FILED
NOT FOR PUBLICATION MAR 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50126
Plaintiff - Appellee, D.C. No. 3:08-cr-03236-WQH
v.
MEMORANDUM *
ANTONIO DIAZ-DELGADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Antonio Diaz-Delgado appeals from his jury-trial conviction and 38-month
sentence imposed for being a deported alien found in the United States, in violation
of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Diaz-Delgado contends that the admission into evidence of a certificate of
non-existence of record (“CNR”) at trial violated his rights under the Sixth
Amendment’s Confrontation Clause. The admission of the CNR was harmless
error because the CNR was cumulative of other evidence demonstrating Diaz-
Delgado’s lack of permission to re-enter the United States, including Diaz-
Delgado’s admission that he returned illegally, and an Immigration and Customs
Enforcement Agent’s testimony that there was no evidence of permission to re-
enter in Diaz-Delgado’s A-file or computer databases. See United States v.
Orozco-Acosta, 607 F.3d 1156, 1161-62 (9th Cir. 2010).
Diaz-Delgado also contends that Nijhawan v. Holder, 129 S. Ct. 2294
(2009), effectively overruled Almendarez-Torres v. United States, 523 U.S. 224
(1998), such that his prior felony conviction had to be found by a jury before
subjecting him to a greater maximum sentence under 8 U.S.C. § 1326(b). The
district court did not err by treating Diaz-Delgado’s prior felony conviction as a
sentencing enhancement and increasing his statutory maximum sentence. See
United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (holding that
Almendarez-Torres is binding unless it is expressly overruled by the Supreme
Court).
Finally, Diaz-Delgado contends the district court failed to properly apply the
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parsimony principle embodied in 18 U.S.C. § 3553(a). The record reflects that the
district court did not procedurally err, and that Diaz-Delgado’s sentence is not
substantively unreasonable in light of the totality of the circumstances. See United
States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
AFFIRMED.
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