NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50158 Plaintiff-Appellee, D.C. No. 3:16-cr-01328-DMS-1 v. JESUS FELIX-HERAS, MEMORANDUM** Defendant-Appellant.* Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Argued and Submitted February 14, 2019 Pasadena, California Before: FISHER and CALLAHAN, Circuit Judges, and KORMAN,*** District Judge. Jesus Felix-Heras, a citizen of Mexico, attempted to enter the United States using a border entry card that had his photo but listed his name as Hector Francisco Choza Loperena. A border patrol agent took Felix-Heras’s fingerprints and ran them * The Clerk of Court is directed to amend the case caption as set forth above. ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. through a computerized fingerprint database known as IDENT. The system returned a match to the fingerprints in Felix-Heras’s A-file, which contained his immigration history and his photo. He was principally charged and convicted of attempted illegal reentry in violation of 8 U.S.C. § 1326 and sentenced to 46 months on that charge. We affirm his conviction but vacate and remand his sentence in part. 1. To establish that Felix-Heras was not the person named on his proffered identification, the prosecution called David Beers, a fingerprint analyst, who compared Felix-Heras’s fingerprints with those found in his A-file. Felix-Heras contends that Beers’s testimony was not reliable and should have been excluded under Federal Rule of Evidence 702. “[T]he decision to admit or deny expert testimony” is reviewed “for abuse of discretion.” United States v. Reed, 575 F.3d 900, 918 (9th Cir. 2009). In deciding whether to admit testimony, “[t]he test is not the correctness of the expert’s conclusions but the soundness of his methodology.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (internal quotation marks omitted). Felix-Heras’s primary contention is that Beers failed to reliably apply a specific method known as ACE-V. Putting aside the fact that Beers testified that he applied a different methodology known as the “Henry System,” testimony based on “imperfect execution,” as opposed to “faulty methodology,” is admissible; it is 2 simply accorded less weight. United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir. 1994), overruled on other grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 2014); see also City of Pomona, 750 F.3d at 1047. Felix-Heras does not allege that either the Henry System or ACE-V are unreliable; he only criticizes Beers’s application. Thus, the district court did not abuse its discretion. 2. Felix-Heras also challenges the admission of the IDENT search results. IDENT is a digital database capable of comparing fingerprints. Felix-Heras claims that because the database search was akin to a manual ...
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