United States v. Roberto Cervantes-Flores

Roberto Cervantes-Flores (“Cervantes”) appeals his conviction and sentence for being found in the United States after deportation in violation of 8 U.S.C. § 1326 . Cervantes argues that the district court erred in: (1) denying him the opportunity to present a necessity defense to the jury; (2) refusing to exclude statements he made to a border patrol agent before receiving Miranda warnings; (3) admitting a certificate of nonexistence of record in violation of his Sixth Amendment Confrontation Clause rights in light of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004)—a question of first impression for this circuit; (4) failing to instruct the jury correctly on one of the essential elements of the crime; .and (5) enhancing his sentence based on facts neither pled nor found by a jury. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm Cervantes’ conviction, but remand his sentence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).

I.

In May 1998, United States Border Patrol agents found Cervantes in the United States without proper documentation. He was convicted of improper entry by an alien under 8 U.S.C. § 1325 , sentenced…