USA v. Victor Diaz-Ozuna, No. 09-10435 (9th Cir. 2011)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 15 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10435 D.C. No. 4:08-cr-00739-RCCCRP-1 v. VICTOR MANUEL DIAZ-OZUNA, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Argued and Submitted April 12, 2011 Pasadena, California Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges. Victor Manuel Diaz-Ozuna ( Diaz ) appeals his conviction for illegal reentry after a prior deportation, in violation of 8 U.S.C. § 1326, arguing the district court violated his Sixth Amendment right of confrontation when it admitted a Certificate of Nonexistence of Record ( CNR ) to prove the lack of consent to reentry element * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. without providing for cross-examination of the certifying officer. The government concedes that admission of the CNR was erroneous under United States v. Orozco-Acosta, 607 F.3d 1156, 1161 & n.3 (9th Cir. 2010), cert. denied, 131 S. Ct. 946 (Jan. 10, 2011). Nonetheless, the conceded error was rendered harmless beyond a reasonable doubt by other substantial evidence confirming Diaz s lack of permission to enter the United States. See id. at 1162. AFFIRMED. 2

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