FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-50396
                Plaintiff-Appellee,           D.C. No.
               v.
                                         CR-06-00203-JAH-1
COSME MEDINA-VILLA, also known              ORDER AND
as Cosme Medina-Maella,                      AMENDED
             Defendant-Appellant.
                                             OPINION

       Appeal from the United States District Court
          for the Southern District of California
        John A. Houston, District Judge, Presiding

                  Argued and Submitted
          February 3, 2009—Pasadena, California

                   Filed May 28, 2009
                  Amended June 23, 2009

       Before: Harry Pregerson, Susan P. Graber, and
          Kim McLane Wardlaw, Circuit Judges.

                Opinion by Judge Wardlaw




                           7473
              UNITED STATES v. MEDINA-VILLA          7477




                       COUNSEL

Michelle D. Anderson, Law Offices of Michelle D. Anderson,
San Diego, California, for defendant-appellant Cosme
Medina-Villa.
7478            UNITED STATES v. MEDINA-VILLA
Karen P. Hewitt, United States Attorney, Christina M. McCall
(on the brief), Assistant United States Attorney, and Mark R.
Rehe, Assistant United States Attorney (at argument and on
supplemental briefing), United States Attorney’s Office, San
Diego, California, for plaintiff-appellee United States of
America.


                           ORDER

   Appellant’s motion for an extension of time to file the peti-
tion for rehearing and/or petition for rehearing en banc is
GRANTED. The petition shall be filed no later than July 22,
2009.

   Appellee’s request to amend the opinion is GRANTED.
The opinion appearing at ___ F.3d ___, 

(9th Cir. May 28, 2009), is amended as follows: On slip opin-
ion page 6341, delete “Contrary to the government’s argu-
ment,” and capitalize “nothing.”

  IT IS SO ORDERED.


                          OPINION

WARDLAW, Circuit Judge:

   Cosme Medina-Villa (“Medina”), also known as Cosme
Medina-Maella, returns to our court, again convicted of
attempted reentry into the United States after removal in vio-
lation of 8 U.S.C. § 1326. He was sentenced to a sixty-month
term of imprisonment and three years of supervised release,
following a sixteen-level increase in his offense level for a
prior conviction under California Penal Code section 288(a),
which criminalizes lewd and lascivious acts on a child under
fourteen. We must decide whether, in light of Estrada-
                UNITED STATES v. MEDINA-VILLA             7479
Espinoza v. Mukasey, 

(9th Cir. 2008) (en
banc), a conviction under section 288(a) constitutes “sexual
abuse of a minor,” qualifying it as a “crime of violence” that
warrants the sixteen-level increase under U.S.S.G. § 2L1.2.
We hold that it does.

   We must also decide whether the district court erred in
denying (1) Medina’s motion to dismiss the indictment
grounded in the government’s deportation of material wit-
nesses without first informing Medina of his right to retain
them, and (2) Medina’s motion to suppress his initial state-
ments to the field agent for failure to give Miranda warnings.
We affirm the district court’s rulings and, under Almendarez-
Torres v. United States, 

(1998), reject Medina’s
argument on appeal that his conviction and sentence are
unconstitutional.

 I.   FACTUAL AND PROCEDURAL BACKGROUND

   Medina, who was seen by a border patrol agent running
from the fence between the United States and Mexico along
with two other individuals, was apprehended after getting into
the passenger seat of a parked car. Blocking the car’s escape
with his own parked vehicle, Agent Mills approached the sus-
pects with his gun drawn and ordered the driver out of the car.
Mills then asked Medina about his citizenship and immigra-
tion status, and Medina answered that he was a Mexican citi-
zen with no immigration papers. Medina was then arrested,
waived his Miranda rights, and was interrogated at a border
patrol station. He told the agents that he was forced to cross
the border under threat of physical harm. He explained that a
smuggler tricked him to get him close to the border with the
promise of work, obtained the phone number of Medina’s
family members and, under threat of injury, told them to pay
$1,300. Medina also stated that he was kept in the smuggler’s
house for several days without food and that he was beaten
when he tried to turn back from the fence. The border patrol
agents then interviewed on the record the two other Mexican
7480            UNITED STATES v. MEDINA-VILLA
nationals apprehended with Medina. After determining that
the witnesses did not corroborate Medina’s allegations of
duress, the government deported them to Mexico. Neither
Medina nor his counsel received an opportunity to interview
the witnesses before they were deported.

   Before trial, Medina moved to dismiss the indictment on
the grounds that he was not advised of his right to retain mate-
rial witnesses and that the government acted in bad faith in
deporting the witnesses. After holding an evidentiary hearing,
the district court denied the motion, finding that the govern-
ment did not act in bad faith and that the deported witnesses
would not have provided testimony favorable to Medina.
Medina also moved to suppress the statements he made to
Mills during the questioning immediately upon apprehension
(“field statements”). Following another evidentiary hearing,
the district court denied the motion, finding that Medina was
not in custody during that time. The jury convicted Medina of
attempted reentry into the United States after removal in vio-
lation of 8 U.S.C. § 1326.

   Medina’s prior criminal history was particularly relevant to
the sentence imposed by the district court. In 1999, Medina—
known at that time as Medina-Maella—was convicted of vio-
lating California Penal Code section 288(a), which prohibits
lewd and lascivious acts on a child under fourteen, and was
subsequently deported. He attempted reentry soon thereafter
and was convicted under 8 U.S.C. § 1326, with a sixteen-level
increase under U.S.S.G. § 2L1.2 for the prior section 288(a)
conviction. In a published opinion, we upheld the district
court’s conclusion that a conviction under California Penal
Code section 288(a) is a categorical “crime of violence,” man-
dating the sixteen-level increase under U.S.S.G. § 2L1.2. See
United States v. Medina-Maella, 

(9th Cir.
2003). Medina was again deported.

 At issue here is Medina’s second unlawful reentry. For this
most recent violation of § 1326, the district court sentenced
                UNITED STATES v. MEDINA-VILLA              7481
Medina to sixty months’ imprisonment and three years’ super-
vised release, again applying the sixteen-level increase for the
prior conviction of a “crime of violence,” pursuant to
U.S.S.G. § 2L1.2. The district court relied squarely on our
Medina-Maella decision, but also noted that, “within the con-
temporary meaning, that offense . . . is categorically a crime
of violence . . . even without Medina.” Medina timely
appealed.

II.   JURISDICTION AND STANDARDS OF REVIEW

 The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.

  We review de novo the district court’s interpretation of the
Sentencing Guidelines. United States v. Alexander, 

, 818 (9th Cir. 2002).

   We review de novo the district court’s denial of a motion
to dismiss the indictment for failure to retain a witness, and
we review the district court’s underlying findings of fact for
clear error. United States v. Pena-Gutierrez, 

,
1085 n.1 (9th Cir. 2000).

   We also review de novo whether a defendant was entitled
to Miranda warnings. United States v. Galindo-Gallegos, 

, 730 (9th Cir. 2001). “Whether a person is ‘in cus-
tody’ for purposes of Miranda is a mixed question of law and
fact warranting de novo review.” United States v. Kim, 

, 973 (9th Cir. 2002) (alterations and internal quota-
tion marks omitted).

                     III.   DISCUSSION

A.    Sixteen-Level Increase for a Conviction under
      California Penal Code section 288(a)

  Medina argues that his 1999 conviction under California
Penal Code section 288(a) for lewd and lascivious acts with
7482               UNITED STATES v. MEDINA-VILLA
a child under the age of fourteen does not warrant a sixteen-
level increase in his offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The district court, relying on Medina-
Maella, held that a section 288(a) conviction constitutes a
“crime of violence,” which triggers the sixteen-level increase.
We affirm the district court and hold that our recent en banc
decision in Estrada-Espinoza does not undermine its conclu-
sion.

   [1] California Penal Code section 288(a) criminalizes the
conduct of “[a]ny person who willfully and lewdly commits
any lewd or lascivious act . . . upon or with the body, or any
part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the
child.” For a violation of 8 U.S.C. § 1326, the Sentencing
Guidelines provide for a base offense level of eight and
instruct that the offense level be increased by sixteen levels
“[i]f the defendant previously was deported . . . after . . . a
crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guide-
lines’ definition of “crime of violence” includes, inter alia,
“sexual abuse of a minor.” 

n.1(B)(iii).1 In 2003, in
an appeal involving the identical defendant and the identical
crime as those before us now, we held that a conviction under
section 288(a) “constitutes ‘sexual abuse of a minor,’ and is
therefore a ‘crime of violence’ for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A) (2002).” 

.
  1
   The current version of the Guidelines, incorporating the November
2008 amendments, defines the following crimes of a sexual nature as
“crimes of violence”—“forcible sex offenses (including where consent to
the conduct is not given or is not legally valid, such as where consent to
the conduct is involuntary, incompetent, or coerced), statutory rape, [and]
sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The only rele-
vant change from the 2006 version under which Medina was sentenced is
the addition of the clarifying parenthetical defining “forcible sex
offenses”; “sexual abuse of a minor” was then, and is now, an independent
example of a “crime of violence.”
                  UNITED STATES v. MEDINA-VILLA                   7483
   [2] We reaffirm that decisional law defining the term “sex-
ual abuse of a minor” in the sentencing context, U.S.S.G.
§ 2L1.2, is informed by the definition of the same term in the
immigration context, 8 U.S.C. § 1101(a)(43)(A),2 and vice
versa, as established in Medina-Maella. Analyzing the term in
U.S.S.G. § 2L1.2 in Medina-Maella, we expressly relied upon
the analysis in United States v. Baron-Medina, 

,
1147 (9th Cir. 1999), which took into account the meaning of
“sexual abuse of a minor” in 8 U.S.C. § 1101. Medina-

. Further, Estrada-Espinoza estab-
lished that “Congress intended ‘sexual abuse of a minor’ [in
§ 1101(a)(43)(A)] to carry its standard criminal 

. Nothing in Estrada-Espinoza overrules
prior case law interpreting the provisions in a parallel manner.
Moreover, the Supreme Court directs that “we must interpret
the statute consistently, whether we encounter its application
in a criminal or noncriminal context.” Leocal v. Ashcroft, 

, 12 n.8 (2004). With this admonition in mind, we out-
line the historical treatment of section 288(a) and related laws
in our circuit.

  1.   Case Law Establishing Section 288(a) as a Crime of
       Violence

   Under the 1997 version of U.S.S.G. § 2L1.2, a sixteen-level
increase was warranted if the conviction constituted an “ag-
gravated felony”; thus, in the sentencing context, courts were
required to refer to the definition of “aggravated felony” in 8
U.S.C. § 1101, which included then, as it does now, “sexual
abuse of a minor,” § 1101(a)(43)(A). In Baron-Medina, we
reviewed whether section 288(a) proscribes “sexual abuse of
a minor” as defined in § 1101(a)(43)(A). We first rejected
“any suggestion that the federal sexual abuse laws, codified
  2
    Title 8 U.S.C. § 1101(a)(43)(A) defines the term “aggravated felony”
to include “sexual abuse of a minor.” Commission of an “aggravated felo-
ny” increases the statutory maximum punishment for unlawful reentry
under 8 U.S.C. § 1326(b)(2).
7484            UNITED STATES v. MEDINA-VILLA
at Chapter 109A of the United States Code, limit the class of
state laws reached by the term.” 

. Instead, we “interpret[ed] the undefined term ‘sexual
abuse of a minor’ by employing the ordinary, contemporary,
and common meaning of the words that Congress used.” 

marks omitted). Considering the “full
range of conduct” covered by section 288(a), 

marks omitted), we determined that “[t]he conduct
. . . indisputably falls within the common, everyday meanings
of the words ‘sexual’ and ‘minor,’ ” 

We then held,
categorically, that “[t]he use of young children for the gratifi-
cation of sexual desires constitutes an abuse.” 

concluded that a conviction under section 288(a) qualifies as
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A)
because it constitutes “sexual abuse of a minor,” and, there-
fore, warrants the imposition of a sixteen-level offense level
increase. 

the Sentencing Commission revised the Guidelines
to provide a sixteen-level increase for “crimes of violence”
and an eight-level increase for “aggravated felonies.”
U.S.S.G. § 2L1.2(b)(1) (2001). “Crime of violence” was
defined to include “forcible sex offenses (including sexual
abuse of a minor).” 

n.1(B)(ii)(II). Subsequently, in
Medina-Maella, 

, we considered the exact ques-
tion posed here—whether a section 288(a) violation consti-
tutes a “crime of violence” for purposes of U.S.S.G. § 2L1.2.
We noted that the facts were remarkably similar to those in
United States v. Pereira-Salmeron, 

(9th Cir.
2003), in which we held that a conviction under a Virginia
statute prohibiting carnal knowledge of a child between thir-
teen and fifteen was a “crime of violence” because the under-
lying conduct constituted “sexual abuse of a minor.” Medina-

. Expressly relying on Baron Medina,
we concluded that the amendment to the Guidelines did not
alter our conclusion that a violation of section 288(a) consti-
tutes “sexual abuse of a minor.” 

held that
Medina-Maella’s conviction under section 288(a) “constitutes
                UNITED STATES v. MEDINA-VILLA              7485
‘sexual abuse of a minor,’ and is therefore a ‘crime of vio-
lence’ for purposes of U.S.S.G. § 2L1.2(b)(1)(A) (2002).” 

were revised again following Medina-
Maella to list “sexual abuse of a minor” as an independent
example of a “crime of violence.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) (2003) (changing the relevant definition of “crime
of violence” from “forcible sex offenses (including sexual
abuse of a minor)” to “forcible sex offenses, statutory rape,
sexual abuse of a minor”). Then, in United States v. Baza-
Martinez, 

, 1012 (9th Cir. 2006), reh’g en banc
denied, 

(9th Cir. 2007), we considered whether
a North Carolina statute that prohibits a person who is sixteen
years of age or more and at least five years older than the vic-
tim from “taking indecent liberties” with a child under six-
teen, N.C. Gen. Stat. § 14-202.1, punishes “sexual abuse of a
minor,” and is thus a “crime of violence” under U.S.S.G.
§ 2L1.2. “Employing the [Taylor v. United States, 

(1990),] categorical approach and considering the full
range of conduct criminalized by” the statute, we held that it
does not. 

. Central to our rea-
soning was the fact that the “statute prohibits conduct that is
not necessarily physically or psychologically harmful, and
therefore, is not necessarily ‘abuse.’ ” 

stating, we
noted our agreement with Baron-Medina’s conclusions that
“ ‘the use of young children for the gratification of sexual
desires constitutes abuse,’ ” and that the conduct covered by
section 288(a) is “undoubtedly psychologically harmful.” 

(alteration omitted) (quoting 

). By contrast, we concluded, the North Carolina stat-
ute “focuses on improper motivation” and “prohibits conduct
that need not be either physically or psychologically harmful
to the minor.” 

Because the conduct punished
by the North Carolina statute did not necessarily constitute
“abuse,” we declined to conclude that it constitutes a “crime
of violence.” 

   This line of cases reinforces the conclusion that a convic-
tion under California Penal Code section 288(a) is a “crime of
7486            UNITED STATES v. MEDINA-VILLA
violence” because it constitutes “sexual abuse of a minor.” It
also clarifies that we separate “sexual abuse of a minor” into
three elements: whether the conduct proscribed by the statute
is sexual; whether the statute protects a minor; and whether
the statute requires abuse. It demonstrates that in our analysis
of the conduct covered by section 288(a) and similar statutes,
we define the term “abuse” as “physical or psychological
harm” in light of the age of the victim in question. See Baza-

(noting that, under Baron-Medina,
section 288(a) punishes “abuse” “because it requires use of
young children, implying harmful or injurious conduct”
(internal quotation marks omitted)); United States v. Lopez-
Solis, 

, 1206 (9th Cir. 2006) (“The age affects
whether the conduct the statutory rape law covers constitutes
‘abuse.’ ”); Valencia v. Gonzales, 

, 1051 (9th
Cir. 2006) (noting that the age of the victim affects whether
a statute is categorically a “crime of violence”); United States
v. Pallares-Galan, 

, 1100 (9th Cir. 2004) (dis-
tinguishing California Penal Code section 647.6(a), which
criminalizes annoyance and molestation of minors under eigh-
teen, from section 288(a), “particularly because [section
288(a)] applies only to minors of less than 14 years of age”);

(“[W]hen an older person
attempts to sexually touch a child under the age of fourteen,
there is always a substantial risk that physical force will be
used to ensure the child’s compliance.” (internal quotation
marks omitted)); 

(“The use
of young children for the gratification of sexual desires con-
stitutes an abuse.”).

  2.   The Effect of Our En Banc Decision in Estrada-
       Espinoza

   [3] Recently, in Estrada-Espinoza, we considered “whether
a conviction under any of four California statutory rape provi-
sions . . . constitutes the aggravated felony ‘sexual abuse of
a minor’ within the meaning of 8 U.S.C. § 

. The statutes at issue were California Penal Code
                UNITED STATES v. MEDINA-VILLA              7487
sections 261.5(c), criminalizing intercourse with a minor
more than three years younger than the perpetrator; 286(b)(1),
criminalizing sodomy of a person under eighteen; 288a(b)(1),
criminalizing oral copulation with a person under eighteen;
and 289(h), criminalizing penetration by a foreign object of a
person under eighteen. Applying the Taylor categorical

, we first determined “the generic
elements of the crime ‘sexual abuse of a minor.’ ” Estrada-

. Because Congress elected not to
cross-reference a definition for “sexual abuse of a minor,” we
concluded that the reference in the statute carried the “stan-
dard criminal definition.” 

We decided that we did
not need to survey current criminal law to ascertain a federal
definition “because Congress has enumerated the elements of
the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.”

Based on § 2243, we determined that “the generic
offense of ‘sexual abuse of a minor’ requires four elements:
(1) a mens rea level of knowingly; (2) a sexual act; (3) with
a minor between the ages of 12 and 16; and (4) an age differ-
ence of at least four years between the defendant and the
minor.” 

our conclusion, we conducted a review
of federal and state case law and the Model Penal Code, and
concluded that “the congressional definition comports with
‘the ordinary, contemporary, and common meaning of the
words.’ ” Id. (quoting 

).

   [4] We clarified that “sexual abuse of a minor,” as we
defined it, is “a common title for offenses under state criminal
codes,” noting that “[i]n all cases [that we were considering],
the offenses define what would, in more common parlance, be
referred to as statutory rape.” 

Indeed, each of the
four statutory provisions at issue in Estrada-Espinoza penal-
ized sexual offenses against persons under the age of eigh-
teen, not just younger children. Therefore, our construction of
the generic § 2243 definition of “sexual abuse of a minor”
encompassed statutory rape crimes only—that is, sexual
offenses involving older as well as younger adolescents, not
crimes prohibiting conduct harmful to younger children spe-
7488            UNITED STATES v. MEDINA-VILLA
cifically. Focusing on the “abuse” prong of the term, we con-
cluded that our precedent and the precedent of our sister
circuits treated these categories differently, “acknowledg[ing]
a significant difference between sexual relations with some-
one under 16 and sexual relations with someone between the
ages of 16 and 18.” 

For example, we noted that
“under national contemporary standards . . . sexual activity
with a younger child is certainly abusive, [but] sexual activity
with an older adolescent is not necessarily abusive.” 

see also United States v. Rayo-Valdez, 

,
319 (5th Cir. 2002) (“This court and others have held that sex-
ual offenses by adults against children carry the inherent risk
of force upon or injury to the child.”). We found that “the
assumption that a minor’s legal incapacity implies that the
proscribed sexual intercourse is non-consensual . . . may be
valid where the minor is a younger child [but] does not hold
true where the victim is an older adolescent, who is able to
engage in sexual intercourse voluntarily, despite being legally
incapable of consent.” 

(alterations in original) (internal quotation marks omitted).
We also observed that “[t]he fact that the vast majority of
states do not forbid consensual sexual intercourse with a 17-
year-old male or female indicates that such conduct is not
necessarily abusive.” 

   [5] The distinction between offenses punishing sexual con-
duct with older adolescents and offenses punishing the same
conduct with younger children explains why we and our sister
circuits have consistently held that sexual offenses against
younger children constitute “crimes of violence.” See, e.g.,
Dos Santos v. Gonzales, 

, 84-85 (2d Cir. 2006)
(holding that a conviction under a Connecticut statute crimi-
nalizing “contact with the intimate parts . . . of a child under
the age of sixteen years” is a “crime of violence”); United
States v. Ortiz-Delgado, 

, 757 (11th Cir. 2006)
(holding that a conviction under California Penal Code sec-
tion 288(a) is a “crime of violence”); 

; 

; Rayo-
                UNITED STATES v. MEDINA-VILLA              7489

(holding that a conviction under a
Texas statute criminalizing the aggravated sexual assault of
child under fourteen is a “crime of violence”); Ramsey v. INS,

, 583 (11th Cir. 1995) (per curiam) (holding that
a conviction under a Florida statute criminalizing attempted
lewd assault on a child under sixteen is a “crime of vio-
lence”); United States v. Reyes-Castro, 

, 379
(10th Cir. 1993) (holding that a conviction under a Utah stat-
ute criminalizing the indecent touching of a child under four-
teen is a “crime of violence”).

   [6] Applying these distinctions in Estrada-Espinoza, we
held that because the California statutory rape provisions pun-
ished conduct not only with younger children but also with
older adolescents, and did not require an age difference of
four years—one of the elements of § 2243, convictions under
these statutes “do not categorically constitute ‘sexual abuse of
a minor.’ ” 546 F.3dat 1160. Contrary to Medina’s argument,
given that our holding was intended to define statutory rape
laws only, Estrada-Espinoza in no way undermines our prior
conclusion that “[t]he use of young children for the gratifica-
tion of sexual desires constitutes abuse,” 

; see also 

, but
instead reaffirms it. Medina maintains that by using the fed-
eral statutory definition for “sexual abuse of a minor,”
Estrada-Espinoza abrogates our explicit rejection of the fed-
eral definition in Baron-Medina and overrules Medina-
Maella. Because § 2243 was intended by Estrada-Espinoza to
define only statutory rape crimes, however, it does not under-
mine the conclusion of Baron-Medina that § 2243 does not
define “sexual abuse of a minor” as applicable to younger
children. In fact, rather than overruling Baron-Medina, we
affirmatively relied upon it in Estrada-Espinoza. 

. Moreover, if we were to define “sexual abuse of
a minor” in U.S.S.G. § 2L1.2 as limited to § 2243, we would
eliminate the need for the separate and independent example
of “statutory rape” as a “crime of violence.” When interpret-
ing the Guidelines, we must give meaning to all its words and
7490             UNITED STATES v. MEDINA-VILLA
render none superfluous. TRW Inc. v. Andrews, 

,
31 (2001). We therefore reject the proposition that § 2243
defines the universe of sexual offenses contemplated by
U.S.S.G. § 2L1.2’s term “sexual abuse of a minor.”

   [7] Finally, a literal reading of Estrada-Espinoza, taken to
its logical conclusion, would lead to an absurd result. As
noted above, one of the elements of the generic offense that
we extrapolated from § 2243 is that the minor be between the
ages of twelve and sixteen. 

. If the generic elements articulated in Estrada-Espinoza
comprise all the conduct constituting “sexual abuse of a
minor,” then no child under the age of twelve would be con-
templated by the term “minor,” and sexual crimes against
children under twelve would not be “crimes of violence” sub-
jecting the offenders to a sixteen-level increase. Because we
do not believe that our en banc panel intended such a bizarre
result, but was expressly considering statutory rape statutes
only, we do not read Estrada-Espinoza to hold that § 2243
provides the only relevant definition of the term “sexual abuse
of a minor” found in U.S.S.G. § 2L1.2. Thus, Medina-
Maella’s and Baron-Medina’s holdings that a violation of
California Penal Code section 288(a) constitutes “sexual
abuse of a minor” and warrants a sixteen-level increase under
U.S.S.G. § 2L1.2 as a “crime of violence” remain valid law
subsequent to Estrada-Espinoza. The district court did not err
in increasing Medina’s offense level by sixteen, thereby
enhancing Medina’s sentence.

B.     Deportation of Material Witnesses

   The district court did not err in denying Medina’s motion
to dismiss the indictment for failure to obtain Medina’s
waiver of the right to retain material witnesses. Medina con-
tends that the government failed to obtain from him a valid
“knowing and intelligent waiver of the right to retain a deport-
able alien witness,” as required by United States v. Lujan-
Castro, 

, 878 (9th Cir. 1979) (per curiam). After
                  UNITED STATES v. MEDINA-VILLA                  7491
an evidentiary hearing and a review of the videotapes of the
witness statements, the district court found that the two wit-
nesses did not provide exculpatory evidence that would cor-
roborate Medina’s claim of duress. The district court also
found that the government acted in good faith by videotaping
the interviews with the witnesses. Concluding that “there is no
bad faith and that [Medina was] not prejudiced,” the court
held that “a Lujan-Castro waiver was not required” and
denied the motion to dismiss the indictment.

   [8] The right to retain a deportable alien witness is based
upon the Fifth Amendment guarantee of “due process of law,”
U.S. Const. amend. V, and the Sixth Amendment guarantee
of “compulsory process for obtaining witnesses in [one’s]
favor,” U.S. Const. amend. VI. See United States v. Mendez-
Rodriguez, 

, 4 (9th Cir. 1971). We have previously
held that this right may be subject to a “knowing and intelli-
gent waiver.” 

. The Supreme
Court has since narrowly construed the right, however, hold-
ing that a constitutional violation may be found “only if the
criminal defendant makes a plausible showing that the testi-
mony of the deported witnesses would have been material and
favorable to his defense, in ways not merely cumulative to the
testimony of available witnesses.” United States v.
Valenzuela-Bernal, 

, 873 (1982). The Court
implicitly overruled Mendez-Rodriguez’s lower threshold that
a constitutional violation occurs when the government deports
an alien whose “testimony could conceivably benefit the
defendant.” 

(internal quotation marks omitted).3
“[P]rompt deportation of alien witnesses who are determined
by the Government to possess no material evidence relevant
to a criminal trial,” the Court reasoned, “satisf[ies] immigra-
tion policy,” and mitigates the “substantial financial and phys-
ical burdens upon the Government, not to mention the human
  3
   The abrogation of Mendez-Rodriguez by Valenzuela-Bernal is recog-
nized in United States v. Marquez-Amaya, 

, 747-48 (9th Cir.
1982) (per curiam).
7492               UNITED STATES v. MEDINA-VILLA
cost to potential witnesses who are incarcerated though
charged with no crime.” 

   [9] Thus, the right to retain deportable witnesses is limited
to the right to retain witnesses who are material and favorable
to the defense. If the government “conclude[s] that [the wit-
nesses] possess[ ] no evidence relevant to the prosecution or
the defense,” 

it does not need to seek a Lujan-
Castro waiver, and it may deport the witnesses before grant-
ing the defendant the opportunity to interview them.4 Thus,
before reaching the question of whether Medina waived his
right under Lujan-Castro, we must examine whether the wit-
nesses deported by the government in this case would have
provided testimony that was material and favorable to the
defense.5
  4
     We do not decide the scope of the government’s obligation to request
a waiver from a defendant before deportation if it determines that the wit-
nesses are material and favorable to the defense. Valenzuela-Bernal
explicitly cited case law concerning the “constitutionally guaranteed [right
of] access to evidence,” and reinforced that “ ‘the suppression by the pros-
ecution of evidence favorable to an accused upon request violates due pro-
cess where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.’ 

(quoting Brady v. Maryland, 

, 87 (1963)). It appears
that the government cannot evade its constitutional obligations by asking
the defendant for a Lujan-Castro waiver in such circumstances, just as the
government cannot evade its responsibility to disclose exculpatory evi-
dence by asking the defendant to waive his right to a fair trial, 

, but we leave the resolution of that question for another day.
   5
     The threshold inquiry regarding the material and favorable nature of
deported witnesses’ proposed testimony is similar to the threshold require-
ment of being in custody for the purposes of Miranda warnings. As dis-
cussed below, we do not reach the question of whether a defendant
properly waived his Miranda rights unless we determine that a defendant
was in custody, and therefore had a right to be given the Miranda warn-
ings. Similarly, we do not reach the question of whether a defendant prop-
erly waived his rights under Lujan-Castro unless we first determine that
the defendant had a right to retain the particular witnesses in question.
  United States v. Ramirez-Jimenez, 

(9th Cir. 1992), does
not mandate a different process. In that case, we first determined that no
                   UNITED STATES v. MEDINA-VILLA                     7493
   [10] Valenzuela-Bernal sets forth a two-pronged test for
determining whether the government unconstitutionally
deported witnesses. “[T]he defendant must make an initial
showing that the Government acted in bad faith and that this
conduct resulted in prejudice to the defendant’s case.” United
States v. Dring, 

, 693 (9th Cir. 1991). “To estab-
lish that the government acted in bad faith, [the defendant]
must show either ‘that the Government departed from normal
deportation procedures’ or ‘that the Government deported [the
witness] to gain an unfair tactical advantage over him at
trial.’ ” 

(quoting 

). Here, the government did neither. As explained
below, border patrol agents questioned the two witnesses,
determined they had no information that supported Medina’s
account of duress, and deported them. There is no indication
that the government’s actions deviated from regular procedure
or that it gained some tactical advantage from the deportation
of these witnesses. Thus, Medina failed to demonstrate that
the witnesses were deported in bad faith.

   To demonstrate prejudice, the defendant must “make[ ] a
plausible showing that the testimony of the deported wit-
nesses would have been material and favorable to his defense,
in ways not merely cumulative to the testimony of available
witnesses.” 

; 

. The Supreme Court recognized the difficulty
for “a defendant who has not had an opportunity to interview
a witness . . . in making a showing of materiality,” and sug-
gested the defendant may draw on “the events to which a wit-
ness might testify, and the relevance of those events to the
crime charged.” 

.

constitutional violation existed under Valenzuela-Bernal, and then
affirmed the district court’s finding of a knowing and intelligent Lujan-
Castro waiver. 

This particular iteration of a two-step process
was dictum, however. The fact that the government asked for, and suc-
cessfully obtained, a Lujan-Castro waiver in Ramirez-Jimenez does not
create an obligation for the government to do so in analogous cases.
7494               UNITED STATES v. MEDINA-VILLA
   [11] Though Medina has never had the opportunity to ques-
tion the witnesses, his task is less burdensome than that con-
templated in Valenzuela-Bernal because he had access to the
transcripts and the videotapes of the government’s interviews
of the two witnesses. According to those transcripts, one wit-
ness stated that Medina6 was in the smuggler’s house when he
arrived, noted that Medina was “chatting,” and answered
affirmatively when asked whether Medina was in a good
mood. The witness’s statements also suggested that the smug-
gler that led them to the fence did not actually jump the fence
but told him “to follow the one that was in front,” referring
to Medina. The witness further stated that Medina was “the
one that in the end had the ladder.” The other witness told the
Border Patrol that it was Medina who “said to jump,” and
answered affirmatively when asked whether Medina was
leading during their crossing. That witness also testified that
Medina “was talking . . . with other men that were [smug-
glers].” When asked whether Medina was in good spirits or
looked sick, he answered that Medina “looked normal.” These
witness statements not only fail to support Medina’s account
of duress during his entry into the United States, they actually
contradict it. Thus, while the witnesses’ testimony at trial per-
haps would have been material, it was clearly not favorable
to Medina.

   [12] Therefore, because Medina failed to show bad faith on
the part of the government and failed to demonstrate that the
deported witnesses’ proposed testimony would be material
and favorable to the defense, Medina’s rights were not vio-
lated by the deportation of the two witnesses. Because Medina
did not have a right to retain the witnesses, the government
was not under an obligation to obtain a Lujan-Castro waiver
from him before deporting the witnesses.7
   6
     Neither witness identified Medina by name. Rather, they referenced
him by his clothing and, at the end of the interview, each identified
Medina in a photographic lineup.
   7
     Because no Lujan-Castro waiver was required in this case, we need not
consider Medina’s argument that the district court failed to make factual
findings on the record with respect to his state of mind.
                UNITED STATES v. MEDINA-VILLA              7495
C.   Suppression of Field Statements under Miranda

   The district court did not err in denying Medina’s motion
to suppress the field statements. Medina argues that his field
statements were taken in violation of Miranda. The district
court held an evidentiary hearing on this question. It found
that “the detention was very temporary,” that “[t]he agent
conducted a proper field investigation regarding citizenship,”
that “this interrogation was proper,” and that, because “[t]he
defendant was not in custody, . . . there’s no violation.” The
parties dispute only the custody prong of Miranda.

   We have held that the question “[w]hether a person is in
‘custody or otherwise deprived of his freedom of action in any
significant way,’ Miranda v. Arizona, 

, 444
(1966), is answered by reviewing the totality of facts involved
at the time of the alleged restraint.” United States v. Booth,

, 1235 (9th Cir. 1981). “Pertinent areas of
inquiry include the language used by the officer to summon
the individual, the extent to which he or she is confronted
with evidence of guilt, the physical surroundings of the inter-
rogation, the duration of the detention and the degree of pres-
sure applied to detain the individual.” 

of the
inquiry is “whether a reasonable innocent person in such cir-
cumstances would conclude that after brief questioning he or
she would not be free to leave.” 

Court applied this reasoning to traffic stops
in Berkemer v. McCarty, holding that due to the “noncoercive
aspect of ordinary traffic stops[,] . . . persons temporarily
detained pursuant to such stops are not ‘in custody’ for the
purposes of Miranda.” 

, 440 (1984). Berkemer
highlighted the “presumptively temporary and brief” nature of
the stop, 

and the “exposure to public view [that]
both reduces the ability of an unscrupulous policeman to use
illegitimate means to elicit self-incriminating statements and
diminishes the motorist’s fear that, if he does not cooperate,
he will be subjected to abuse,” 

Further, in the con-
7496              UNITED STATES v. MEDINA-VILLA
text of apprehension of individuals potentially illegally pres-
ent in the United States, the Court has clarified that “when an
officer’s observations lead him reasonably to suspect that a
particular vehicle may contain aliens who are illegally in the
country, he may stop the car briefly and investigate the cir-
cumstances that provoke suspicion . . . [and] question the
driver and passengers about their citizenship and immigration
status.” United States v. Brignoni-Ponce, 

,
881-82 (1975).

   We expanded these principles in Galindo-Gallegos to
abbreviated stops and questioning at the border. There, two
border patrol officers apprehended a group of fifteen to
twenty individuals running from the border in an isolated
location, told them to sit on the ground, and asked them ques-
tions regarding their citizenship and immigration 

. We held that “this is ordinarily a Terry8 stop, not
custodial questioning.” 

(footnote added). The deten-
tion analyzed in Galindo-Gallegos was not particularly “pub-
lic,” and the individuals questioned were not actually “free to
leave”—in Galindo-Gallegos’s case, for example, “he tried to
run away, and was caught and brought back.” 

However, “[w]e have approved of Terry stops that include
handcuffing the suspect during questioning, ordering a sus-
pect to lie prone on the ground, or placing the suspect in a
police vehicle.” 

(Paez, J., concurring) (citations
omitted). We therefore affirmed the district court’s denial of
the motion to suppress the individuals’ answers to the offi-
cers’ questions. 

(majority opinion).

   [13] Thus, Galindo-Gallegos dictates the result in this case:
when border patrol agents stop a car based on reasonable sus-
picion that individuals are illegally present in the country and
question the occupants regarding their citizenship and immi-
gration status, the occupants are not in custody for Miranda
purposes. Even though the border patrol agent prevented
  8
   Terry v. Ohio, 

(1968).
                UNITED STATES v. MEDINA-VILLA             7497
Medina from leaving the parking lot by blocking his car,
approaching it with his gun drawn, and interrogating him
about his citizenship and immigration status, the agent did not
venture beyond the restraints of Brignoni-Ponce, Terry, or
Berkemer. Therefore, Medina was not in custody and was not
entitled to Miranda warnings.

D.   Constitutionality of Sentence Under 8 U.S.C. § 1326

   [14] Noting that he raises the argument only to preserve it
for en banc and Supreme Court review, Medina argues that a
judicial finding of a prior conviction, enhancing the statutory
maximum under 8 U.S.C. § 1326, violates Apprendi v. New
Jersey, 

(2000). Medina’s argument is foreclosed
by Almendarez-Torres v. United States, which held that a
judge may find the fact of a prior conviction. 

,
239-47 (1998). Almendarez-Torres remains good law. See
United States v. Becerril-Lopez, 

, 893 (9th Cir.)
(holding that Almendarez-Torres remains “binding authori-
ty”), cert. denied, 

(2008); United States v.
Beng-Salazar, 

, 1091, 1097 (9th Cir. 2006)
(rejecting the defendant’s arguments challenging the “contin-
ued validity of Almendarez-Torres”).

                   IV.   CONCLUSION

   Because Estrada-Espinoza did not expressly or implicitly
overrule our prior precedent holding that a conviction under
California Penal Code section 288(a) constitutes “sexual
abuse of a minor” and is therefore a “crime of violence,” the
district court correctly calculated Medina’s sentence under
U.S.S.G. § 2L1.2. The district court properly denied Medina’s
motion to dismiss the indictment for failure to inform Medina
of his right to retain witnesses because Medina did not have
a right to retain the two witnesses, whose proposed testimony
was not favorable to Medina. The district court also correctly
denied Medina’s motion to suppress his field statements for
failure to give Miranda warnings because, given the nature
7498           UNITED STATES v. MEDINA-VILLA
and circumstances of the border patrol’s inquiry, Medina was
not in custody and therefore was not entitled to Miranda
warnings. Finally, pursuant to Almendarez-Torres, Medina’s
§ 1326 conviction and sentence did not violate Apprendi.

  AFFIRMED.