United States v. Raul Villacana-Ochoa

FILED
NOT FOR PUBLICATION JUN 07 2011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. 10-30267

Plaintiff - Appellee, D.C. No. 2:10-cr-00013-WFN-1

v.
MEMORANDUM *
RAUL VILLACANA-OCHOA,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted May 4, 2011
Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

Raul Villacana-Ochoa appeals his conviction and sentence for unlawful

reentry under 8 U.S.C. § 1326. Villacana-Ochoa contends that the district court

improperly admitted three pieces of evidence at trial: (1) incriminating statements

he made during an interview with an immigration agent; (2) a certificate of non-

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
existence of a record (“CNR”); and (3) a warrant of deportation. He also contends

that he was entitled to a reduction of his sentence for acceptance of responsibility

and that his sentence was unreasonably long. We have jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.1

1. Villacana-Ochoa contends that evidence of incriminating statements he

made during an interview with an immigration agent should have been suppressed

because he was not given a Miranda warning prior to the interview, and the

statements were inadmissible under hearsay rules and the Confrontation Clause.

However, even assuming error in the denial of Villacana-Ochoa’s motion to

suppress, it was harmless because the other evidence at trial was more than

sufficient to support the verdict. See Neder v. United States, 527 U.S. 1, 18 (1999)

(stating that a trial error is harmless if it is “clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error”).

2. Villacana-Ochoa contends that the affiant of the CNR was not a proper

witness at trial for purposes of the Confrontation Clause because the affiant did not

perform the database search himself. Nonetheless, the affiant was a proper witness

because he was the supervisor of the agency staff member that completed the

1
The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.

2 10-30267
search, he was familiar with the search techniques generally used, and he

personally certified the conclusion that no record existed based on the search. Cf.

Melendez-Diaz v. Mass., 129 S. Ct. 2527, 2533-34, 2536 (2009) (explaining that

the Confrontation Clause protects a defendant’s right to cross-examine a witness as

to the witness’s written testimony against the defendant and to test the

trustworthiness of the testimony). Accordingly, the admission of the CNR did not

violate the Confrontation Clause and was not an abuse of discretion.

3. Villacana-Ochoa admits that United States v. Orozco-Acosta, 607 F.3d

1156, 1163-64 (9th Cir. 2010), forecloses his argument that warrants of deportation

are testimonial. Because the panel is bound by Orozco-Acosta, Villacana-Ochoa’s

argument necessarily fails. See United States v. Washington, 593 F.3d 790, 798

n.9 (9th Cir. 2010) (en banc) (stating that three-judge panels are bound by

precedent under the law-of-the-circuit rule).

4. Villacana-Ochoa’s challenges to his sentence are unavailing. Although

he contends he was entitled to a sentence reduction for acceptance of

responsibility despite going to trial, he does not point to any evidence to support

the reduction. See U.S.S.G. § 3E1.1, cmt. n.2 (“a determination that a defendant

has accepted responsibility will be based primarily upon pre-trial statements and

conduct”). Villacana-Ochoa also contends that the district court should have

3 10-30267
reduced his sentence below the guidelines range, but, given Villacana-Ochoa’s

long history of serious criminal and immigration offenses, the district court did not

abuse its discretion by sentencing him in the middle of the guidelines range. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (a defendant’s

sentence is reviewed for an abuse of discretion).

AFFIRMED.

4 10-30267