US v. Alejandro Diaz-Gutierrez

Filing 920091207

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). to seventy-two months in The district court sentenced him Diaz-Gutierrez appeals,

prison.

contending that the admission of a warrant of deportation into evidence Amendment. We violated the Confrontation Clause of the Sixth

We affirm. 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." U.S. 36, 53-54 (2004). cases make clear, a

Crawford v. Washington, 541

"As Crawford and later Supreme Court 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 entity's proving affairs some and "created not for for the . . the administration of of an or

purpose . are

establishing

fact

at

trial

not

testimonial."

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009). 2

A

warrant

of

deportation . . . [I]t

is is

"not

made a

in

anticipation

of

litigation[.]

simply

routine,

objective

cataloging of an unambiguous factual matter." Bahena-Cardenas, 411 F.3d 1067, 1075 (9th

United States v. 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

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