UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4378
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAVIER ENRIQUE MENDOZA-ORELLANA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-309)
Submitted: April 27, 2005 Decided: June 3, 2005
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Sue Genrich Berry, BOWEN, BERRY AND POWERS, P.L.L.C., Wilmington,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Javier Enrique Mendoza-Orellana appeals from his judgment
of conviction and sentence, based on a jury verdict finding him
guilty of transporting an illegal alien within the United States,
in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (B) (ii) (2000).
Mendoza-Orellana appeals his conviction, alleging that the district
court plainly erred in admitting a Certificate of Nonexistence of
Record (“CNR”) allegedly in violation of Mendoza-Orellana’s
confrontation clause rights. He also alleges plain error relative
to his sentence under United States v. Booker, 125 S. Ct. 738
(2005), when the district court enhanced his sentence pursuant to
U.S. Sentencing Guidelines Manual § 2L1.1(b)(2)(A) (2003) (three
levels), and USSG § 3C1.1 (two levels). In accordance with our
discussion below, we affirm Mendoza-Orellana’s conviction, but
vacate his sentence and remand to the district court for
resentencing.
Mendoza-Orellana first challenges the district court’s
admission of evidence regarding the immigration status of Claudia
Rodriguez-Beron, Cesar Augusto Bautista-Cornejo, Cesar Humberto
Suarez-Salinas, William Fernandez, Fabricio Froes-Santos, and Joel
Salvo DaSilva. Given defense counsel’s failure to object to the
introduction of this evidence in the district court, we review this
issue for plain error. United States v. Olano, 507 U.S. 725, 731-
32 (1993). Mendoza-Orellana specifically challenges the
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Government’s introduction of a “CNR” (Exhibit 4A), bearing the seal
of a United States agency, through Agent Chandler. This CNR
reflected that Ms. Rodriguez-Beron held an illegal alien status at
the time of Mendoza-Orellana’s offense. In addition, later in his
testimony, Agent Chandler testified that he and another agent
interviewed other individuals, and that he determined that the
other five individuals transported by Mendoza-Orellana likewise
were present illegally in the United States on July 23, 2003.
Mendoza-Orellana contends that Exhibit 4A was testimonial hearsay
introduced in violation of his Sixth Amendment right to
confrontation, as was Agent Chandler’s testimony as to the status
of the other individuals, some of whom he did not personally
interview. The underlying basis for Mendoza-Orellana’s objection
is Crawford v. Washington, 541 U.S. 36 (2004).
Here, while the district court did not admit the CNR as
a business record, the record was admitted as a self-authenticating
public record based upon Fed. R. Evid. 803(10) and 902. As such,
we find that it should not be considered testimonial hearsay under
Crawford. Id. at 56, 76; see also United States v. Rueda-Rivera,
F.3d , 2005 WL 39763 (5th Cir. 2005) (admission of CNR not
violative of Confrontation Clause, CNR is official, non-testimonial
public record admissible under the Federal Rules of Evidence, and
CNR admission not included in testimonial documents barred by
Crawford). Moreover, given the other evidence of Ms. Rodriguez-
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Beron’s illegal status, we find that Mendoza-Orellana cannot show
prejudice in the admission of the record. Finding no plain error
in the district court’s admission of the CNR, we affirm Mendoza-
Orellana’s conviction.1
Next, Mendoza-Orellana claims error in the district
court’s enhancement of his sentence. Specifically, in determining
the applicable sentencing range under the sentencing guidelines,
the probation officer calculated a base offense level of twelve,
and then applied a three level enhancement of Mendoza-Orellana’s
base offense level for transporting six or more unlawful aliens,
pursuant to USSG § 2L1.1(b)(2)(A). The district court adopted this
enhancement, and then further enhanced Mendoza-Orellana’s sentence
by two levels for giving false testimony concerning a material
matter, pursuant to USSG § 3C1.1. In full accordance with the law
and procedure in effect at the time of sentencing, the district
court applied the guidelines as a mandatory determinant in
sentencing, and sentenced Mendoza-Orellana based on judicially-
determined facts found by a preponderance of the evidence, rather
than facts found by the jury beyond a reasonable doubt.
Ultimately, the district court sentenced Mendoza-Orellana to
1
Mendoza-Orellana’s challenge to Agent Chandler’s testimony as
to the immigration status of the other individuals is a sentencing
issue that relates to the three-level enhancement by the district
court of Mendoza-Orellana’s base offense level pursuant to USSG
§ 2L1.1(b)(2)(A), and is addressed in our discussion regarding his
sentence.
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twenty-seven months’ imprisonment and three years of supervised
release.
On appeal, Mendoza-Orellana contends that the application
of the enhancements, which increased his range of imprisonment
under the guidelines, constitute plain error under the Supreme
Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),
United States v. Booker, 125 S. Ct. 738 (2005), and this court’s
decision in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
because it was based upon facts not found by the jury beyond a
reasonable doubt. In Booker, the Supreme Court applied the Blakely
decision to the federal sentencing guidelines and concluded that
the Sixth Amendment is violated when a district court imposes a
sentence under the sentencing guidelines that is greater than a
sentence based solely upon facts found by the jury. Booker, 125 S.
Ct. at 752-56. The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (West
Supp. 2004) (requiring sentencing court to impose a sentence within
the applicable guideline range), and 18 U.S.C.A. § 3742(e) (West
2000 & Supp. 2004) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. Hughes,
401 F.3d at 546 (citing Booker, 125 S. Ct. at 757 (Breyer, J.,
opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
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relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a court imposes a sentence outside the
guideline range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546. This remedial scheme applies
to any sentence imposed under the mandatory sentencing guidelines,
regardless of whether or not the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,
J., opinion of the Court)).
In this case, as in Hughes, the district court sentenced
Mendoza-Orellana by applying the guidelines as a mandatory
determinant in sentencing and based upon facts not authorized by
the jury’s findings. In light of the change in the law, we
conclude that the district court erred in determining Mendoza-
Orellana’s sentence, that the error was plain and affected Mendoza-
Orellana’s substantial rights, and that we should exercise our
discretion to notice the error. We therefore vacate Mendoza-
Orellana’s sentence and remand for resentencing.2
2
Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The
sentence must be 'within the statutorily prescribed range and . . .
reasonable.' Id. at 547.
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Accordingly, although we affirm Mendoza-Orellana’s
conviction, we vacate his sentence and remand to the district court
for resentencing in accordance with Booker and Hughes. 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 IN PART,
VACATED IN PART, AND REMANDED
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