Burgara-Montana

MEMORANDUM **

Porfirio Burgara-Montana appeals the district court’s revocation of his supervised release and imposition of sentence after he was caught entering the United States illegally subsequent to deportation. Burgara-Montana also appeals his jury trial conviction and sentence imposed for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 .

First, Burgara-Montana argues that the supervised release revocation statute, 18 U.S.C. § 3583 (e), violates United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), because it authorizes a judge to impose a revocation sentence based upon facts a judge finds by a preponderance of the evidence. This argument is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1221 (9th Cir.2006), in which we held that the supervised release revocation statute is constitutional and does not violate Booker .

Second, Burgara-Montana argues that the district court violated the Confrontation Clause in admitting a Certificate of Non-Existence of Record (“CNR”) at trial. The Ninth Circuit recently held that a “CNR is nontestimonial evidence under Crawford [v. Washington, 541 U.S. 36 , 124…