United States v. Diaz-Gutierrez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO DIAZ-GUTIERREZ,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00114-FDW-CH-1)
Submitted: September 21, 2009 Decided: December 7, 2009
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Diaz-Gutierrez was convicted of illegal
reentry following removal from the United States, in violation
of 8 U.S.C. § 1326(a) (2006). The district court sentenced him
to seventy-two months in prison. Diaz-Gutierrez appeals,
contending that the admission of a warrant of deportation into
evidence violated the Confrontation Clause of the Sixth
Amendment. We affirm.
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). The Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53-54 (2004). “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 260, 268 (4th Cir. 2008) (citing Davis v.
Washington, 547 U.S. 813 (2006)).
Documents “created for the administration of an
entity’s affairs and not for the purpose of establishing or
proving some fact at trial . . . are not testimonial.”
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009).
2
A warrant of deportation is “not made in anticipation of
litigation[.] . . . [I]t is simply a routine, objective
cataloging of an unambiguous factual matter.” United States v.
Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005). We
conclude, as have all Circuits to have considered the question,
that a warrant of deportation is nontestimonial and 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). Therefore, the district court did not err
in admitting the warrant of deportation into evidence.
We accordingly affirm. 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
3