United States Court of Appeals

Fifth Circuit



## FILED

January 10, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-50322

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR ENRIQUE RUEDA-RIVERA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:

Oscar Enrique Rueda-Rivera appeals his jury-trial conviction

and sentence for being found in the United States following

deportation and removal, without having obtained the consent of the

Attorney General or the Secretary of the Depart ment of Homeland

Secur ity. We AFFIRM, and write briefly to make clear that the

Certificate of Nonexistence of Record (“CNR”) was properly admitted

into evidence to establish that the Government had not consented to

the defendant’s presence in the country.2 I

Rueda-Rivera was charged with re-ente ring the United States

after removal, without having obtained the consent of the Attorney

G eneral or the Secretary of the Department of Homeland Securi ty.

At trial, the Government presented evidence that Rueda-Rivera was

an alien who had been removed from the United States in 2000, and

that he had been found in the United States after his removal. As

evidence that Rueda-Rivera did not have permission to re-enter the

United States, the Government indicated that it would introduce a

CNR. S ee United States v. Sanchez-Milam

, 305 F.3d 310, 3 13 (5th

Cir. 2002) (holding that CNR is sufficient to satisfy Government’s

burde n of proving that Attorney General had not consented to

application for re-entry). Rueda-Rivera objected, arguing that

allowing the CNR and testimony relating thereto into evidence would

violate his right to confrontation. He argued that he would not

have an opportunity to cross-examine the author of the CNR.

Furthermore, he contended that the CNR had not been in his alienregistration file when the criminal case was filed, and had been

created only for the purposes of the criminal trial. The district

court overruled the objection.

Border Patrol Agent Bendele identified the CNR and testified

that it reflected that Rueda-Rivera had not received consent to reenter the United States. The CNR was admitted into evidence, over

Rueda-Rivera’s renewed objection. The CNR was signed by Ruth E.

Jones, who was identified as “the Chief in the Records Services3

Branch, O ffice of Records, Headquarters, of the Immigration and

Naturalization Service, United States Department of Justice.” In

the CNR, Jones declared that, pursuant to § 290(d) of the

Immigration and Nationality Act and 8 C.F.R. § 1-3.7(d)(4), she was

“authorized to certify the nonexistence in the records of the

Service of an official file, docume nt, or records pertaining to

specified persons or subjects.” The CNR reflected that the INS

maintains central ized records relating to immigrant aliens who

entered the United States on or after June 30, 1924, and to

nonimmigrant aliens who ent ered on or after June 30, 1948.

Additionally, the INS maintains a centralized index of all persons

naturalized on or after September 27, 1906. Jones further declared

that, “after a diligent search no evidence [was] found to exist in

the records of the Immigration an d Naturalization Service of the

granting of permission for admission into the United States after

deportation or exclusion relating to File No. A-72 209 927, Oscar

Rueda Rivera ....”

Agent Bendele testified that the CNR reflected that a “records

check was conducted” and showed that Rueda-Rivera had not received

consent to re-enter the United States. On cross-examination,

Bendele testified that he did not know what type of search Jones

might have performed in preparing the CNR. He believed that she

“check[ed] the computer imm igration system,” but he did not know

what type of files or how many files Jo nes might have checked.4

When asked whether he had “any idea” what Jones did to prepare the

CNR, Bendele replied, “No, I don’t.”

The jury found Rueda-Rivera guilty, and the district court

sentenced him to 33 months imprisonment and a three-year term of

supervised release. Rueda-Rivera filed a timely notice of appeal.

II

Rueda-Rivera contends that the admission into evidence of the

CNR violated his rights under the Confrontation Clause, and that 8

U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional.

A

Rueda-Rivera relies on the Supreme Court’s recent decision in

Crawford v. Washington

, 124 S.Ct. 1354 (2004). Our standard of

review is de novo

. U nited States v. Aguilar-Tamayo

, 300 F.3d 562,

564 (5th Cir. 2002).

In Crawford

, the Supreme Court held that testimonial, out-ofcourt statements by witnesses are barred under the Co nfrontation

Clause unless the witnesses are unavailable and the defendant had

a prior opportunity to cross-examine them. C rawford

, 124 S.Ct. at

1374. The Supreme Court declined to give a full definition of what

“testimonial” statements are, specifically reserving that question

for another day. Id . However, the Court stated that “[w]hatever

else the term covers, it applies at a minimum to prior testimony at

a preliminary hearing, before a grand jury, or at a former trial;

and to police int errogations.” I d

. The Court also gave two

examples of “statements that by their nature were not testimonial”5

-- business records and statements in furtherance of a conspiracy.

Id . at 1367; see also id . at 1378 (Rehnquist, C.J., concurring in

judgment) (noting that “t he Court’s analysis of ‘testimony’

excludes at least some hearsay exceptions, such as business records

and official records”).

In an unpublished opinion, we recently wrote that because the

items in the defendant’s immigration file were non-testimonial, the

Confrontation Clause did not bar their admission. U nited States v.

Gutierrez-Gonzales

, No. 03-51253, p. 4 (5th Cir. Oct. 8, 2004)

(unpublished). We likened an immigration file to business records

and concluded that the file contained statements that by their

nature were n ot testimonial. I d

. Accordingly, we held that the

introduction into evidence of the immigration file did not run

afoul of Crawford and that the district court properly relied on

official, non-testimonial public records admissible under the

Federal Rules of Evidence, in determining that the defendant was a

previously deported alien found in the United States without

permission. I d

. at 4-5. Although G utierrez-Gonzales is an

unpublished opinion and is not precedential, it is persuasive

authority, see 5 TH C IR

. R. 47.5.4, and we adopt its r easoning and

holding.

The CNR admitted into evidence in this case, reflecting the

absence of a record that Rueda-Rivera had received consent to reenter the United States, does not fall into the specific categories

of testimonial statements referred to in Crawford . We decline to6

extend Crawford to reach such a document. We therefore hold that

the district court properly admitted the CNR into evidence.

B

Rueda-Rivera argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are

unconstitutional in the light of Apprendi v. New Jersey , 530 U.S.

466 (2000), because the fact of his prior conviction is an element

of the offense, rather than a sentencing enhancement. As RuedaRivera acknowledges, this argument is foreclosed by Almend arezT orres v. United States

, 523 U.S. 224, 235 (1998). S ee Unite d

States v. Rivera

, 265 F.3d 310, 312 (5th Cir. 2001) (“ Apprendi did

not overrule Almendarez-Torres .”); Apprendi , 530 U.S. at 489-90.

III

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.