United States v. Ramon Gonzalez-Rodriguez ( 2010 )

FILED
NOT FOR PUBLICATION JUN 23 2010
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. 09-50266
Plaintiff - Appellee, D.C. No. 3:08-cr-02699-L-1
v.
MEMORANDUM *
RAMON GONZALEZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior United States District Judge, Presiding
Argued and Submitted May 4, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, Senior United
States District Judge.**
Ramon Gonzalez-Rodriguez appeals from the 55-month sentence imposed
following his conviction for attempted reentry following deportation, in violation
of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
1. Gonzalez-Rodriguez contends that the district court improperly admitted
into evidence a warrant of removal/deportation in violation of his rights under the
Sixth Amendment’s Confrontation Clause. As our case law recognizes, a warrant
of removal/deportation is not testimonial in nature. See United States v. Orozco-
Acosta, No. 09-50192, 2010 WL 2089474, at *3–5 (9th Cir. May 26, 2010); United
States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005). Therefore, the
admission of the warrant of removal into evidence at trial did not violate the Sixth
Amendment.
2. Next, Gonzalez-Rodriguez argues that admission of the certificate of
nonexistence of record (“CNR”) violated his rights under the Sixth Amendment’s
Confrontation Clause. As the government concedes, the district court erred in
admitting the CNR. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539
(2009) (plurality) (specifically citing a CNR as an example of testimonial hearsay
requiring confrontation); Orozco-Acosta, 2010 WL 2089474, at *2–3 (9th Cir. May
26, 2010) (recognizing that, under Melendez-Diaz, a CNR is testimonial). The
error, however, was harmless beyond a reasonable doubt. See United States v.
Norwood, 595 F.3d 1025, 1030 (9th Cir. 2010). There was overwhelming
evidence from which a jury could have found that Gonzalez-Rodriguez “had not
obtained the consent of the Attorney General or the Secretary of the Department of
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Homeland Security to reapply for admission into the United States,” Ninth Cir.
Crim. Jury Inst. 9.5A (2003), including the fact that he was found hiding extremely
close to the Mexico border and that he twice confessed to having not sought
permission to re-enter the United States.
3. Finally, Gonzalez-Rodriguez argues that his statements to the border patrol
agents should not have been admitted at trial because he was not properly advised
of his Miranda rights. We disagree. Even though the border patrol agents
prevented Gonzalez-Rodriguez from leaving, used force to capture another
individual in the group, briefly drew their firearms, and interrogated him about his
citizenship and immigration status, the agents were within the bounds of a valid
Terry stop. See United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009);
United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001). Therefore,
Gonazalez-Rodriguez was not in custody at the time he was initially questioned
and was not entitled to a Miranda warning. Accordingly, Gonzalez-Rodriguez’s
statements to police after he was given the Miranda warning were not tainted by a
prior constitutional violation. Thus, Gonzalez-Rodriguez’s pre- and post-Miranda
statements were properly admitted.
AFFIRMED.
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