United States v. Fernando Velasquez-bosque

MEMORANDUM

Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir.2010) (order), held that carjacking under California Penal Code section 215 is a categorical crime of violence under 18 U.S.C. § 16 . Id. at 1058 . Nothing in Johnson v. United States, — U.S. -, 130 S.Ct. 1265 , 176 L.Ed.2d 1 (2010), is irreconcilable with Nieves-Medrano , and therefore this court has no authority to disregard Nieves-Medrano. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en bane). Velasquez-Bosque’s challenge to his conviction under 8 U.S.C. § 1326 (b)(2) fails.

As the government concedes, the district court erred in admitting the Wilson Declaration at trial, because such admission was in violation of the Confrontation Clause. See Melendez-Diaz v. Massachusetts, — U.S. -, -, 129 S.Ct. 2527, 2532 , 174 L.Ed.2d 314 (2009). However, because the declaration was cumulative of Agent Johnston’s testimony, that testimony was tested through extensive cross-examination, and there was no evidence to contradict the element for which the declaration was offered, we hold that the error was harmless beyond a reasonable doubt. See United States v. Larson, 495 F.3d 1094, 1107-1108 (9th Cir.2007) (en banc).…