United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-40869
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AURELIO VALDEZ-MALTOS, also known as Eduardo Valez-Maltos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:
Aurelio Valdez-Maltos (Valdez) was convicted after a jury
trial of being found unlawfully present in United States
following deportation, and he was sentenced to 77 months of
imprisonment, three years of supervised release, and a $100
special assessment that was ordered remitted on motion of the
Government.
Valdez argues that the district court abused its discretion
in overruling his hearsay objection to Border Patrol Agent Amador
Carbajal’s testimony that there was no record of his application
for permission to enter the United States. He contends that this
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testimony did not qualify under the FED. R. EVID. 803(10) “absence
of public record or entry” exception to the hearsay rule because
Carbajal did not testify that he had performed a diligent search
for the records and because there was no evidence that a diligent
search had been performed. However, Carbajal need not have
specifically testified that a “diligent search failed to disclose
the record,” as long as the testimony and the relevant
circumstances reflected an adequate search. See United States v.
Wilson, 732 F.2d 404, 414 (5th Cir. 1984). The evidence
indicates that a diligent search of both of the names by which
Valdez was known and their corresponding alien registration
numbers was performed by Carbajal. Accordingly, the district
court did not abuse its discretion in overruling Valdez’s hearsay
objection.
Valdez argues that the district court violated the
Confrontation Clause by admitting, over his objection, copies of
two warrants of deportation. He argues that these warrants
constitute “testimonial” hearsay under Crawford v. Washington,
541 U.S. 36 (2004), and were not admissible because there was no
showing that the persons who completed the warrants were
unavailable for trial and because those persons were not
previously subject to cross-examination.
In United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th
Cir. 2005), this court stated generally that documents in a
defendant’s immigration file are analogous to nontestimonial
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business records. In United States v. Quezada, 754 F.2d 1190,
1194-95 (5th Cir. 1985), this court held that a warrant of
deportation contained in an alien’s INS file properly was
admitted under FED. R. EVID. 803(8)(B), determining that a warrant
of deportation was reliable and admissible because the official
preparing the warrant had no motivation to do anything other than
“mechanically register an unambiguous factual matter.” In light
of these cases and the nature of warrants of deportation, we hold
that warrants of deportation do not constitute testimonial
hearsay under Crawford.
Valdez argues that the district court erred in increasing
his offense level by 16 levels based on his prior commission of a
crime of violence. He contends that the Texas offense of
burglary of a habitation, for which he had been convicted in the
past, is not a crime of violence because it does not have as an
element the use, attempted use, or threatened use of physical
force against the person of another and because it is not
equivalent to the enumerated offense of burglary of a dwelling.
Valdez acknowledges that this issue is foreclosed by this court’s
decision in United States v. Garcia-Mendez, 420 F.3d 454, 457
(5th Cir. 2005), petition for cert. filed (Dec. 15, 2005) (No.
05-8542), but he asserts that he is raising the issue to preserve
it for further review. Garcia-Mendez considered the Texas
burglary of a habitation statute and held that “‘burglary of a
habitation’ is equivalent to the enumerated [crime of violence]
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offense of ‘burglary of a dwelling.’” Id. Thus, as Valdez
concedes, under the existing precedent of this court, the
district court did not err in determining that Valdez’s prior
burglary offense was a crime of violence.
Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Valdez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Valdez properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve it for
further review.
AFFIRMED.