UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4138

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HUMBERTO PALACIOS-HERRERA, a/k/a Mario Alberto Peralta-Del 

Castillo, a/k/a Gustava De La Garza-Herrera, a/k/a Gustavo 

De La Garza-Herrera,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Jerome B. Friedman, District 

Judge. (2:09-cr-00106-JBF-1)

Submitted: November 17, 2010 Decided: December 3, 2010

Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Keith Loren 

Kimball, Assistant Federal Public Defender, Caroline S. Platt, 

Research and Writing Attorney, Norfolk, Virginia, for Appellant. 

Neil H. MacBride, United States Attorney, William D. Muhr, 

Assistant United States Attorney, Emily Sowell, Third-Year Law 

Student, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Humberto Palacios-Herrera was convicted of illegally

reentering the United States after having been convicted of a 

felony and deported, in violation of 8 U.S.C. § 1326(a), (b)(1) 

(2006). The district court sentenced him to seventy-two months 

in prison. 

Palacios-Herrera contends that the admission of a 

warrant of deportation into evidence violated the Confrontation 

Clause of the Sixth Amendment. He also asserts that the warrant 

contains the observations of law enforcement officers and thus 

cannot be admitted pursuant to Fed. R. Evid. 803(8)(B). 

We review evidentiary rulings implicating the 

Confrontation Clause de novo. United States v. Abu Ali, 528 

F.3d 210, 253 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 

(2009). The Confrontation Clause bars “admission of testimonial 

statements of a witness who did not appear at trial unless he 

was unavailable to testify, and the defendant had a prior 

opportunity for cross-examination.” Crawford v. Washington, 541 

U.S. 36, 53-54 (2004). “As Crawford and later Supreme Court 

cases make clear, a statement must be ‘testimonial’ to be 

excludable under the Confrontation Clause.” United States v. 

Udeozor, 515 F.3d 260, 268 (4th Cir. 2008) (citing Davis v. 

Washington, 547 U.S. 813 (2006)). Documents “created for the 

administration of an entity’s affairs and not for the purpose of 
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establishing or proving some fact at trial . . . are not 

testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,

2539-40 (2009). 

A warrant of deportation is “not made in anticipation 

of litigation[.] . . . [I]t is simply a routine, objective 

cataloging of an unambiguous factual matter.” United States v. 

Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005). We 

conclude that the warrant of deportation is nontestimonial and 

therefore “not subject to the requirements of the Confrontation 

Clause.” See United States v. Burgos, 539 F.3d 641, 645 (7th 

Cir. 2008) (collecting cases). Therefore, the district court 

did not err in admitting the warrant of deportation into 

evidence.

We further find that the district court did not abuse 

its discretion in admitting the warrant pursuant to Fed. R. 

Evid. 803(8)(B). Rule 803(8)(B) creates an exception to the 

hearsay rule for public records and reports setting forth 

“matters observed pursuant to a duty imposed by law as to which 

matters there was a duty to report, excluding, however, in 

criminal cases matters observed by police officers and other law 

enforcement personnel.” Fed. R. Evid. 803(8)(B).

As noted above, the warrant of deportation in question 

consisted of the routine, objective cataloging of a factual 

matter. Further, the warrant and notations have “none of the 
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features of the subjective report made by a law enforcement 

official in an on-the-scene investigation, which investigative 

reports lack sufficient guarantees of trustworthiness because 

they are made in an adversary setting and likely to be used in 

litigation.” United States v. Hernandez-Rojas, 617 F.2d 533, 

535 (9th Cir. 1980); see also United States v. AgustinoHernandez, 14 F.3d 42, 43 (11th Cir. 1994).

Finally, Palacios-Herrera contends that his sentence 

is unreasonable. We review a sentence for reasonableness under 

an abuse of discretion standard. Gall v. United States, 552 

U.S. 38, 51 (2007). The first step in this review requires us 

to ensure that the district court committed no signficant 

procedural error, such as improperly calculating the guideline 

range, failing to consider the 18 U.S.C. § 3553(a) (2006) 

factors, or failing to adequately explain the sentence. United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Next, we 

review the substantive reasonableness of the sentence, examining 

“the totality of the circumstances to see whether the sentencing 

court abused its discretion in concluding that the sentence it 

chose satisfied the standards set forth in § 3553(a).” United 

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). 

On appeal, we presume that a sentence within a properly 

calculated guideline range is reasonable. United States v. 

Allen, 491 F.3d 178, 193 (4th Cir. 2007).
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We have reviewed the record and Palacios-Herrera’s 

claims and find that his sentence is procedurally and 

substantively reasonable. The district court properly 

calculated the sentencing range under the advisory guidelines, 

addressed the relevant § 3553(a) factors, and imposed a sentence 

in the middle of the sentencing range. Palacios-Herrera’s claim 

that the court erred in “double counting” his prior conviction 

for a base offense level and a criminal history category is 

without merit. See United States v. Crawford, 18 F.3d 1173, 

1174 (4th Cir. 1994). Further, we reject Palacios-Herrera’s 

assertion that his sentence is unreasonable because the 

guideline under which he was sentenced is not based on empirical 

study conducted by the Sentencing Commission. See United States 

v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. 

denied, 130 S. Ct. 192 (2009).

We accordingly affirm the conviction and sentence. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED