US v. Humberto Palacios-Herrera, No. 10-4138 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4138 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HUMBERTO PALACIOS-HERRERA, a/k/a Mario Alberto Peralta-Del Castillo, a/k/a Gustava De La Garza-Herrera, a/k/a Gustavo De La Garza-Herrera, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:09-cr-00106-JBF-1) Submitted: November 17, 2010 Decided: December 3, 2010 Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Assistant Federal Public Defender, Caroline S. Platt, Research and Writing Attorney, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, William D. Muhr, Assistant United States Attorney, Emily Sowell, Third-Year Law Student, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Humberto Palacios-Herrera was convicted of illegally reentering the United States after having been convicted of a felony and deported, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district court sentenced him to seventy-two months in prison. Palacios-Herrera contends that the admission of a warrant of deportation into evidence violated the Confrontation Clause of the Sixth Amendment. He also asserts that the warrant contains the observations of law enforcement officers and thus cannot be admitted pursuant to Fed. R. Evid. 803(8)(B). We review evidentiary Confrontation Clause de novo. rulings implicating the 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 opportunity for cross-examination. U.S. 36, 53-54 (2004). cases make clear, a the defendant had a prior Crawford v. Washington, 541 As Crawford and later Supreme Court statement must be testimonial excludable under the Confrontation Clause. to be 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 2 establishing or testimonial. proving some fact at trial . . . are not Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009). A warrant of deportation is not made in anticipation of litigation[.] . . . [I]t is simply a cataloging of an unambiguous factual matter. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th routine, objective United States v. Cir. 2005). We conclude that the 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 warrant not err in admitting the of deportation into evidence. We further find that the district court did not abuse its discretion in admitting the warrant pursuant to Fed. R. Evid. 803(8)(B). Rule 803(8)(B) creates an exception to the hearsay public rule for records and reports setting forth matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel. Fed. R. Evid. 803(8)(B). As noted above, the warrant of deportation in question consisted matter. of the routine, objective cataloging of a factual Further, the warrant and notations have none of the 3 features of the subjective report made by a law enforcement official in an on-the-scene investigation, which investigative reports lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation. 535 (9th United States v. Hernandez-Rojas, 617 F.2d 533, Cir. 1980); see also United States v. Agustino- Hernandez, 14 F.3d 42, 43 (11th Cir. 1994). Finally, Palacios-Herrera contends that his sentence is unreasonable. We review a sentence for reasonableness under an abuse of discretion standard. U.S. 38, 51 (2007). to ensure that Gall v. United States, 552 the The first step in this review requires us district court committed no signficant procedural error, such as improperly calculating the guideline range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Next, we review the substantive reasonableness of the sentence, examining the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). On appeal, calculated we presume guideline that range is a sentence reasonable. Allen, 491 F.3d 178, 193 (4th Cir. 2007). 4 within United a properly States v. We claims have and find substantively reviewed that the his reasonable. record and sentence is The district Palacios-Herrera s procedurally court and properly calculated the sentencing range under the advisory guidelines, addressed the relevant § 3553(a) factors, and imposed a sentence in the middle of the sentencing range. Palacios-Herrera s claim that the court erred in double counting his prior conviction for a base offense level and a criminal history category is without merit. See United States v. Crawford, 18 F.3d 1173, 1174 (4th Cir. 1994). assertion that his Further, we reject Palacios-Herrera s sentence is unreasonable because the guideline under which he was sentenced is not based on empirical study conducted by the Sentencing Commission. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We accordingly affirm the conviction and sentence. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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