US v. Alejandro Diaz-Gutierrez, No. 07-5147 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5147 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO DIAZ-GUTIERREZ, Defendant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 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and December 7, 2009 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ยง 1326(a) (2006). to seventy-two months in The district court sentenced him prison. Diaz-Gutierrez appeals, contending that the admission of a warrant of deportation into evidence violated Amendment. the Confrontation Clause of the Sixth We affirm. 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 the cases make clear, a had a prior Crawford v. Washington, 541 opportunity for cross-examination. U.S. 36, 53-54 (2004). defendant 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 entity s proving affairs some created and fact not at for trial for the the . administration purpose . . are of of establishing not an or testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009). 2 A warrant of litigation[.] deportation . . . [I]t is not is made simply in a routine, cataloging of an unambiguous factual matter. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th anticipation of objective 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 3
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