United States v. Gonzalez Ramirez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 7, 2005
Charles R. Fulbruge III
Clerk
No. 05-40028
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL DE JESUS GONZALEZ RAMIREZ,
also known as Ruben Contreras-Lopez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-361-ALL
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Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Abel De Jesus Gonzalez Ramirez, a/k/a Ruben Contreras-
Lopez(“Ramirez”), appeals his jury-trial conviction for being
unlawfully present in the United States after deportation in
violation of 8 U.S.C. § 1326. The district court sentenced
Ramirez to 63 months of imprisonment, followed by three years of
supervised release.
Ramirez argues that the Government offered insufficient
evidence that he had not received consent from the Secretary of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40028
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Homeland Security, specifically, to return to the United States.
It is unlawful for an alien who had previously been removed to be
in the United States “unless (A) prior to his reembarkation at a
place outside the United States or his application for admission
from foreign contiguous territory, the Attorney General has
expressly consented to such alien’s reapplying for admission.”
8 U.S.C. § 1326(a)(1). The authority to grant such consent has
been transferred to the Secretary of Homeland Security. See
6 U.S.C. §§ 202, 251.
The Government offered the testimony of a Customs and Border
Protection agent who testified that Ramirez’s alien file (“A-
file”) would have indicated if he had applied for consent to
reenter or if such consent had been granted by Secretary of
Homeland Security or the Attorney General but that there was no
record of either in the file. Other CBP agents testified to the
type of computer records check conducted on the day of Ramirez’s
arrest, none of which indicated that Ramirez had been granted
consent to reenter. Furthermore, there was testimony that
Ramirez had admitted illegally reentering the United States.
Based on the evidence presented at trial, a reasonable jury
could infer that if either the Secretary of Homeland Security or
the Attorney General had approved Ramirez’s application,
notification of the approval would have been contained in his A-
file. See United States v. Sanchez-Milam, 305 F.3d 310, 312-13
(5th Cir. 2002). We have held that a that a certificate of
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nonexistence of record, 8 U.S.C. § 1360(d), is sufficient to
satisfy Government’s burden of proving that the Attorney General
had not consented to an application for reentry. Id. at 313.
However, we have not held that such a certificate is required for
the Government to meet its burden of proof. Ramirez’s argument
that the search was not diligent because it was conducted using
only his alias is not persuasive because the testimony shows that
immigration files are matched using fingerprints and other
identifiers. Thus, whatever name Ramirez was using or under
which a search may have been conducted is irrelevant. Viewing
the evidence in the light most favorable to the prosecution and
accepting the reasonable inferences which support the verdict, we
find that sufficient evidence was presented to the jury for it to
reasonably conclude that no consent had been granted to Ramirez
to reenter the country. See United States v. Brugman, 364 F.3d
613, 615 (5th Cir. 2004) (stating standard of review).
We review de novo Ramirez’s second argument, that the use at
trial of two warrants of deportation, which he contends are
“testimonial” statements, violated his rights under the
Confrontation Clause. See United States v. Rueda-Rivera, 396
F.3d 678, 680 (5th Cir. 2005). In Crawford v. Washington, 541
U.S. 36, 51 (2004), 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. See
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U.S. CONST. AMEND. VI. Testimonial statements include “prior
testimony at a preliminary hearing, before a grand jury, or at a
former trial,” and “police interrogations”; nontestimonial
statements include “business records or statements in furtherance
of a conspiracy.” 541 U.S. at 56; see id. at 76 (Rehnquist, C.J.
concurring) (noting that “the Court’s analysis of ‘testimony’
excludes at least some hearsay exceptions, such as business
records and official records”).
A warrant of deportation is a document held in an alien’s
immigration file which shows that an individual has been deported
and is signed by an official who witnessed that individual
departing the United States. In Rueda-Rivera, 396 F.3d at 680,
we stated generally that documents in a defendant’s immigration
file are analogous to nontestimonial business records. In United
States v. Quezada, 754 F.2d 1190, 1193 (5th Cir. 1985), we held
that a warrant of deportation contained in an alien’s INS file
was properly admitted under Federal Rule of Evidence Rule
803(8)(B). We determined that Rule 803(8)(B) prohibited the use
at trial of hearsay regarding observations by law enforcement
officers at the scene of a crime or in the course of
investigating a crime but did not apply to “recording routine,
objective observations, made as part of the everyday function of
the preparing official or agency[.]” Quezada, 754 F.2d at 1194.
We concluded that the warrant of deportation was reliable and
admissible because the official preparing the warrant had no
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motivation to do anything other than “mechanically register an
unambiguous factual matter.”** Id. This type of document falls
squarely within the Supreme Court’s examples of nontestimonial
statements. See Crawford, 541 U.S. at 56; see also United States
v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005)
(reaching same conclusion). Accordingly, the admission of the
warrants of deportation at Ramirez’s trial did not violate his
rights under the Confrontation Clause.
The judgment of conviction is AFFIRMED.
**
For these same reasons, the Ninth Circuit found that a
warrant of deportation is nontestimonial under Crawford because
“because it was not made in anticipation of litigation, and
because it is simply a routine, objective, cataloging of an
unambiguous factual matter.” United States v. Bahena-Cardenas,
411 F.3d 1067, 1074-75 (9th Cir. 2005).