United States v. Antonio Diaz-Delgado

MEMORANDUM

Antonio Diaz-Delgado appeals from his jury-trial conviction and 38-month sentence imposed for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Diaz-Delgado contends that the admission into evidence of a certificate of nonexistence of record (“CNR”) at trial violated his rights under the Sixth Amendment’s Confrontation Clause. The admission of the CNR was harmless error because the CNR was cumulative of other evidence demonstrating Diaz-Delgado’s lack of permission to re-enter the United States, including Diaz-Delgado’s admission that he returned illegally, and an Immigration and Customs Enforcement Agent’s testimony that there was no evidence of permission to re-enter in Diaz-Delgado’s A-file or computer databases. See United States v. Orozco-Acosta, 607 F.3d 1156, 1161-62 (9th Cir.2010).

Diaz-Delgado also contends that Nijhawan v. Holder, —U.S.-, 129 S.Ct. 2294 , 174 L.Ed.2d 22 (2009), effectively overruled Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), such that his prior felony conviction had to be found by a jury before…