United States v. Raul Villacana-Ochoa ( 2011 )

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NOT FOR PUBLICATION JUN 07 2011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.
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