FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50113 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00484-TJW

ROBERTO CERVANTES-FLORES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

Argued and Submitted

May 4, 2005—Pasadena, California

Filed August 24, 2005

Before: James R. Browning, Raymond C. Fisher and

Jay S. Bybee, Circuit Judges.

Per Curiam Opinion

11429
COUNSEL

Robert H. Rexrode, III, Federal Defenders of San Diego, Inc.,

San Diego, California, for the defendant-appellant. 

Steven E. Stone, Assistant United States Attorney-Criminal

Division, San Diego, California, for the plaintiff-appellee.

OPINION

PER CURIAM: 

Roberto Cervantes-Flores (“Cervantes”) appeals his conviction and sentence for being found in the United States after

11432 UNITED STATES v. CERVANTES-FLORES
deportation in violation of 8 U.S.C. § 1326. Cervantes argues

that the district court erred in: (1) denying him the opportunity

to present a necessity defense to the jury; (2) refusing to

exclude statements he made to a border patrol agent before

receiving Miranda warnings; (3) admitting a certificate of

nonexistence of record in violation of his Sixth Amendment

Confrontation Clause rights in light of Crawford v. Washington, 541 U.S. 36 (2004) — a question of first impression for

this circuit; (4) failing to instruct the jury correctly on one of

the essential elements of the crime; and (5) enhancing his sentence based on facts neither pled nor found by a jury. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm

Cervantes’ conviction, but remand his sentence pursuant to

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). 

I.

In May 1998, United States Border Patrol agents found

Cervantes in the United States without proper documentation.

He was convicted of improper entry by an alien under 8

U.S.C. § 1325, sentenced to 48 months in custody and

removed from the United States from Hidalgo, Texas on January 28, 2003. 

One week later, Border Patrol Agent Jason Wardlow reapprehended Cervantes early in the morning near Tecate, California. Wardlow noticed Cervantes walking along the side of

a highway and then observed him notice the marked border

patrol vehicle and flee. Wardlow jumped from his vehicle and

chased Cervantes into the desert for approximately threequarters of a mile. Upon catching up with him, Wardlow subdued and handcuffed him. Without giving any Miranda warning, Wardlow then asked Cervantes his citizenship, whether

he had immigration documents allowing him to be in the

United States, and how he crossed the border. Cervantes

admitted he was a citizen of Mexico, lacked permission to be

in the United States and had entered illegally. Wardlow then

UNITED STATES v. CERVANTES-FLORES 11433
walked Cervantes back to Wardlow’s vehicle and took him to

the Temecula border patrol station. 

At the station, Agent Alex Markle advised Cervantes of his

Miranda rights, and Agent Nicola Weiss questioned him. Cervantes again admitted he was a citizen of Mexico who had

entered the United States without permission. He signed a

“Record of Sworn Statement” summarizing his statements. 

In October 2003, a jury convicted Cervantes of being a

deported alien found within the United States without the consent of the Attorney General, in violation of 8 U.S.C. § 1326.

The district court later sentenced him to 96 months imprisonment. Cervantes timely appealed his conviction and sentence

to this court. 

II.

A. Necessity Defense Properly Excluded

Cervantes appeals the district court’s preclusion of his

necessity defense at trial. We review the ruling de novo and

hold that the district court did not err. United States v.

Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir. 2001). 

[1] The district court need not submit a defense to the jury

where the proffered evidence, construed most favorably to the

defendant, would fail to establish all elements of that defense.

See United States v. Dorrell, 758 F.2d 427, 430 (9th Cir.

1985). “The sole question presented in such situations is

whether the evidence, as described in the defendant’s offer of

proof, is insufficient as a matter of law to support the proffered defense. If it is, then the trial court should exclude the

defense and the evidence offered in support.” Id. 

[2] An offer of proof sufficient to support a necessity

defense must permit a reasonable jury to conclude:

11434 UNITED STATES v. CERVANTES-FLORES
(1) that [the defendant] was faced with a choice of

evils and chose the lesser evil; (2) that he acted to

prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the

harm to be avoided; and (4) that there were no other

legal alternatives to violating the law. 

Arellano-Rivera, 244 F.3d at 1125-26 (internal quotation

marks omitted). “If the defendant’s offer of proof is deficient

with regard to any of the four elements, the district judge must

grant the motion to preclude evidence of necessity.” Id. at

1126 (internal quotation marks omitted). 

[3] The evidence proffered here did not suffice to support

a necessity defense as a matter of law. A doctor told Cervantes in the fall of 2002 that he was HIV positive and instructed

him to begin making end-of-life decisions. At the time, Cervantes had not been in contact with his children since 1990

and no longer knew where in the United States they lived.

Once removed to Mexico, he sought but did not receive help

locating his children from an official at the United States consulate in Tijuana. Cervantes re-crossed the border with the

intent of traveling to his children’s last known place of residence. He believed he had no legal means of entering the

United States because customs officials had informed him at

the time of his removal that he was not eligible to return under

the ordinary application process. 

The district court found the offer of proof insufficient

because it failed to demonstrate imminent harm. “There was

no threat of [im]minent death or serious bodily injury. Your

offer of proof was he was diagnosed HIV positive. While he

may have a more limited life span than others, there is no

indication whatsoever that his threat of death or serious bodily

injury was [im]minent, which is what the law required.” SER

331. 

UNITED STATES v. CERVANTES-FLORES 11435
[4] We agree with the district court that Cervantes’ testing

positive for HIV did not constitute imminent harm. He failed

to demonstrate that the disease created a threat of death or

other serious, immediate harm.1 For the same reason, Cervantes did not show that he was in imminent danger of losing his

final opportunity to speak to his children. Accordingly, the

district court did not err in precluding a necessity defense. 

B. Suppression of Statements Made Prior to Miranda

Warning

Cervantes appeals the district court’s refusal to suppress

statements that he made before he received a Miranda warning. We review denial of a motion to suppress de novo,

United States v. Moreno-Flores, 33 F.3d 1164, 1168 (9th Cir.

1994), as well as whether a defendant is in custody for

Miranda purposes. United States v. Kim, 292 F.3d 969, 973

(9th Cir. 2002). 

[5] Agent Wardlow had reasonable suspicion to stop Cervantes. While walking along a highway known to be a smuggling route approximately 40 miles north of the United States

border, Cervantes saw Wardlow’s marked vehicle and immediately turned and attempted to flee. “Any number of factors

may be taken into account in deciding whether there is reasonable suspicion to stop [someone] in the border area . . . .

[B]ehavior may be relevant, as . . . obvious attempts to evade

officers can support a reasonable suspicion.” United States v.

Brignoni-Ponce, 422 U.S. 873, 884-85 (1975); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[I]t was not

merely respondent’s presence in an area of heavy narcotics

trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also

recognized that nervous, evasive behavior is a pertinent factor

in determining reasonable suspicion.”). 

1On appeal, Cervantes adds that he needed medication that he could not

obtain in Mexico. As Cervantes did not include this argument in his proffer before the district court, we do not address it here. 

11436 UNITED STATES v. CERVANTES-FLORES
[6] Given that Wardlow had reasonable suspicion to make

a Terry stop, he could ask Cervantes questions “reasonably

related in scope to the justification for their initiation.” Terry

v. Ohio, 392 U.S. 1, 29 (1968). An “officer may question

[individuals reasonably detained near the border] about their

citizenship and immigration status, and he may ask them to

explain suspicious circumstances, but any further detention or

search must be based on consent or probable cause.”

Brignoni-Ponce, 422 U.S. at 881-82. Wardlow asked Cervantes about his place of birth, his citizenship, whether he had

permission to be in the United States and how he had crossed

into the United States. These questions were reasonably limited in scope to determining whether Cervantes had crossed

the border illegally. Cervantes sought to suppress only his

statements made in response to Wardlow’s questions, and he

conceded no one asked him additional questions until after

Agent Markle read him his Miranda rights. 

[7] By handcuffing Cervantes, Agent Wardlow did not convert the Terry stop into a custodial arrest. “Handcuffing a suspect does not necessarily dictate a finding of custody.” United

States v. Booth, 669 F.2d 1231, 1236 (9th Cir. 1981). Where

a suspect threatens physical danger or flight, officers may use

handcuffs in the course of a Terry stop. See Washington v.

Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996) (“[W]e have

only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as . . . where the suspect is uncooperative or takes action at the scene that raises

a reasonable possibility of danger or flight . . . .”); United

States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir. 1982).

Cervantes led Agent Wardlow on a chase away from his car

into the desert. Doing so both increased the risk to Wardlow

and demonstrated an intention to evade arrest. Under these

circumstances, Wardlow’s use of handcuffs was justified. 

[8] In sum, Wardlow had reasonable suspicion to make an

initial Terry stop. He limited the scope of his questions to

investigating that suspicion alone. His use of handcuffs was

UNITED STATES v. CERVANTES-FLORES 11437
justified by Cervantes’ flight and Wardlow’s safety concern

and thus did not convert the stop into a custodial arrest.

Accordingly, we hold that the district court did not err in

admitting the statements Cervantes made in response to Agent

Wardlow’s questions. 

C. Admissibility of Certificate of Nonexistence of Record

Cervantes also appeals the district court’s order denying his

motion to exclude from evidence a certificate of nonexistence

of record (“CNR”) submitted by the government to prove that

Cervantes had not received the Attorney General’s consent to

reenter the United States. See 8 U.S.C. § 1326(a)(2)(A) (providing that any alien who is found in the United States after

having been deported or removed is guilty of an offense under

§ 1326 unless, “prior to his reembarkation at a place outside

the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly

consented to such alien’s reapplying for admission”).2 The

CNR, prepared by the Immigration and Naturalization Service

(“INS”) and introduced into evidence by the government,

stated: 

I, Ruth E. Jones, certify to the following. . . . That

after a diligent search no evidence is found to exist

in the records of the Immigration and Naturalization

Service of the granting of permission for admission

2The CNR, like the jury instruction challenged below, does not precisely mirror the language of § 1326. The CNR certifies that no evidence

existed in the INS files that the Attorney General had granted Cervantes

permission to “reenter” the United States; § 1326 requires absence of

“consent . . . to reapply[ ] for admission” to the United States. Although

Cervantes does not challenge the CNR on this basis, we note that, in the

context of the administrative process, the difference is not material

because “the Attorney General’s consent to apply for admission is tantamount to his consent to the admission itself.” United States v. SanchezMilam, 305 F.3d 310, 312 (5th Cir. 2002). 

11438 UNITED STATES v. CERVANTES-FLORES
into the United States after deportation of exclusion

relating to . . . Roberto Cervantes-Flores.3

[9] Cervantes contends that admission of this certificate,

absent live testimony by Jones, or proof that she was unavailable to testify and that he had a prior opportunity to crossexamine her, violated his rights under the Sixth Amendment’s

Confrontation Clause as recently articulated by the Supreme

Court in Crawford v. Washington, 541 U.S. 36 (2004). This

is a question of first impression in this circuit. We review the

alleged violation of the Confrontation Clause de novo, see

Lilly v. Virginia, 527 U.S. 116, 137 (1999), and hold that the

CNR was properly admitted as nontestimonial evidence under

Crawford. 

[10] The Sixth Amendment requires that a defendant in a

criminal prosecution “enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. In

Crawford, the Supreme Court rejected “the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements

introduced at trial depends upon the law of Evidence.” Crawford, 541 U.S. at 51 (citation and internal quotation marks

omitted). Turning to history as a guide, the Court concluded

that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Id. at 53-54.

Admissibility under the Sixth Amendment thus turns not on

the Federal Rules of Evidence or questions of reliability, but

on whether the evidence in question is testimonial in nature:

Where nontestimonial hearsay is at issue, it is wholly

3On March 1, 2003, the INS officially ceased to exist, and its functions

were transferred to the Department of Homeland Security (“DHS”). We

continue to refer to the INS, however, because the CNR refers to the INS

and its records. 

UNITED STATES v. CERVANTES-FLORES 11439
consistent with the Framers’ design to afford the

States flexibility in their development of hearsay law

. . . . Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination. 

Id. at 68. 

[11] Despite heavy reliance on this testimonial/

nontestimonial distinction, the Court declined in Crawford to

explicate fully the meaning of either term: “We leave for

another day any effort to spell out a comprehensive definition

of ‘testimonial.’ ” Id. The opinion does, however, provide

some guidance for ascertaining whether evidence is testimonial. The Court first stated that the Sixth Amendment incorporates the common law exceptions to the hearsay rule, as

“[m]ost of the hearsay exceptions covered statements that by

their nature were not testimonial.” Id. at 56; see also id. at 54

(“[The Confrontation Clause] is most naturally read as a reference to the right of confrontation at common law, admitting

only those exceptions established at the time of the founding.”). The CNR does not, however, fall clearly within either

the common law hearsay rule or any of its common law

exceptions. Certificates of nonexistence of a record were

inadmissible under the common law, but not because they

were hearsay but rather because of the rule of “completeness,”

which required entry of the whole of a document or class of

documents rather than excerpts or selections. See 5 Wigmore

§ 1678 (“Upon the common law principle [of completeness],

a custodian of documents . . . lacked authority to certify that

a specific document did not exist in his office or that a particular entry was not to be found in a register.” (emphasis omitted)).4

4The Advisory Committee Notes to the 1972 proposed amendments to

Federal Rule of Evidence 803, which does except the CNR from the hearsay rule as a public or official record, also suggest that evidence that a

11440 UNITED STATES v. CERVANTES-FLORES
Crawford also offered examples of testimonial statements

— “prior testimony at a preliminary hearing, before a grand

jury, or at a former trial,” and “police interrogations”; and of

nontestimonial statements — “business records or statements

in furtherance of a conspiracy.” Id. at 56; see also id. at 76

(Rehnquist, C.J. concurring) (interpreting the majority’s

exceptions as including official records as well as business

records). The Fifth Circuit relied on these examples to hold

that a CNR is nontestimonial in nature because it closely

resembles a business record. See United States v. RuedaRivera, 396 F.3d 678, 680 (5th Cir. 2005) (stating that the

documents in a defendant’s immigration file are analogous to

nontestimonial business records and that “[t]he CNR . . . ,

reflecting the absence of a record . . . , [does] not fall into the

specific categories of testimonial statements referred to in

Crawford”). We agree. 

[12] By issuing the CNR, Jones certified that a record that

the INS would keep in the course of its regularly conducted

activities did not exist in the agency’s files. She certified this

fact in the same manner that she would certify that such a

record did exist in those files and that it was an official record

of the INS. See, e.g., 8 C.F.R. § 103.7(d) (authorizing certain

officials to certify “copies of files, documents, and records in

the custody of [the Central Office of the Department of

Homeland Security] and authorizing Ruth Jones to certify

“the non-existence of an official Service record[ ]”). In either

case, someone would have had to search the INS database to

verify the document’s existence or nonexistence. 

It is true that Jones’ certificate was prepared for litigation,

one of the circumstances that Crawford emphasized as a conrecord does not exist arguably is not hearsay at all. See Fed. R. Evid.

803(7) advisory committee’s note (“While probably not hearsay . . . , decisions may be found which class [evidence of nonexistence] not only as

hearsay but also as not within any exception. In order to set the question

at rest in favor of admissibility, it is specifically treated here.”). 

UNITED STATES v. CERVANTES-FLORES 11441
cern of the Sixth Amendment. However, the document her

certification addresses is part of a class of documents that

were not prepared for litigation. Adopting the concerns of the

common law, the Court in Crawford based its distinction

between testimonial and nontestimonial evidence in part on

skepticism of government officers preparing evidence against

a defendant: 

Involvement of government officers in the production of testimony with an eye toward trial presents

unique potential for prosecutorial abuse — a fact

borne out time and again throughout a history with

which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay

exception, even if that exception might be justifiable

in other circumstances. 

Crawford, 541 U.S. at 56 n.7. Cervantes contends that the

CNR is just such a document — prepared by an INS official

at the request of a federal prosecutor for use in the prosecution against the defendant — but Cervantes mischaracterizes

the CNR. 

[13] The CNR certifies the nonexistence of a record within

a class of records that themselves existed prior to the litigation, much like business records. Cf. United States v. BahenaCardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (holding

that a warrant of deportation, which included a statement that

the officer who signed the warrant “witnessed” the defendant’s departure, was nontestimonial under Crawford because

it is a “routine, objective, cataloguing of an unambiguous factual matter”). Thus, had the Attorney General in fact denied

Cervantes’ application for consent, a government official

would have prepared — for trial — a certification that the

denial (which could be submitted in evidence as an extant

document) was indeed an official record. Conversely, the

CNR states that no such preexisting public record, which

11442 UNITED STATES v. CERVANTES-FLORES
would have been created and kept in the ordinary course of

the INS’s regular course of operations, can be found in those

official records. 

In Cervantes’ case, the district court — before admitting

the CNR under the public records exception set forth in Federal Rule of Evidence 803(10) — found that the CNR certified the absence of a record “regularly made and preserved

by” the INS. See Fed. R. Evid. 803(10) (“The following are

not excluded by the hearsay rule, even though the declarant

is available as a witness: To prove the absence of a record . . .

or nonexistence of a matter of which a record . . . was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule

902, or testimony, that diligent search failed to disclose the

record.”); see also Fed. R. Evid. 803(6) advisory committee’s

note (stating that the “element of unusual reliability of business records is said variously to be supplied by systematic

checking, by regularity and continuity which produce habits

of precision, by actual experience of business in relying upon

them, or by a duty to make an accurate record as part of a

continuing job or occupation” and that the phrase “course of

a regularly conducted activity” is intended to capture the “essential basis” of the business records exception). Although

Jones made the certification at the request of the prosecutor,

the class of records as to whose contents she prepared her certification were created and kept in the ordinary course of the

INS’s activities, prior to and regardless of Cervantes’ prosecution. 

Finally, we note the obvious — that the CNR does not

resemble the examples of testimonial evidence given by the

Court. “Police interrogations” and “prior testimony at a preliminary hearing, before a grand jury, or at a former trial” all

involve live out-of-court statements against a defendant elicited by a government officer with a clear eye to prosecution.

Crawford, 541 U.S. at 56. Ruth Jones’ certification that a parUNITED STATES v. CERVANTES-FLORES 11443
ticular record does not exist in the INS’s files bears no resemblance to these types of testimonial evidence. 

[14] We hold that the CNR is nontestimonial evidence

under Crawford and thus was properly admitted by the district

court. 

D. Jury Instructions

Cervantes argues that his conviction should be reversed

because the jury instructions misrepresented one of the elements of 8 U.S.C. § 1326. Section 1326 provides that an alien

who has previously been deported commits a criminal act by

entering or being found in the United States — unless “the

Attorney General has expressly consented to such alien’s

reapplying for admission” to the country. 8 U.S.C.

§ 1326(a)(2)(A) (emphasis added). The Ninth Circuit Model

Jury Instruction used at Cervantes’ trial required the government to prove that Cervantes “was found in the United States

without the consent of the Attorney General of the United

States.”5 This jury instruction, according to Cervantes, erroneously allowed the jury to convict Cervantes if it found he had

received permission to reapply for entry but had not yet

received permission to enter. 

Cervantes’ argument relies on a misapprehension of the

administrative process. As the Fifth Circuit has explained, as

5The jury instruction read in full: 

[T]he government must prove each of the following elements

beyond a reasonable doubt: 

First, the defendant is an alien; 

Second, the defendant was deported from the United States; 

Third, the defendant was found in the United States without the

consent of the Attorney General of the United States; and 

Fourth, at the time the defendant was found in the United States

he was free from official restraint. 

11444 UNITED STATES v. CERVANTES-FLORES
a functional matter, “the Attorney General’s consent to apply

for admission is tantamount to his consent to the admission

itself.” Sanchez-Milam, 305 F.3d at 312. A previously

deported alien who wishes to reenter the United States undergoes a two step application process. The alien first requests

the Attorney General’s consent to reapply for admission to the

United States. 8 C.F.R. § 212.2. If the Attorney General

grants consent, the alien then applies not to the Attorney General but to the State Department for a visa authorizing entry.

See 22 C.F.R. § 42.61. The only consent granted by the Attorney General in this process is consent to reapply to the State

Department for admission to the United States. Once this consent to reapply has been granted, the alien has received the

Attorney General’s consent but lacks that of the State Department. 

[15] The instruction requiring the jury to find that Cervantes “was found in the United States without the consent of the

Attorney General of the United States” thus can only refer to

the consent of the Attorney General to reapply to the State

Department for admission. While ambiguous and perhaps in

need of clarification, the instruction does not misstate the element of the crime.6

 Further, any ambiguity was harmless in

this case. See United States v. Jimenez-Borja, 378 F.3d 853,

858 (9th Cir. 2004) (applying the harmless error rule to

review of jury instructions). Cervantes has never argued or

presented evidence to demonstrate that he applied for or

received any form of consent from the Attorney General. 

E. Sentencing

[16] Finally, Cervantes argues that his Sixth Amendment

6Although we find the ambiguity harmless here, we acknowledge that

had the defendant presented evidence of the Attorney General’s consent

to reapply, the instruction might have misled the jury into finding that consent inadequate. As that case is not before us, we do not address the proper

formulation of the jury instructions in that situation. 

UNITED STATES v. CERVANTES-FLORES 11445
rights were violated when the district court found facts related

to his prior conviction and enhanced his sentence under the

United States Sentencing Guidelines. See U.S.S.G.

§ 2L1.2(b). This argument, based on Blakely v. Washington,

592 U.S. 296 (2004), is foreclosed by United States v.

Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004).

Because the Sentencing Guidelines are no longer binding,

however, and we cannot ascertain whether the district court

would have imposed a different sentence under a discretionary regime, we remand to the district court for discretionary

reconsideration of the sentence in light of United States v.

Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). 

Conviction AFFIRMED; REMANDED for sentencing

proceedings. 

11446 UNITED STATES v. CERVANTES-FLORES