Lopez-Montanez

MEMORANDUM *

David Lopez-Montanez appeals the judgment of the district court sentencing *181 him to 46 months’ imprisonment following his conviction in a jury trial for reentry after removal, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, reverse and vacate in part and remand for resentencing.

Lopez-Montanez argues that the district court erred when it admitted the certificate of nonexistence of record (“CNR”), without the testimony of the government agent who prepared the document, because it violated his Sixth Amendment right to cross examination under Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). The introduction of a CNR to prove that Lopez-Montanez did not seek admission from the Attorney General to enter the United States does not constitute testimonial hearsay evidence. Rather, it is properly admitted as a nontestimonial official record. See United States v. Cervantes-Flores, 04-50260,

Lopez-Montanez further argues that the district court erred by concluding that Ninth Circuit case law proscribed a departure based on a government form that only informed Lopez-Montanez of the…

concurring in part and dissenting in part.

I disagree with my colleagues’ take that the district court believed it lacked authority to downward depart based on United States v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir.2000). As I read the record, the district court declined to grant a downward departure because our decision in Ramirez-Valencia states that another government form with similar language to the 1-296 form relied upon by LopezMontanez “unequivocally required defendant to obtain permission to return to the United States,” and that the defendant’s alleged reliance on this unequivocal language to return without permission was unreasonable. 202 F3.d 1106, 1110 (9th Cir.2000). Although Ramirez-Valencia concerned a defendant’s use of this reliance theory as an affirmative defense, and Lopez-Montanez’s claim arose in the context of a downward departure, the district court was well within its rights to reject Lopez-Montanez’s departure request in light of the fact that our past precedent holds that it is unreasonable for an alien to believe that the form language indicates it is lawful to reenter without permission. I therefore would not instruct the district court to…