FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-50532 Plaintiff-Appellee,

D.C. No.

v.  08cr4495-MMA

FRANCISCO VALDOVINOS-MENDEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted

November 2, 2010—Pasadena, California

Filed February 15, 2011

Before: Mary M. Schroeder and Richard C. Tallman, Circuit

Judges, and John A. Jarvey, District Judge.*

Opinion by Judge Jarvey

*The Honorable John A. Jarvey, District Judge for the Southern District

of Iowa, sitting by designation. 

2479
COUNSEL

David M.C. Peterson, Federal Defenders of San Diego, Inc.,

and James Fife (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for the defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

Assistant United States Attorney, Chief, Appellate Section,

Criminal Division, and W. Mark Conover (argued), Assistant

United States Attorney, San Diego, California, for the

plaintiff-appellee. 

OPINION

JARVEY, District Judge:

Francisco Valdovinos-Mendez appeals his conviction for

illegally re-entering the United States following removal, in

violation of 8 U.S.C. § 1326. Valdovinos-Mendez contends

that the admission into evidence of a certificate of nonexistence of record (“CNR”) and certain documents from his

Alien Registration File (“A-file”) violated his rights under the

2482 UNITED STATES v. VALDOVINOS-MENDEZ
Sixth Amendment’s Confrontation Clause. Citing the best evidence rule, he also contests the admission of testimony from

an A-file custodian regarding the absence of any record of

Valdovinos-Mendez applying for permission to re-enter the

United States. In addition, he challenges a sixteen-level

enhancement to his Sentencing Guideline base offense level

imposed for a prior conviction of assault with a deadly

weapon under California Penal Code § 245(a), arguing that it

does not qualify as a “crime of violence” within the meaning

of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Finally, Valdovinos-Mendez

asserts that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), overruled Almendarez-Torres v. United States, 523 U.S. 224

(1998), requiring that his prior felony conviction be found by

the jury before subjecting him to a greater maximum sentence

under § 1326(b). 

We affirm Valdovinos-Mendez’s conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 15, 2008, a police officer encountered ValdovinosMendez driving erratically in the city of Vista, California. The

officer pursued Valdovinos-Mendez as he exited the vehicle

and ran into a nearby alleyway. Valdovinos-Mendez gave the

officer the false name of Juan Manuel Torres Quintero. He

also gave the officer a Mexican driver’s license in the name

of Juan Manuel Torres Quintero with Valdovinos-Mendez’s

photograph on it. The officer arrested Valdovinos-Mendez for

driving under the influence of alcohol.

A federal grand jury indicted Valdovinos-Mendez for being

found illegally in the United States following removal, in violation of 8 U.S.C. § 1326. The indictment alleged that

Valdovinos-Mendez had been previously deported and

removed to Mexico. Prior to trial, Valdovinos-Mendez moved

in limine to exclude the CNR and other documents from his

A-file. The district court denied Valdovinos-Mendez’s

motion. 

UNITED STATES v. VALDOVINOS-MENDEZ 2483
The jury heard the testimony of Agent Deven Wooddy,

custodian of Valdovinos-Mendez’s A-file. She described a

typical A-file as a physical folder containing records of an

alien’s immigration status, such as fingerprints, photographs,

removal documents, and applications for re-entry into the

United States. Agent Wooddy testified that her review of

Valdovinos-Mendez’s A-file, as well as her search of two

immigration databases,1 revealed no documentation that

Valdovinos-Mendez had ever applied for permission to reenter the United States. 

The jury found Valdovinos-Mendez guilty of violating

§ 1326. At sentencing, the court determined that he had a base

offense level of 8 and the district court imposed a 16-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because

Valdovinos-Mendez had been deported following his conviction for a crime of violence.2

 The resulting total offense level

of 24, with a criminal history category V, suggested a range

of imprisonment from 92 to 115 months. The court sentenced

Valdovinos-Mendez to 48 months in prison, followed by three

years of supervised release.

II. DISCUSSION

A.

[1] We first address Valdovinos-Mendez’s Sixth Amendment claims. The government concedes that the admission of

the CNR at trial violated Valdovinos-Mendez’s right to confrontation. See Melendez-Diaz v. Massachusetts, 129 S. Ct.

1Agent Wooddy searched both the Central Index System (“C.I.S.”) and

the Computer Linked Applications Information Management System

(“C.L.A.I.M.S.”). 

2Valdovinos-Mendez was convicted of assault with a firearm in violation of Cal. Penal Code § 245(a)(2), and was sentenced to six years in

prison on May 31, 1991. On October 20, 1998, he was again convicted

and sentenced to six years in prison for assault with a deadly weapon in

violation of Cal. Penal Code § 245(a)(1). 

2484 UNITED STATES v. VALDOVINOS-MENDEZ
2527, 2539 (2009). We have already held that admission of a

CNR is testimonial hearsay, requiring confrontation. See

United States v. Orozco-Acosta, 607 F.3d 1156, 1161 (9th Cir.

2010). If the evidence is improperly admitted, “ ‘we must

remand for a new trial unless the government demonstrates

beyond a reasonable doubt that admission of the evidence was

harmless.’ ” Id. (quoting United States v. Norwood, 603 F.3d

1063, 1068 (9th Cir. 2010)); see also Chapman v. California,

386 U.S. 18, 24 (1967). 

[2] We find that standard met because the CNR was cumulative of other evidence demonstrating Valdovinos-Mendez’s

lack of permission to re-enter. See Orozco-Acosta, 607 F.3d

at 1162. Agent Wooddy testified that she did not find evidence of permission to re-enter in Valdovinos-Mendez’s Afile or from her own search of the C.I.S. and C.L.A.I.M.S.

databases. Valdovinos-Mendez had an adequate opportunity

to cross-examine Agent Wooddy and there was no evidence

that he actually applied for permission to re-enter. See id. We

hold that admission of the CNR was harmless. See id.

[3] We likewise hold that admission of the challenged Afile documents3

 did not violate Valdovinos-Mendez’s Sixth

Amendment rights because the documents were nontestimonial in nature. See United States v. Bahena-Cardenas,

411 F.3d 1067, 1075 (9th Cir. 2005), cert. denied, 126 S. Ct.

1652 (2006) (warrant of removal is non-testimonial); OrozcoAcosta, 607 F.3d at 1163 (warning to alien ordered deported

is non-testimonial); United States v. Ballesteros-Selinger, 454

F.3d 973, 975 (9th Cir. 2007) (immigration judge’s memoranda of oral decisions is non-testimonial). We conclude that

admission of these documents did not violate ValdovinosMendez’s Sixth Amendment right to confrontation.

3Valdovinos-Mendez challenges the admission of the Warrant of

Removal, Warning to Alien Ordered Deported, and the Order from the

Immigration Judge. 

UNITED STATES v. VALDOVINOS-MENDEZ 2485
B.

Valdovinos-Mendez urges us to find that the district court

erred under the best evidence rule when it admitted the testimony of Agent Wooddy as to her search of the databases and

the absence of any record of Valdovinos-Mendez applying for

permission to re-enter the United States. We rejected these

arguments in United States v. Diaz-Lopez, 2010 WL 4455880,

at *1, *4-5 (9th Cir. Nov. 9, 2010) (holding that the agent’s

testimony about databases “laid a sufficient foundation for

this relevant evidence to be admissible” and the best evidence

rule does not apply to an agent’s testimony about his search

of databases).

[4] The best evidence rule applies when the contents of a

writing are sought to be proved, not when records are

searched “and found not to contain any reference to the designated matter.” Fed. R. Evid. 1002 Advisory Committee’s

Note. Here, Agent Wooddy testified only to the absence of

records, not to the contents of records sought to be proved.

Moreover, public records are an exception to the hearsay rule

and testimony from a qualified agent is permitted to show

“that diligent search failed to disclose the record, report, statement, or data compilation, or entry.” Fed. R. Evid. 803(10).

As public records, the C.I.S. and C.L.A.I.M.S. databases are

self-authenticating. See United States v. Loyola-Dominguez,

125 F.3d 1315, 1318 (9th Cir. 1997). We reject ValdovinosMendez’s arguments on this issue. 

C.

[5] We held in United States v. Grajeda, 581 F.3d 1186,

1189-92 (9th Cir. 2009), cert. denied, 131 S. Ct. 583 (Nov. 8,

2010), that a prior conviction for assault with a deadly

weapon or by force likely to produce great bodily injury,

under Cal. Penal Code. § 245, is a “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, the district

court properly imposed the 16-level enhancement to

2486 UNITED STATES v. VALDOVINOS-MENDEZ
Valdovinos-Mendez’s base offense level under the Sentencing

Guidelines.

D.

Valdovinos-Mendez next argues that his Sixth Amendment

right to a jury trial was violated by a sentencing enhancement

based on a conviction not proved to a jury beyond a reasonable doubt. Pursuant to 8 U.S.C. § 1326(a), the statutory maximum sentence for a defendant convicted of illegal re-entry is

two years. But under § 1326(b), the maximum penalty

increases to ten years for aliens having a prior felony conviction and twenty years for aliens having a prior aggravated felony conviction. Valdovinos-Mendez asserts that the recent

Supreme Court opinion in Nijhawan v. Holder, 129 S. Ct.

2294 (2009), effectively overruled Almendarez-Torres, 523

U.S. at 235. Almendarez-Torres allowed the district court at

sentencing to find that Valdovinos-Mendez had a prior aggravated felony without submitting the issue to the jury. Because

Valdovinos-Mendez raises an Apprendi4 issue, we review his

claim de novo. United States v. Smith, 282 F.3d 758, 771 (9th

Cir. 2002). 

[6] In Almendarez-Torres, the Supreme Court held that a

prior conviction under § 1326(b)(2) was a sentencing factor,

not an element of the offense. 523 U.S. at 237; see, e.g.,

United States v. Gerritsen, 571 F.3d 1001, 1009 (9th Cir.

2009); United States v. Mendoza-Zaragoza, 567 F.3d 431,

434-37 (9th Cir. 2009), cert. denied, 130 S. Ct. 420 (2009);

United States v. Narvaez-Gomez, 489 F.3d 970, 977-78 (9th

Cir. 2007). 

Valdovinos-Mendez, however, urges us to find that Nijha4Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the

fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”). 

UNITED STATES v. VALDOVINOS-MENDEZ 2487
wan has overruled Almendarez-Torres and that we should

now treat prior felony convictions under § 1326(b) as elements of the offense. We decline to do so.

[7] In Nijhawan, the Supreme Court noted that an alien

convicted of an aggravated felony is deportable under 8

U.S.C. § 1227(a)(2)(A)(iii), including a felony involving

fraud or deceit in which the loss to the victim exceeds

$10,000. § 1101(a)(43)(M)(i). Nijhawan, 129 S. Ct. at 2297.

Nijhawan was convicted of mail fraud, but the jury was not

required to determine the amount of loss. Id. at 2298. Nijhawan appealed from a deportation order and challenged the

amount of loss determination for that reason. Id.

[8] Nijhawan speculated that there could be potential constitutional problems if he were to subsequently re-enter the

United States illegally and the sentencing court imposed an

enhancement based on this mail fraud conviction, because the

loss amount would not have been found beyond a reasonable

doubt in the prior criminal proceeding. Id. at 2302. The

Supreme Court dismissed this argument upon the government’s suggestion that this hypothetical issue could be simply

resolved by submitting the issue of loss amount to the jury in

the subsequent illegal re-entry trial. Id. at 2303. This dicta

from Nijhawan is not authority for the proposition that

Valdovinos-Mendoza’s prior felony convictions are an element of the offense in a prosecution under § 1326. It does not

cast doubt on the continuing validity of the Court’s clear holding in Almendarez-Torres. 

[9] We conclude that Almendarez-Torres has not been

overruled by Nijhawan and continues to constitute binding

authority. See United States v. Leyva Martinez, ___ F.3d ___,

2011 WL 300188, at *1 (9th Cir. Jan. 27, 2011) (per curiam)

(holding that Nijhawan did not overrule Almendarez-Torres).

The district court did not err when it treated ValdovinosMendez’s prior felony conviction as a sentencing enhancement and increased his statutory maximum sentence.

2488 UNITED STATES v. VALDOVINOS-MENDEZ
III. CONCLUSION

The district court did not err in admitting into evidence

documents from and testimony about Valdovinos-Mendez’s

A-file, or in the calculation of his sentence. His conviction

and sentence are AFFIRMED.

UNITED STATES v. VALDOVINOS-MENDEZ 2489