V MATEO MENDEZ
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of California
John S. Rhoades, District Judge, Presiding
Argued and Submitted
April 5, 2000--Pasadena, California
Filed June 21, 2000
Before: Stephen Reinhardt and Diarmuid F. O'Scannlain,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge O'Scannlain
*The Honorable William W Schwarzer, Senior United States
Judge for the Northern District of California, sitting
Leslie S. Daniels (argued), Federal Defenders of San
Inc., San Diego, California, for the
Bruce R. Castetter and Kevin J. Kelly (argued),
United States Attorneys, San Diego, California, for the
O'SCANNLAIN, Circuit Judge:
We must decide whether a "Certificate of
Record" issued on behalf of the Attorney General
priately admitted into a criminal trial for illegal
reentry by an
alien as evidence of lack of permission despite the fact
the document was not executed by an officer to whom the
Attorney General had expressly delegated such authority.
On July 6, 1998, an agent of the U.S. Border Patrol who
was patrolling near Jamul, California, discovered
Mateo-Mendez ("Mateo") and two other
under a large pipe under the road. Border patrol agents
checkpoint to which Mateo was taken discovered that
had an extensive criminal history, including prior
for rape and burglary, and had been previously deported.
Mateo admitted at that time that he was an illegal alien
that he had entered without inspection the day before.
One week later, Mateo was indicted on one count of
reentry in violation of 8 U.S.C. S 1326. At Mateo's jury
the government offered a "Certificate of
Record" ("CNER"), executed on July 23,
1998, by Karen A.
Malveaux Joy. Joy certified that she was a
lyst" in the "Records Services Branch, Office
of Records" of
the Immigration and Naturalization Service
("INS"), that she
was authorized under Section 290(d) of the Immigration
Nationality Act and 8 C.F.R. S 103.7(d)(4)"to
certify the non-
existence in the records of the [INS] of an official . .
pertaining to a specified person or subject," and
that she had
failed to discover any "evidence of the filing of
for permission to reapply for admission to the United
from Mateo. This CNER, the parties agree, bore both the
nature of Ms. Malveaux Joy and the seal of the INS.
objected to the admission of the CNER, however, on the
ground, among others, that it had not been properly
cated because the individual who executed the CNER was
among the class of individuals to whom the Attorney
had expressly delegated the authority to make such a
tion. The district court overruled Mateo's objections,
Mateo was convicted.
The district court granted a two-level downward
to Mateo for acceptance of responsibility pursuant to
3E1.1(a) of the United States Sentencing Guidelines
("U.S.S.G.") because Mateo "timely
information to the government concerning his own
ment in the offense." The district court concluded
departure left Mateo with an offense level of twenty-two
sentenced Mateo to a prison term of ninety-four months.
Mateo timely appealed both his conviction and his sen-
tence. He argues, first, that the CNER should not have
admitted and thus that there was insufficient evidence
port his conviction of illegal reentry and, second, that
trict court erred in failing to reduce his sentence with
additional one-level downward departure under U.S.S.G.
We first address Mateo's assertion that the CNER should
not have been admitted into evidence at his trial. The
differ on the standard under which this court should
the district court's admission of the CNER. Mateo,
United States v. Walker, 117 F.3d 417, 419 (9th Cir.
("The District Court's construction or
interpretation of the
Federal Rules of Evidence is a question of law subject
novo review."), contends that the appropriate
standard is de
novo. The government, however, relies on our decision in
United States v. Wood, 943 F.2d 1048, 1055 (9th Cir.
and contends that we should review the district court's
only for an abuse of discretion.
In United States v. Owens, 789 F.2d 750, 753 (9th Cir.
1986), rev'd on other grounds, 484 U.S. 554 (1988), we
emphasized that the selection of the applicable standard
review is contextual: The de novo standard applies when
issues of law predominate in the district court's
analysis, and the abuse-of-discretion standard applies
the inquiry is "essentially factual."
The district court's
construction of the Federal Rules
of Evidence is a question
of law subject to de novo
review. Questions of
admissibility of evidence which
determinations, rather than questions
of law, are reviewed for
abuse of discretion. When
a mixed question of law
and fact is presented, the
standard of review turns
on whether factual matters
or legal matters
predominate. If an "essentially factu-
al" inquiry is
present, or if the exercise of the district
court's discretion is
determinative, then we give def-
erence to the decision of
the district court; otherwise,
we conduct a de novo
Id. (citations omitted); see also United States v. Chu
Yin, 935 F.2d 990, 994 (9th Cir. 1991) (quoting Owens).
In the evidentiary ruling that is the subject of the
appeal, neither party raises a substantial issue
pertaining to the
existence or characterization of facts, and the district
not seem to rely on any controverted (or credibly
ible) facts in rendering its decision. The issue is thus
of law, and the standard of review is thus de novo.
 Mateo was indicted and tried for violating 8 U.S.C.
S 1326. That provision makes it a criminal offense
by up to ten years in prison for a person, after his
from the United States, either to be found or to attempt
enter therein "without the permission of the
al." 8 U.S.C. S 1326(b)(3)-(4). "To establish
a case of
attempted illegal reentry after deportation, the
must prove that the Attorney General had not consented
alien's application for reentry." United States v.
Gallegos, _______ F.3d _______, _______, 1999 WL 635749
at *4 (9th Cir.
Aug. 23, 1999). In order to carry its burden, the
introduced the CNER.
Mateo argues that the CNER should not have been admit-
ted and thus that the government has failed to introduce
cient evidence to support his conviction. Mateo
objects to the admission of the CNER because it was not
properly authenticated pursuant to Fed. R. Evid. 902 and
was admitted despite failing to comply with the
of Fed. R. Evid. 803 (hearsay) and 401 (relevance) and
Confrontation Clause of the Sixth Amendment.
 Notwithstanding the variety of his objections, Mateo
concedes that his argument hinges in full on the alleged
authentication failure. At any rate, it is plain that
other objections are weightless in the face of the
admission of the CNER as a public document under seal
suant to Rule 902.
 With regard to the hearsay objection, Rule 803
expressly provides, inter alia, that "a
certification in accor-
dance with Rule 902 . . . that diligent search failed to
the record" offered for the purpose of "prov[ing]
of [the] record" is "not excluded by the
hearsay rule." Fed. R.
Evid. 803.10. Mateo argues that Rule 803.10 (which
only compliance with Rule 902) imports requirements of
"trustworthiness" and "duty imposed by
law " from Rule
803.8 (which addresses not official certifications of
absence of public records but public records
Neither legal authority nor logic supports Mateo's
analogize the subjects of Rule 803.10 and Rule 803.8.
relies on two observations: (1) both rules contain the
"public record[ ]" and (2) both "are
premised on the principles
of necessity and trustworthiness." Neither of these
tions, however, compels reliance on factors listed under
803.8 in determining the admissibility of documents that
isfy Rule 803.10. The fact that Rule 803.10 shares a
with Rule 803.8 cannot sensibly be understood to
the plain meaning of Rule 803.10, and nothing in the
tion that Rule 803.10 derives from concern for
ness" supports the inference that the documents
admission that rule allows must be found
precisely the same bases that Rule 803.8 contemplates.
CNER satisfies Rule 902, it satisfies ipso facto the
to the hearsay rule in Rule 803.10.
 Regarding Mateo's relevance objection, our decision
Blancos-Gallegos, _______ F.3d at _______, indicating
that a CNER
from the INS is sufficient evidence to support a jury's
sion that the Attorney General has not consented to an
reentry, rebuts Mateo's argument that the CNER is not
vant" under Rule 401. That rule indicates that
"relevant" if it enhances the probability
"of any fact that is of
consequence to the determination of the action."
CNER must satisfy this standard if, as settled in
Gallegos, it is adequate to support a jury's inference
of a fact
that is the subject of a sufficiency-of-the-evidence
Regarding Mateo's Confrontation Clause claim, it has not
been briefed or argued by Mateo but merely asserted in
clusory terms. "We `will not ordinarily consider
appeal that are not specifically and distinctly argued
lant's opening brief,' " Riverside-Linden
Investment Co. v.
Crake, 945 F.2d 320, 324 (9th Cir. 1991), and we decline
do so here.
We limit our analysis, therefore, to whether the
court erred in concluding that the CNER satisfied the
ments for authentication under Rule 902.
 Rule 902 provides for the self-authentication of
forms of documentary evidence. Relevant to the CNER, the
of authenticity as a condition
admissibility is not required with
respect to the following:
(1) Domestic public
documents under seal. A
document bearing a seal
purporting to be that of the
United States . . . or of
a political subdivision,
department, officer, or
agency thereof, and a signa-
ture purporting to be an
attestation or execution.
Fed. R. Evid. 902. Under the plain meaning of this
then, a document may not be excluded for lack of
tion if it meets two criteria. First, the document must
seal. No party disputes that the CNER was under seal,
thus the CNER appears to satisfy this criterion. Second,
document must bear "a signature purporting to be an
tion." The CNER clearly bears the signature of
Malveaux Joy, and, although the signature is not labeled
"attestation," it appears under a statement
that the same per-
son does "certify to the following." The word
"[t]o attest as being true." See Black's Law
(7th ed. 1999) (emphasis added). Hence, the signature on
CNER does "purport[ ] to be an attestation,"
and thus satisfies
the second criterion. On its face, then, the CNER
with Rule 902(1) and satisfies Rule 902 as a whole.
Mateo argues, however, that the authentication is
because Joy is not authorized (despite her certification
contrary) to issue a CNER. Mateo cites 8 U.S.C.S 1360(d)
and 8 C.F.R. S 103.7(d)(4). The first of these
central file; information from
other departments and
(d) A written
certification signed by the Attorney
General or by any officer
of the [INS] designated by
the Attorney General to
make such certification, that
after diligent search no
record or entry of a specified
nature is found to exist
in the records of the [INS],
shall be admissible as
evidence in any proceeding as
evidence that the records
of the [INS] contain no
such record or entry . .
8 U.S.C. S 1360. Mateo argues that, because the Attorney
General neither herself certified the information in the
nor designated Joy to certify the information, Joy
authority to attest to or execute the CNER. The
does not dispute that Joy may lack this authority, for
officer of the "Record Services Branch" of the
INS) she falls
outside the scope of the Attorney General's designation
certification authority in the relevant regulation:
(d) Authority to
certify records. Whenever autho-
rized under 5 U.S.C. 552
or any other law to furnish
information from records
to persons entitled thereto,
the following officials,
or their designees authorized
in writing as specified
below, have authority to make
. . . .
(4) The Assistant
Commissioner, Records Sys-
tems Division, the
Director, Records Management
Branch, or the Chief,
Records Operations Section,
Central Office, or their
designee, authorized in writ-
ing to make certification
in their absence--the non-
existence of an official
8 C.F.R. S 103.7.1
 The flaw in Mateo's argument regarding authority
under 8 U.S.C. S 1360(d) and 8 C.F.R. S 103.7 is that
902(1) does not require that a delegation of authority
certifications be apparent in those provisions (or in
provision of law). Indeed, the language of Rule 902
1 The CNER was entered with another document under seal
that Joy does indeed have the authority to execute
CNERs, but the officer
who executed that certification, Ruth E. Jones, Chief of
the Record Ser-
vices Branch of the INS, also appears to lack any
delegation of authority
to make such certifications on behalf of the Attorney
the contrary. Rule 902(2) indicates that domestic public
ments that are not under seal will be
if they bear the purported signature of a governmental
acting "in the official capacity of [such] an
officer" and that
signature is certified under seal by a governmental
who attests that "the signer has the official
capacity." Fed. R.
Evid. 902(2). Because Rule 902 clearly indicates when a
ument must be executed by a governmental officer acting
his or her "official capacity" in subsection 2
but does not indi-
cate as much in the prior subsection, subsection 1 must
require any extrinsic evidence that the purported
made thereunder be by someone acting in his or her
capacity." Hence, Joy's lack of authority under the
relied upon by Mateo cannot defeat the
her CNER under Rule 902(1). The same conclusion is
by contrasting the lack of any requirement for official
ity or authority in subsection 1 with subsection 4,
lates that certifications of copies of public records
made by the actual custodian of the originals "or
authorized to make certification." Fed. R. Evid.
The result of this conclusion is that the provisions
which Mateo relies are irrelevant in this context.
tion 1360(d) specifically provides for the admissibility
uments such as CNERs only if they are "signed by
Attorney General or by any officer of the [INS ]
the Attorney General to make such certification, "
S 1360(d), the same documents are admissible under Rule
902(1) regardless of whether they are signed by the
General or his designate. Such was the intended effect
902(1), which was meant to generalize and to supersede,
28 U.S.C. S 2072(b), the "[m]ore than 50 provisions
cial notice of official seals [that were] contained in
States Code" when the rule was promulgated in 1972.
Evid. 902 advisory committee's note to paragraph (1)
Because the CNER at issue in this case satisfied the two
criteria required on the face of Rule 902(1), the
properly ruled that the CNER was self-authenticating and
admitted the document into evidence. We must therefore
reject Mateo's claim that there was insufficient
support his conviction for illegal reentry.
 Mateo also argues that the district court erred in
awarding another one-level downward departure under
U.S.S.G. S 3E1.1(b) for acceptance of responsibility.
tion (a) calls for a two-level reduction "[i]f the
clearly demonstrates acceptance of responsibility for
offense." U.S.S.G. S 3E1.1(a). Subsection (b)
one-level downward departure beyond that given under
section (a) if "the defendant has assisted
authorities in the
investigation or prosecution of his own misconduct by
one or more of the following steps: (1) timely providing
plete information to the government concerning his own
involvement in the offense." U.S.S.G. S 3E1.1(b).
We agree with Mateo that the reasons cited by the court
the two-level reduction under subsection (a) satisfy the
criteria for the additional one-level reduction under
S 3E1.1(b)(1). The court stated:
[Y]ou can give a minus
two if the defendant timely
information to the Government
concerning his own
involvement in the offense. I
believe he did that, so
I'll give him a minus two.
We have held before that a defendant's entitlement to a
point under U.S.S.G. S 3E1.1(b) depends only on
the confession was complete and timely."
_______ F.3d at _______.
The government thus correctly concedes that the district
court erred in denying the downward departure under
U.S.S.G. S 3E1.1(b)(1). Nevertheless, the government
that we should remand Mateo's case for sentencing anew
light of the "somewhat ambiguous nature of the
government does not specify what is "somewhat
about the record, and the district court's factual
the timeliness and completeness of Mateo's confession
unequivocal. There is thus no basis for resentencing
See id.; United States v. Stoops, 25 F.3d 820, 823 (9th
 Because the district court plainly found that
confession was both timely and complete, we reverse the
court's denial of an additional one-level reduction
U.S.S.G. S 3E1.1(b)(1).
AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings not inconsistent with
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