United States Court of Appeals

for the Fifth Circuit

No. 19-50245

United States of America, 

Plaintiff—Appellee,

versus

Marvin Danilo Vasquez-Cortez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:19-CR-91-1

Before Jones, Haynes, and Ho, Circuit Judges.

Per Curiam:*

Marvin Danilo Vasquez-Cortez appeals his conviction for illegal 

reentry into the United States, arguing his rights under the Sixth 

Amendment’s Confrontation Clause were violated by the admission of a 

certificate of nonexistence of record (CNR) at trial. We conclude that any

error was harmless and so the district court is AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should 

not be published and is not precedent except under the limited circumstances set forth in 

5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 30, 2020

Lyle W. Cayce

Clerk

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I. Background

Vasquez-Cortez was charged with illegal reentry into the United 

States. On February 22, 2019, the Government filed a notice of intent to 

introduce at trial a CNR showing that a diligent search failed to disclose any 

records indicating Vasquez-Cortez had obtained permission to reapply for 

admission to the United States. In a joint motion in limine filed March 5, 

2019, Vasquez-Cortez raised a Confrontation Clause objection to admitting 

the CNR into evidence without live testimony from the person who prepared 

the CNR. The Government responded that Vasquez-Cortez failed to timely 

file his objection pursuant to Federal Rule of Evidence 803(10). At the 

pretrial hearing, the district court agreed with the Government and denied 

Vasquez-Cortez’s objection as untimely.

At trial, the district court overruled Vasquez-Cortez’s renewed 

objection to admitting the CNR into evidence. The Government read the 

CNR aloud to the jury but did not make the individual who prepared the 

CNR available for cross-examination. Instead, the Government presented 

testimony from Border Patrol agent Christian Maldonado, who explained the 

CNR indicated that, based on a search of multiple government databases, 

there was no record showing Vasquez-Cortez applied for or received 

permission to reenter the United States. The Government also presented 

testimony from two other Border Patrol agents who stated they found 

Vasquez-Cortez near the border at night, lying face down and wearing dark 

clothing that was wet from the waist down as if he had gone through a canal 

on the north side of the border fence. The agents further testified that 

Vasquez-Cortez told them he was from El Salvador, did not have any

documents permitting him to be in the United States, and entered illegally by 

jumping over the border fence.

The jury found Vasquez-Cortez guilty, and he was sentenced to time 

served. He filed a timely notice of appeal.

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II. Discussion

This court reviews alleged Confrontation Clause violations de novo, 

subject to harmless error analysis. See United States v. Tirado-Tirado, 

563 F.3d 117, 122 (5th Cir. 2009). The Sixth Amendment affords a criminal 

defendant the right “to be confronted with the witnesses against him.” U.S. 

Const. amend. VI. The parties agree the CNR is a testimonial statement 

subject to the confrontation right, but they disagree as to whether VasquezCortez waived his Confrontation Clause challenge by failing to object within 

the time period required by Rule 803(10). This court need not decide the 

issue, however, because any Confrontation Clause error in this case was 

harmless.

To convict Vasquez-Cortez for illegal reentry under 8 U.S.C. § 1326, 

the Government was required to prove Vasquez-Cortez (1) was an alien; 

(2) was previously removed from the United States; (3) knowingly entered 

or was found in the United States; and (4) did not have permission to reenter. 

United States v. Martinez-Rios, 595 F.3d 581, 583 (5th Cir. 2010). The CNR 

relates to the fourth factor. For a preserved constitutional error to be 

harmless, there must be no “reasonable possibility that the evidence 

complained of might have contributed to the conviction.” United States v. 

Duron-Caldera, 737 F.3d 988, 996 (5th Cir. 2013) (quotation marks and 

citation omitted). Relevant considerations include the importance of the 

challenged testimony in the Government’s case, whether the testimony was 

cumulative, the presence or absence of evidence corroborating or 

contradicting the testimony on material points, the extent of crossexamination otherwise permitted, and the overall strength of the 

Government’s case. See id. The conviction “must stand if, upon a reading 

of the trial record, the court is firmly convinced that the evidence of 

petitioner’s guilt was overwhelming and that the jury would have reached the 

same result without the tainted evidence.” Zilka v. Estelle, 529 F.2d 388, 392 

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(5th Cir. 1976). It is the Government’s burden to show the error is “harmless 

beyond a reasonable doubt.” Tirado-Tirado, 563 F.3d at 126.

Although the Government pointed to the CNR as one piece of 

evidence showing Vasquez-Cortez did not have the required permission to 

reenter, it spent significantly more time at trial emphasizing other evidence 

proving this element of the crime, including the Border Patrol agents’ 

testimony.

In addition to the CNR, the Government presented testimony from 

two Border Patrol agents who stated they found Vasquez-Cortez lying face 

down near the border at night, wearing dark clothing that was wet from the 

waist down as if he had gone through a canal on the north side of the border 

fence. The agents further testified Vasquez-Cortez told them he was from El 

Salvador, did not have documents permitting him to be in the United States, 

and entered illegally by jumping over the border fence.

The CNR was also cumulative because “substantial evidence 

supports the same facts and inferences” as those in the CNR. See United 

States v. Demmitt, 706 F.3d 665, 673 (5th Cir. 2013). The circumstances of 

Vasquez-Cortez’s arrest and the Border Patrol agents’ testimony that he told 

them he did not have documents permitting him to be in the United States 

and had illegally crossed the border all support the facts and inferences in the 

CNR. Thus, there is ample evidence corroborating the CNR; in contrast, 

there is no evidence in the record contradicting the CNR. The overwhelming 

evidence of Vasquez-Cortez’s guilt in the record supports the conclusion that 

the jury would have reached the same result without the CNR. See Zilka, 

529 F.2d at 392.

This court reached the same conclusion in United States v. BedollaTalavera, 593 F. App’x 413 (5th Cir. 2015) (per curiam), an unpublished 

opinion that involved similar facts and an identical Confrontation Clause 

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challenge to the admission of a CNR.1 In Bedolla-Talavera, the trial evidence 

established the defendant was found lying on the ground facedown near the 

Rio Grande, wearing pants that were wet below the knees. Id. at 414. The 

defendant admitted he had no documentation and told a Border Patrol agent 

he was a Mexican citizen. Id. Based on this evidence, this court stated it was 

convinced that “any error resulting from admission of the CNR was 

harmless.” Id.

Given the foregoing, the Government has met its burden of showing 

any error arising from the admission of the CNR was harmless beyond a 

reasonable doubt. See Zilka, 529 F.2d at 392. The district court’s judgment 

is AFFIRMED.

1 Although unpublished opinions issued in or after 1996 “are not precedent” 

except in limited circumstances, 5TH CIR.R. 47.5.4, they are “highly persuasive” authority 

where, as here, they “specifically reject an argument identical to the one raised,” United 

States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015) (quotation marks and citation omitted).

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