United States v. Fernandez-Gomez , 341 F. App'x 949 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOMAS FERNANDEZ-GOMEZ, a/k/a Tomas Fernandes, a/k/a Oscar
Perez, a/k/a Tomas Fernadezo Gomez, a/k/a Thomas Fernandez,
a/k/a Fidel Antonio Fernandez Gomez, a/k/a Tomas Gomez,
a/k/a Tomas Fernandez, a/k/a Pachecho Tomas Hernandez, a/k/a
Fidel Antonio Fernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cr-00357-CMH-1)
Submitted: July 29, 2009 Decided: August 17, 2009
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard H.
McWilliams, Assistant Federal Public Defender, Alexandria,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Kristin A. Taylor, Special Assistant United States
Attorney, Gene Rossi, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tomas Fernandez-Gomez was found guilty, following a
jury trial, of illegal reentry after removal from the United
States, in violation of 8 U.S.C. § 1326(a) (2006). The district
court sentenced him to time served, followed by two years of
supervised release. Fernandez-Gomez now appeals.
Fernandez-Gomez’s sole claim on appeal is that the
district court erred in admitting two warrants of deportation
into evidence. He argues that the warrants were admitted in
violation of his rights under the Confrontation Clause of the
Sixth Amendment. He also argues that the warrants contain 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). In Crawford v. Washington, 541 U.S. 36, 53-54 (2004),
the Supreme Court interpreted the Confrontation Clause as
barring “admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-
examination.” “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
2
260, 268 (4th Cir. 2008) (citing Davis v. Washington, 547 U.S.
813 (2006)). After reviewing the warrants of deportation in
this case, we find that they are nontestimonial and are
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). We further find that the
district court did not abuse its discretion in admitting the
warrants 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).
We find that the warrants of deportation in this case
consisted of a “routine, objective, cataloging of [] unambiguous
factual matter[s].” United States v. Bahena-Cardenas, 411 F.3d
1067, 1074-75 (9th Cir. 2005). Additionally, the warrants and
the notations on the back pages have “none of the 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.
3
1980) (holding exception set forth in Rule 803(8)(B) was
inapplicable to warrant of deportation where notation that alien
was deported was “ministerial, objective observation [with]
inherent reliability because of the Government’s need to keep
accurate records of the movement of aliens”); see also United
States v. Agustino-Hernandez, 14 F.3d 42, 43 (11th Cir. 1994)
(holding that the admission of “routinely and mechanically kept
I.N.S. records,” such as a warrant of deportation, does not
violate Rule 803(8)(B)).
Accordingly, we conclude that the district court did
not err in admitting the warrants of deportation into evidence.
We therefore affirm Fernandez-Gomez’s 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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