Rizo-Hernandez

MEMORANDUM **

Juan Jose Rizo-Hernandez appeals from his jury trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 , and his 100-month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm his conviction and vacate and remand the sentence.

Rizo-Hernandez first contends that the trial court violated his Confrontation Clause rights by admitting a “warrant of deportation” and a “certificate of nonexistence” because they are testimonial doeuments and violate Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). This issue has been foreclosed by United States v. BahenarCardenas, 411 F.3d 1067,1074-75 (9th Cir. 2005) (holding that a warrant of deportation was nontestimonial), and United States v. Cervantes-Flores, 421 F.3d 825, 830-34 (9th Cir.2005) (holding that a certificate of nonexistence is nontestimonial evidence and does not violate the Confrontation Clause).

Next, Rizo-Hernandez contends that his prior felony conviction should have been pled in the indictment and proven to a jury, and that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998),…