**UN PUBLISHED**  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 Gu stavo 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

- J B F
- 1 )
Submitted : November 17, 2010 Decided: December 3 , 2010
Before WILKINSON and WYNN , Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by un published per curiam opinion
. Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Assistant Federal Public Defender, Car oline 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. Unpublish ed opinions are not binding precedent in this circuit.2 PER CURIAM: Humberto Palacios

- Herrera was convicted of illegal ly 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 cont ains 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.” Craw ford 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 of3 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, 107 5 (9th Cir. 2005). We
c onclude 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 no t err in admitting the warrant of deportation into evidence. We further find that the district court did not abuse its disc retion in admitting the warrant pursuant to Fed. R. Evid. 803(8)(B). Rule 803(8)(B) creates an exception to the hearsay rule for p ublic 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 deportat ion in question consisted of the routi ne, objective cataloging of a factual matter. Further, the warrant and notations have “none of the4 features of the subjective report made by a law enforce ment 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, 5 35 (9th Cir. 1980); see also United States v. Agustino

Hernandez , 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 Ci r. 2009). Next, we review the substantive reasonableness of the sentence, examining “the totality of the circumstances to see whether the s entencing 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
c alculated guideline range is reasonable. United States v. Allen , 491 F.3d 178, 193 (4th Cir. 2007).5 We have reviewed the record and Palacios

- Herrera’s claims and find that his sentence is procedurally and substantively reasonable. The district court pr operly 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 conv iction 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 u nder 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 s entence. 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