USA v. Ortega-Martinez

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USA v. Ortega-Martinez

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Case: 08-41340

Document: 00511169957

Page: 1

Date Filed: 07/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-41340 S u m m a r y Calendar July 12, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D I E G O ORTEGA-MARTINEZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 1:08-CR-350-ALL

B e fo r e HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. P E R CURIAM:* B o r d e r Patrol agents found Diego Ortega-Martinez hiding under a tree n e a r the United States-Mexico border in the middle of the night. He

a c k n o w le d g e d he did not have immigration documents and admitted to the a g e n t s under oath that he was a citizen of Mexico, he had previously been d e p o r t e d from the United States, and he had reentered the United States the p r e v io u s day without receiving permission from the United States Government.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 08-41340

Document: 00511169957 Page: 2 No. 08-41340

Date Filed: 07/12/2010

A fte r hearing this evidence at trial, a jury convicted Ortega-Martinez of b e in g found unlawfully present in the United States and he was sentenced to a fo r t y -e ig h t month prison term.1 Ortega-Martinez appeals his conviction arguing t h e introduction into evidence, without objection, of a certificate of nonexistence o f record (CNR), which certified the government had no records showing OrtegaM a r t in e z received permission to return to the United States, violated the C o n fr o n t a t io n Clause of the Sixth Amendment. At trial, the federal agent who t e s t ifie d to the contents of the CNR did not personally prepare the certification. T h e parties agree review is for plain error.2 Although we have held that a d m i t t in g into evidence a CNR without the testimony of the person who p r e p a r e d it violates the Confrontation Clause, Ortega-Martinez still must show t h e admission of the CNR infringed his substantial rights, that the violation c r e a t e d a reasonable probability the jury reached a different conclusion than it w o u ld have absent introduction of the CNR.3 This Ortega-Martinez cannot do, g i v e n the government's overwhelming evidence, including Ortega-Martinez's s w o r n admissions to the disputed elements of the crime. A F F IR M E D .

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See 8 U.S.C. §§ 1326(a) & (b)(1). See United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). See id. at 587.

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