United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
_____________________
Charles R. Fulbruge III
No. 04-50322 Clerk
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ENRIQUE RUEDA-RIVERA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:
Oscar Enrique Rueda-Rivera appeals his jury-trial conviction
and sentence for being found in the United States following
deportation and removal, without having obtained the consent of the
Attorney General or the Secretary of the Department of Homeland
Security. We AFFIRM, and write briefly to make clear that the
Certificate of Nonexistence of Record (“CNR”) was properly admitted
into evidence to establish that the Government had not consented to
the defendant’s presence in the country.
I
Rueda-Rivera was charged with re-entering the United States
after removal, without having obtained the consent of the Attorney
General or the Secretary of the Department of Homeland Security.
At trial, the Government presented evidence that Rueda-Rivera was
an alien who had been removed from the United States in 2000, and
that he had been found in the United States after his removal. As
evidence that Rueda-Rivera did not have permission to re-enter the
United States, the Government indicated that it would introduce a
CNR. See United States v. Sanchez-Milam, 305 F.3d 310, 313 (5th
Cir. 2002) (holding that CNR is sufficient to satisfy Government’s
burden of proving that Attorney General had not consented to
application for re-entry). Rueda-Rivera objected, arguing that
allowing the CNR and testimony relating thereto into evidence would
violate his right to confrontation. He argued that he would not
have an opportunity to cross-examine the author of the CNR.
Furthermore, he contended that the CNR had not been in his alien-
registration file when the criminal case was filed, and had been
created only for the purposes of the criminal trial. The district
court overruled the objection.
Border Patrol Agent Bendele identified the CNR and testified
that it reflected that Rueda-Rivera had not received consent to re-
enter the United States. The CNR was admitted into evidence, over
Rueda-Rivera’s renewed objection. The CNR was signed by Ruth E.
Jones, who was identified as “the Chief in the Records Services
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Branch, Office of Records, Headquarters, of the Immigration and
Naturalization Service, United States Department of Justice.” In
the CNR, Jones declared that, pursuant to § 290(d) of the
Immigration and Nationality Act and 8 C.F.R. § 1-3.7(d)(4), she was
“authorized to certify the nonexistence in the records of the
Service of an official file, document, or records pertaining to
specified persons or subjects.” The CNR reflected that the INS
maintains centralized records relating to immigrant aliens who
entered the United States on or after June 30, 1924, and to
nonimmigrant aliens who entered on or after June 30, 1948.
Additionally, the INS maintains a centralized index of all persons
naturalized on or after September 27, 1906. Jones further declared
that, “after a diligent search no evidence [was] found to exist in
the records of the Immigration and Naturalization Service of the
granting of permission for admission into the United States after
deportation or exclusion relating to File No. A-72 209 927, Oscar
Rueda Rivera ....”
Agent Bendele testified that the CNR reflected that a “records
check was conducted” and showed that Rueda-Rivera had not received
consent to re-enter the United States. On cross-examination,
Bendele testified that he did not know what type of search Jones
might have performed in preparing the CNR. He believed that she
“check[ed] the computer immigration system,” but he did not know
what type of files or how many files Jones might have checked.
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When asked whether he had “any idea” what Jones did to prepare the
CNR, Bendele replied, “No, I don’t.”
The jury found Rueda-Rivera guilty, and the district court
sentenced him to 33 months imprisonment and a three-year term of
supervised release. Rueda-Rivera filed a timely notice of appeal.
II
Rueda-Rivera contends that the admission into evidence of the
CNR violated his rights under the Confrontation Clause, and that 8
U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional.
A
Rueda-Rivera relies on the Supreme Court’s recent decision in
Crawford v. Washington, 124 S.Ct. 1354 (2004). Our standard of
review is de novo. United States v. Aguilar-Tamayo, 300 F.3d 562,
564 (5th Cir. 2002).
In Crawford, the Supreme Court held that testimonial, out-of-
court statements by witnesses are barred under the Confrontation
Clause unless the witnesses are unavailable and the defendant had
a prior opportunity to cross-examine them. Crawford, 124 S.Ct. at
1374. The Supreme Court declined to give a full definition of what
“testimonial” statements are, specifically reserving that question
for another day. Id. However, the Court stated that “[w]hatever
else the term covers, it applies at a minimum to prior testimony at
a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Id. The Court also gave two
examples of “statements that by their nature were not testimonial”
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-- business records and statements in furtherance of a conspiracy.
Id. at 1367; see also id. at 1378 (Rehnquist, C.J., concurring in
judgment) (noting that “the Court’s analysis of ‘testimony’
excludes at least some hearsay exceptions, such as business records
and official records”).
In an unpublished opinion, we recently wrote that because the
items in the defendant’s immigration file were non-testimonial, the
Confrontation Clause did not bar their admission. United States v.
Gutierrez-Gonzales, No. 03-51253, p. 4 (5th Cir. Oct. 8, 2004)
(unpublished). We likened an immigration file to business records
and concluded that the file contained statements that by their
nature were not testimonial. Id. Accordingly, we held that the
introduction into evidence of the immigration file did not run
afoul of Crawford and that the district court properly relied on
official, non-testimonial public records admissible under the
Federal Rules of Evidence, in determining that the defendant was a
previously deported alien found in the United States without
permission. Id. at 4-5. Although Gutierrez-Gonzales is an
unpublished opinion and is not precedential, it is persuasive
authority, see 5TH CIR. R. 47.5.4, and we adopt its reasoning and
holding.
The CNR admitted into evidence in this case, reflecting the
absence of a record that Rueda-Rivera had received consent to re-
enter the United States, does not fall into the specific categories
of testimonial statements referred to in Crawford. We decline to
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extend Crawford to reach such a document. We therefore hold that
the district court properly admitted the CNR into evidence.
B
Rueda-Rivera argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are
unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.
466 (2000), because the fact of his prior conviction is an element
of the offense, rather than a sentencing enhancement. As Rueda-
Rivera acknowledges, this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). See United
States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (“Apprendi did
not overrule Almendarez-Torres.”); Apprendi, 530 U.S. at 489-90.
III
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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