United States v. Palacios-Herrera

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. 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 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

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