Ortiz-Bravo

MEMORANDUM *

Admission of the certificate of nonexistence of record (CNR) did not violate appellant’s Confrontation Clause rights because a CNR is not testimonial evidence. See United States v. Cervantes-Flores, 421 F.3d 825, 834 (9th Cir.2005) (per curiam).

Appellant was coherent enough to inform Agent Garcia that he had crossed into the United States, and to point to where he had entered. Appellant was not found at the border, and did not introduce any evidence that his entry was involuntary. Thus, he was not entitled to an instruction on the voluntariness element of his crime. See United States v. Rivera-Sillas, 417 F.3d 1014, 1021 (9th Cir.2005).

The district court did not err in increasing appellant’s sentence based on his prior conviction and deportation. Unless the Supreme Court overrules Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), it, and our precedents following it, remain binding. See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005). Nothing in Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), or Dretke v. Haley, 541 U.S. 386 , 124 S.Ct. 1847 , 158 L.Ed.2d 659 (2004),…