Case: 08-41340 Document: 00511169957 Page: 1 Date Filed: 07/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2010
No. 08-41340
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DIEGO ORTEGA-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-350-ALL
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Border Patrol agents found Diego Ortega-Martinez hiding under a tree
near the United States-Mexico border in the middle of the night. He
acknowledged he did not have immigration documents and admitted to the
agents under oath that he was a citizen of Mexico, he had previously been
deported from the United States, and he had reentered the United States the
previous day without receiving permission from the United States Government.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 08-41340 Document: 00511169957 Page: 2 Date Filed: 07/12/2010
No. 08-41340
After hearing this evidence at trial, a jury convicted Ortega-Martinez of
being found unlawfully present in the United States and he was sentenced to a
forty-eight month prison term.1 Ortega-Martinez appeals his conviction arguing
the introduction into evidence, without objection, of a certificate of nonexistence
of record (CNR), which certified the government had no records showing Ortega-
Martinez received permission to return to the United States, violated the
Confrontation Clause of the Sixth Amendment. At trial, the federal agent who
testified to the contents of the CNR did not personally prepare the certification.
The parties agree review is for plain error.2 Although we have held that
admitting into evidence a CNR without the testimony of the person who
prepared it violates the Confrontation Clause, Ortega-Martinez still must show
the admission of the CNR infringed his substantial rights, that the violation
created a reasonable probability the jury reached a different conclusion than it
would have absent introduction of the CNR.3 This Ortega-Martinez cannot do,
given the government’s overwhelming evidence, including Ortega-Martinez’s
sworn admissions to the disputed elements of the crime.
AFFIRMED.
1
See 8 U.S.C. §§ 1326(a) & (b)(1).
2
See United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010).
3
See id. at 587.
2