vol.
III, at 407–11 (2011). Accordingly, the district court did not
err in declining to follow the future amendment to the
guidelines language.12

       AFFIRMED.




  12
     Rojas also argues that district court’s revocation of his supervised
release from his 2008 conviction violated Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (holding that any fact, other than that of a prior
conviction, that increases criminal penalties above the statutory maximum
must be proven beyond a reasonable doubt and found by a jury). As he
concedes, United States v. Santana forecloses his argument. 526 F.3d
1257, 1262 (9th Cir. 2008). W e therefore reject it.
