United States v. Gutierrez-Gonzales , 111 F. App'x 732 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-51253
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERASMO GUTIERREZ-GONZALES, also known as Erasmo Gonzalez, also
known as Erasmo Lopez Gonzalez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
SA-01-CR-42-ALL
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Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant, Erasmo Gutierrez-Gonzales (“Gonzales”),
appeals from his conviction for being a previously deported alien
found in the United States without the permission of the Attorney
General, after having been earlier convicted of an aggravated
felony and removed from the country, in violation of 8 U.S.C. §§
1326(a) and 1326(b)(2).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Gonzales raises three issues on appeal. First, he contends
that the government failed to offer sufficient evidence to prove
beyond a reasonable doubt that Gonzales was knowingly and
voluntarily in the United States, a requirement for conviction
under 8 U.S.C. § 1326. Second, Gonzales asserts that the
district court abused its discretion when it admitted Gonzales’
immigration file into evidence pursuant to the public records
hearsay exception in Fed. R. Evid. 803(8). Finally, in the
alternative, Gonzales contends that if the district court
properly admitted the hearsay evidence in question, then the
introduction of that evidence violated his rights under the
Confrontation Clause, in light of the Supreme Court’s recent
decision in Crawford v. Washington, 124 S. Ct. 1354 (2004).
Having reviewed the record and considered the briefs on
appeal, we reject Gonzales’ arguments.
With respect to Gonzales’ appeal of his conviction,
following a bench trial, we review the district court’s finding
of guilt to determine whether it is supported by “any substantial
evidence, i.e., evidence sufficient to justify the trial judge,
as the trier of fact, in concluding beyond a reasonable doubt
that the defendant is guilty.” United States v. Serna-Villareal,
352 F.3d 225, 234 (5th Cir. 2003); United States v. Mathes, 151
F.3d 251, 252 (5th Cir. 1998). In so doing, we must view all the
evidence in the light most favorable to the government and defer
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to the district court’s reasonable inferences. United States v.
Turner, 319 F.3d 716, 720-21 (5th Cir. 2003).
Having done so, we conclude that the evidence presented was
sufficient to prove beyond a reasonable doubt that Gonzales was
knowingly and voluntarily in the United States. The fact that
Gonzales was found away from the border was sufficient
circumstantial evidence to allow the district court to infer that
Gonzales’ presence in the United States was voluntary. See
United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th Cir.
2000). Moreover, Gonzales offered no evidence that he was in the
United States mistakenly or against his will. Therefore, the
evidence presented by the government was sufficient to prove that
Gonzales was in the United States knowingly and voluntarily.
With respect to Gonzales’ appeal of the district court’s
decision to admit into evidence Gonzales’ immigration file, we
review the district court’s decision to admit or exclude evidence
for abuse of discretion, with a “heightened” review of
evidentiary rulings in a criminal case. United States v.
Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002). Because
this Court generally has upheld the admission of INS documents as
public records under Fed. R. Evid. 803(8), we conclude that the
district court did not abuse its discretion in admitting
Gonzales’ immigration file into evidence. See Renteria-Gonzales
v. INS, 322 F.3d 804, 817 & n.16 (5th Cir. 2002); United States
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v. Quezada, 754 F.2d 1190, 1193-94 (5th Cir. 1985).
With respect to Gonzales’ appeal of the district court’s
evidentiary ruling on Confrontation Clause grounds, we review de
novo a claim that the introduction of evidence violated a
defendant’s rights under the Confrontation Clause. United States
v. Aguilar-Tamayo, 300 F.3d 562, 564 (5th Cir. 2002).
In Crawford v. Washington, 124 S. Ct. 1354 (2004), the
Supreme Court held that testimonial, out-of-court statements by
witnesses are barred under the Confrontation Clause unless the
witnesses are unavailable and the defendant had a prior
opportunity to cross-examine them. Crawford, 124 S. Ct. at 1374.
Although the Supreme Court declined to give a full definition of
what “testimonial” statements are, specifically saving that
question for another day, by its terms Crawford’s holding applies
“to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” Id.Because the items in Gonzales’ immigration file are non-
testimonial, the Confrontation Clause does not bar their
admission. Moreover, the Supreme Court noted that business
records are “statements that by their nature [a]re not
testimonial” and therefore do not run afoul of Crawford. Id. at
1367. Accordingly, the district court properly relied on
official, non-testimonial public records, admissible under the
Federal Rules of Evidence, in determining that Gonzales was a
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previously deported alien found in the United States without
permission.
For the foregoing reasons, the opinion of the district court
is AFFIRMED.
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