Case: 19-10845 Date Filed: 12/06/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10845 Non-Argument Calendar ________________________
D.C. Docket No. 3:18-cr-00132-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ANTONIO PANTALEON-AVILES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(December 6, 2019)
Before JILL PRYOR, TJOFLAT, and EDMONDSON, Circuit Judges. Case: 19-10845 Date Filed: 12/06/2019 Page: 2 of 8
PER CURIAM:
Defendant Pablo Pantaleon-Aviles appeals his conviction and his above-
guidelines 300-day sentence for illegal re-entry into the United States, in violation
of 8 U.S.C. § 1326(a). No reversible error has been shown; we affirm.
I.
To obtain a conviction for illegal re-entry by an alien, the government must
prove beyond a reasonable doubt that the defendant (1) is an alien, (2) had been
deported previously, (3) was found in the United States voluntarily, and (4) had no
permission to re-enter. See 8 U.S.C. § 1326(a). That Defendant -- a native and
citizen of Mexico -- is an alien who was found in the United States without having
sought or received permission to re-enter is undisputed. The chief issue at trial was
whether Defendant had in fact been removed physically from the United States
after Defendant was ordered removed in 2002.
At trial, the government introduced into evidence documents from
Defendant’s Alien File, including a Form I-205 Warrant of Removal/Deportation
dated April 2002 (“2002 Warrant”). The 2002 Warrant identified Defendant as the
person to be removed from the United States and was signed by two officials with
2 Case: 19-10845 Date Filed: 12/06/2019 Page: 3 of 8
the former United States Immigration and Naturalization Service (“INS”). One
INS official purported to have witnessed Defendant’s actual physical departure
from El Paso, Texas to Mexico on 11 April 2002; the other INS official “verified”
Defendant’s departure.
At trial, a deportation officer with the United States Immigration and
Customs Enforcement (“ICE”) testified that a warrant of removal must be
completed by an officer who witnesses personally the person leave the United
States and, thus, serves as confirmation that the person was in fact removed from
the country. The testifying ICE officer, however, did not witness personally
Defendant’s departure from the United States in 2002.
On appeal, Defendant first contends that the introduction of the 2002
Warrant violated his Sixth Amendment right to confrontation. We reject this
argument as foreclosed by this Court’s binding precedent. See United States v.
Cantellano, 430 F.3d 1142, 1145-46 (11th Cir. 2005) (concluding that a warrant of
deportation is non-testimonial and, thus, is not subject to confrontation under the
Sixth Amendment).
Defendant next challenges the sufficiency of the evidence proving that
Defendant was actually removed physically from the United States in 2002. We
review de novo the sufficiency of evidence to support a conviction. United States
v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018). In determining the sufficiency of
3 Case: 19-10845 Date Filed: 12/06/2019 Page: 4 of 8
the evidence, we “view the evidence in the light most favorable to the government
and draw all reasonable inferences and credibility choices in favor of the jury’s
verdict.” Id. We cannot overturn a jury’s verdict unless no “reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299,
1303 (11th Cir. 2013).
Viewing the evidence in the light most favorable to the government and
making all reasonable inferences in favor of the jury verdict, the government
proved beyond a reasonable doubt that Defendant was removed previously from
the United States. Based on the evidence presented at trial -- including the 2002
Warrant and the ICE officer’s testimony -- the jury could have determined
reasonably that Defendant in fact left the United States and entered Mexico on 11
April 2002. This evidence was thus sufficient to permit the jury to conclude that
Defendant was guilty beyond a reasonable doubt of illegal re-entry.
II.
Defendant next contends that the district court abused its discretion in
admitting evidence of Defendant’s 17 prior voluntary returns to Mexico between
1995 and 2001: all of which occurred before Defendant was ordered removed in
4 Case: 19-10845 Date Filed: 12/06/2019 Page: 5 of 8
April 2002. Defendant contends the introduction of this evidence was cumulative
and unduly prejudicial under Fed. R. Evid. 403.
We review for abuse-of-discretion a district court’s evidentiary rulings.
United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). A district court “may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. We have said, however, that “Rule 403 is an extraordinary
remedy which the district court should invoke sparingly.” Dodds, 347 F.3d at 897
(quotations omitted). In considering admissibility under Rule 403, we view “the
evidence in a light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact.” Id. We will find abuse of discretion
only if the district court’s decision to admit evidence over a Rule 403 challenge is
“unsupportable.” United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003).
The district court abused no discretion in allowing the government to
introduce evidence of Defendant’s prior voluntary departures. The evidence
showed that Defendant knew of his status as an alien and knew that he was not
permitted to be in the United States without authorization. This evidence was
probative of Defendant’s intent and motive to re-enter unlawfully the United States
after Defendant was ordered removed. We reject Defendant’s argument that the
evidence was unnecessarily cumulative given Defendant’s concession that he was
5 Case: 19-10845 Date Filed: 12/06/2019 Page: 6 of 8
a native of Mexico and was in the United States without permission. Typically,
“the prosecution is entitled to prove its case by evidence of its own choice” and “a
criminal defendant may not stipulate or admit his way out of the full evidentiary
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Case: 19-10845 Date Filed: 12/06/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10845 Non-Argument Calendar ________________________
D.C. Docket No. 3:18-cr-00132-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ANTONIO PANTALEON-AVILES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(December 6, 2019)
Before JILL PRYOR, TJOFLAT, and EDMONDSON, Circuit Judges. Case: 19-10845 Date Filed: 12/06/2019 Page: 2 of 8
PER CURIAM:
Defendant Pablo Pantaleon-Aviles appeals his conviction and his above-
guidelines 300-day sentence for illegal re-entry into the United States, in violation
of 8 U.S.C. § 1326(a). No reversible error has been shown; we affirm.
I.
To obtain a conviction for illegal re-entry by an alien, the government must
prove beyond a reasonable doubt that the defendant (1) is an alien, (2) had been
deported previously, (3) was found in the United States voluntarily, and (4) had no
permission to re-enter. See 8 U.S.C. § 1326(a). That Defendant -- a native and
citizen of Mexico -- is an alien who was found in the United States without having
sought or received permission to re-enter is undisputed. The chief issue at trial was
whether Defendant had in fact been removed physically from the United States
after Defendant was ordered removed in 2002.
At trial, the government introduced into evidence documents from
Defendant’s Alien File, including a Form I-205 Warrant of Removal/Deportation
dated April 2002 (“2002 Warrant”). The 2002 Warrant identified Defendant as the
person to be removed from the United States and was signed by two officials with
2 Case: 19-10845 Date Filed: 12/06/2019 Page: 3 of 8
the former United States Immigration and Naturalization Service (“INS”). One
INS official purported to have witnessed Defendant’s actual physical departure
from El Paso, Texas to Mexico on 11 April 2002; the other INS official “verified”
Defendant’s departure.
At trial, a deportation officer with the United States Immigration and
Customs Enforcement (“ICE”) testified that a warrant of removal must be
completed by an officer who witnesses personally the person leave the United
States and, thus, serves as confirmation that the person was in fact removed from
the country. The testifying ICE officer, however, did not witness personally
Defendant’s departure from the United States in 2002.
On appeal, Defendant first contends that the introduction of the 2002
Warrant violated his Sixth Amendment right to confrontation. We reject this
argument as foreclosed by this Court’s binding precedent. See United States v.
Cantellano, 430 F.3d 1142, 1145-46 (11th Cir. 2005) (concluding that a warrant of
deportation is non-testimonial and, thus, is not subject to confrontation under the
Sixth Amendment).
Defendant next challenges the sufficiency of the evidence proving that
Defendant was actually removed physically from the United States in 2002. We
review de novo the sufficiency of evidence to support a conviction. United States
v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018). In determining the sufficiency of
3 Case: 19-10845 Date Filed: 12/06/2019 Page: 4 of 8
the evidence, we “view the evidence in the light most favorable to the government
and draw all reasonable inferences and credibility choices in favor of the jury’s
verdict.” Id. We cannot overturn a jury’s verdict unless no “reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299,
1303 (11th Cir. 2013).
Viewing the evidence in the light most favorable to the government and
making all reasonable inferences in favor of the jury verdict, the government
proved beyond a reasonable doubt that Defendant was removed previously from
the United States. Based on the evidence presented at trial -- including the 2002
Warrant and the ICE officer’s testimony -- the jury could have determined
reasonably that Defendant in fact left the United States and entered Mexico on 11
April 2002. This evidence was thus sufficient to permit the jury to conclude that
Defendant was guilty beyond a reasonable doubt of illegal re-entry.
II.
Defendant next contends that the district court abused its discretion in
admitting evidence of Defendant’s 17 prior voluntary returns to Mexico between
1995 and 2001: all of which occurred before Defendant was ordered removed in
4 Case: 19-10845 Date Filed: 12/06/2019 Page: 5 of 8
April 2002. Defendant contends the introduction of this evidence was cumulative
and unduly prejudicial under Fed. R. Evid. 403.
We review for abuse-of-discretion a district court’s evidentiary rulings.
United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). A district court “may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. We have said, however, that “Rule 403 is an extraordinary
remedy which the district court should invoke sparingly.” Dodds, 347 F.3d at 897
(quotations omitted). In considering admissibility under Rule 403, we view “the
evidence in a light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact.” Id. We will find abuse of discretion
only if the district court’s decision to admit evidence over a Rule 403 challenge is
“unsupportable.” United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003).
The district court abused no discretion in allowing the government to
introduce evidence of Defendant’s prior voluntary departures. The evidence
showed that Defendant knew of his status as an alien and knew that he was not
permitted to be in the United States without authorization. This evidence was
probative of Defendant’s intent and motive to re-enter unlawfully the United States
after Defendant was ordered removed. We reject Defendant’s argument that the
evidence was unnecessarily cumulative given Defendant’s concession that he was
5 Case: 19-10845 Date Filed: 12/06/2019 Page: 6 of 8
a native of Mexico and was in the United States without permission. Typically,
“the prosecution is entitled to prove its case by evidence of its own choice” and “a
criminal defendant may not stipulate or admit his way out of the full evidentiary
force of the case as the Government chooses to present it.” Old Chief v. United
States, 519 U.S. 172, 186-87 (1997).
We cannot say that the risk of unfair prejudice outweighed the probative
value of the evidence or say that the district court’s evidentiary ruling was
“unsupportable.” The district court abused no discretion in allowing the
government to introduce evidence of Defendant’s prior voluntary departures.
III.
Defendant next challenges the substantive reasonableness of his sentence.
The district court sentenced Defendant to a term of time served, which was 300
days: a sentence that exceeded Defendant’s guidelines range of zero to six months’
imprisonment.
We review the substantive reasonableness of a sentence -- whether inside or
outside the guidelines range -- under a deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). The party challenging the sentence
bears the burden of showing that the sentence is unreasonable in the light of the
6 Case: 19-10845 Date Filed: 12/06/2019 Page: 7 of 8
record and the 18 U.S.C. § 3553(a) factors. United States v. Pugh, 515 F.3d 1179,
1189 (11th Cir. 2008).
When a sentence is above the guidelines range, we “may consider the
deviation, but must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance.” United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation omitted). “We may
vacate a sentence because of the variance only if we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted). “The weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
Defendant has failed to show that his above-guidelines sentence was
substantively unreasonable. As an initial matter, Defendant’s sentence of 300 days
is well below the statutory maximum sentence of 24 months. See United States v.
Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006) (affirming an upward variance in
part because the ultimate sentence was appreciably below the statutory maximum
sentence).
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The district court explained that an above-guidelines sentence was necessary
in the light of the nature and circumstances of the offense, Defendant’s history and
characteristics, and the need to promote respect for the law, provide just
punishment, and to provide adequate deterrence. The district court described
Defendant’s “vast disrespect” for the laws of the United States, as evidenced by
Defendant’s history of repeated unlawful entries. The district court also
considered evidence that Defendant remained undeterred despite having served a
150-day sentence for an earlier misdemeanor charge for unlawful entry. Viewing
the record as a whole, we cannot say that Defendant’s 300-day time-served
sentence was unreasonable or that the district court committed a clear error of
judgment in determining that an above-guidelines sentence was warranted.
AFFIRMED.