                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 20 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50547

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00427-IEG-1

  v.
                                                 MEMORANDUM *
MANUEL LOMA-TORRES,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted December 10, 2010
                               Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       Manuel Loma-Torres appeals his conviction and sentence for illegal reentry

after removal in violation of 8 U.S.C. § 1326(b). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Deputy Garcia’s initial stop of Loma-Torres was supported by a reasonable

suspicion that Loma-Torres was in the country illegally. Loma-Torres was

thoroughly muddy and looked as though he had been walking through the fields, it

was raining and there were no field workers or vehicles around, and the area was

highly trafficked by illegal aliens. See United States v. Lopez-Soto, 205 F.3d

1101, 1105 (9th Cir. 2000) (reasonable suspicion exists if “specific, articulable

facts . . . together with objective and reasonable inferences” suggest that an

individual is engaged in criminal activity (internal quotation marks omitted)).

      Loma-Torres also argues that the officers lacked probable cause to arrest

him and, as a result, that everything the officers learned about him should have

been suppressed. This argument is without merit; evidence of identity is not

subject to suppression, even if the arrest was illegal. United States v. Orozco-Rico,

589 F.2d 433, 435 (9th Cir. 1978). The same is true for an official file that officers

discover merely as a result of the suspect’s identity. Id.

      The introduction of documents from Loma-Torres’s “A-file” did not violate

the Confrontation Clause. United States v. Orozco-Acosta, 607 F.3d 1156, 1163-

64 (9th Cir. 2010). The documents were admissible under the public records

exception to the rule against hearsay because they were routine, objective




                                           2
recordings of Loma-Torres’s contact with the agency. Fed. R. Evid. 803(8);

United States v. Hernandez-Herrera, 273 F.3d 1213, 1217-18 (9th Cir. 2001).

      Sufficient evidence supported the jury’s finding that Loma-Torres was not a

U.S. citizen. Loma-Torres admitted to Deputy Garcia that he was walking from

Mexico, and Loma-Torres had previously attested under oath that he was a

Mexican citizen. A rational trier of fact could have found beyond a reasonable

doubt that Loma-Torres was an alien. See United States v. Galindo-Gallegos, 244

F.3d 728, 732 (9th Cir. 2001).

      The district court increased Loma-Torres’s statutory maximum sentence

based on a prior conviction. The indictment alleged that Loma-Torres had been

removed “subsequent to December 6, 2006,” and the government put on evidence

at trial that Loma-Torres had in fact been removed in January 2008. Loma-Torres

argues, however, that (1) because the government also introduced evidence of a

removal in March 2006 -- before the date alleged in the indictment -- his sentence

constitutes error under Apprendi v. New Jersey, 530 U.S. 466 (2000), and (2) the

error is structural under United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999).

      These arguments fail because the indictment was facially valid. The

indictment contained all the material elements of a violation of 8 U.S.C. § 1326(b),

including a date of removal. The proof introduced at trial was certainly more


                                          3
complete than the facts alleged in the indictment, as the government introduced

evidence of more than one removal, but the additional evidence did not invalidate

the indictment. No constructive amendment occurred because there was no

“complex of facts [presented at trial] distinctly different from those set forth in the

charging instrument,” nor was the crime charged in the indictment “substantially

altered at trial.” United States v. Shipsey, 363 F.3d 962, 974 (9th Cir. 2004)

(quotation omitted) (alteration in original). Further, there was no variance; the

facts offered at trial were not “materially different” from those alleged in the

indictment. Id. Finally, even if the court committed error by allowing the

introduction of the earlier removal, any such error would be harmless. Both

removals considered by the jury occurred long after Loma-Torres’s 1993

conviction. See Jones v. Smith, 231 F.3d 1227, 1232 (9th Cir. 2000) (variances are

subject to harmless error analysis).

      AFFIRMED.




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