United States v. Valdovinos-Mendez
2011 U.S. App. LEXIS 8139
| 9th Cir. | 2011Background
- Valdovinos-Mendez was convicted under 8 U.S.C. § 1326 for illegal re-entry after removal following a July 2008 incident in Vista, California.
- A jury heard that Valdovinos-Mendez used a false name and a Mexican license to evade an officer after a DUI stop; he was arrested.
- Before trial, Valdovinos-Mendez moved to exclude a certificate of non-existence of record (CNR) and A-file documents; the district court denied the motion.
- Agent Wooddy testified there was no record in Valdovinos-Mendez’s A-file or in CIS/CLAIMS databases showing permission to re-enter; jury found him guilty.
- At sentencing, the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for a prior conviction of violence, producing a total offense level of 24 and a sentence of 48 months.
- Valdovinos-Mendez challenged the CNR and A-file/document evidence under the Confrontation Clause, the best evidence rule, and sought a jury determination of prior convictions under Nijhawan v. Holder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation: admissibility of CNR and A-file documents | CNR and A-file documents are testimonial; admission violates confrontation. | Documents are non-testimonial or harmless error; they are cumulative. | CNR admission harmless; A-file documents non-testimonial; no Confrontation Clause error. |
| Best evidence rule and database testimony | Agent's testimony about databases is inadmissible under best evidence unless proving contents. | Public records/searching databases exception applies; testimony is admissible to show absence of records. | Testimony about searches of CIS/CLAIMS databases is admissible; not barred by best evidence rule. |
| Whether prior conviction qualifies as crime of violence under § 2L1.2 | Prior assault with a deadly weapon is a crime of violence, justifying a 16-level enhancement. | The district court’s interpretation is incorrect; challenge to the application of the guideline. | Assault with a deadly weapon is a crime of violence; 16-level enhancement proper. |
| Nijhawan overruled Almendarez-Torres regarding sentencing factors | Nijhawan overruled Almendarez-Torres, requiring jury fact-finding for prior convictions affecting max sentence. | Nijhawan does not overrule Almendarez-Torres; prior felony conviction remains a sentencing factor. | Nijhawan did not overrule Almendarez-Torres; prior felony conviction treated as sentencing factor, not element. |
Key Cases Cited
- Grajeda, 581 F.3d 1186 (9th Cir. 2009) (prior assault with weapon is a crime of violence under § 2L1.2)
- Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010) (Confrontation and non-testimonial evidence; CNR and warnings discussed)
- Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005) (non-testimonial nature of certain immigration records)
- Ballesteros-Selinger, 454 F.3d 973 (9th Cir. 2007) (standardized forms and non-testimonial character of certain records)
- Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010) (best evidence rule not triggered by absence of records in databases)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior conviction as sentencing factor, not element)