                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 3, 2008
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 07-2119
          v.                                           (D. New Mexico)
 OSCAR PROVENCIO-SANDOVAL,                        (D.C. No. CR-06-2263-LH)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      Oscar Provencio-Sandoval was convicted by a jury in the United States

District Court for the District of New Mexico of illegal reentry following a

conviction for an aggravated felony. See 8 U.S.C. § 1326(a), (b). The sole issue

on appeal is whether the district court violated his constitutional right to confront

the witnesses against him when it allowed the government to introduce a

“Certificate of Nonexistence of Record” (CNR) to prove that he lacked

permission to reenter the United States. We have jurisdiction under 28 U.S.C.



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1291. We affirm because the district court did not plainly err by admitting the

CNR.

I.     BACKGROUND

        Mr. Provencio-Sandoval was deported in 1999 after being convicted of an

aggravated felony. On July 8, 2006, he was taken into custody in Las Cruces by

U.S. Immigration and Customs Enforcement (ICE). He was tried on January 23,

2007. To establish that he violated § 1326(a), the government had to prove that

(1) he is an alien, (2) who was arrested and deported, (3) who was thereafter

found voluntarily and knowingly in the United States, and (4) who did not have

the consent of the Attorney General or the Secretary for Homeland Security to

reapply for admission into the United States. See United States v. Martinez-

Morel, 118 F.3d 710, 712–13 (10th Cir. 1997); United States v. Rios-Zamora, 153

F. App’x 517, 520–21 (10th Cir. 2005) (unpublished) (explaining roles of

Attorney General and Secretary of Homeland Security regarding consent for

reapplication for admission).

       The government offered the CNR at trial to prove the fourth element, that

is, that Mr. Provencio-Sandoval had not received permission to reapply for

admission into the United States. The CNR for Mr. Provencio-Sandoval was

signed by Mike Quinn, the Chief of the Records Service Branch at U. S.

Citizenship and Immigration Services. It stated in part:




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             I, or an agency employee acting at my direction,
             performed a search for records relating to the subject
             identified below. Specifically, this office searched the
             Deportable Alien Control System . . . ; Computer Link
             Application Management System . . . ; and the Central
             Index System . . . .

             [A]fter a diligent search was performed in these
             databases, no record was found to exist indicating that
             the subject listed below obtained consent at any time
             prior to March 1, 2003, from the Attorney General or at
             any time after February 28, 2003, from the Secretary of
             Homeland Security, for readmission into the United
             States in accordance with [applicable law].

R. Vol. III at 65. Mr. Provencio-Sandoval objected to the CNR for lack of

foundation, because no witness had explained how the record search had been

conducted. He did not object on any other ground. In particular, he did not argue

that admitting the CNR violated his right to confrontation. The CNR was

admitted.

      An ICE group supervisor, Robert Godshall, later testified. He described the

three databases that are searched to produce a CNR, and testified that

immediately before trial he had searched two of these databases personally and

watched another agent search the third. These searches confirmed that there were

no records indicating that Mr. Provencio-Sandoval had permission to reenter the

country or had even applied for permission. Agent Godshall also testified that

Mr. Provencio-Sandoval was ineligible for permission to reenter the country, even

if he were to request permission.


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II.   ANALYSIS

      Mr. Provencio-Sandoval argues in his appellate brief that (1) the CNR

should not have been admitted under Federal Rule of Evidence 803(10); (2) the

CNR lacked foundation because no one familiar with the government’s record-

keeping system described how the records were created or searched; and (3)

admission of the CNR violated his rights under the Confrontation Clause. At oral

argument, however, he abandoned the first two arguments. Because

Mr. Provencio-Sandoval did not raise the Confrontation Clause in district court,

we limit our review to plain error. See United States v. Geiner, 498 F.3d 1104,

1113 (10th Cir. 2007). “Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal

quotation marks omitted).

      To establish plain error, Mr. Provencio-Sandoval must satisfy all four

requirements. We conclude that he has failed to satisfy the second requirement,

so we need not address the others.

      An error is “plain” or “obvious” under the second requirement if it is “clear

under current law.” See United States v. Teague, 443 F.3d 1310, 1319 (10th Cir.

2006) (internal quotation marks omitted). We have held that a proposition is not

“clear under current law” if “neither the Supreme Court nor the Tenth Circuit has

                                         -4-
ruled on the subject . . . [and] the authority in other circuits is split.” Id. Of

course, if outside authority is unanimous in one direction, the contrary view

cannot be “clear under current law.” See United States v. Johnson, 183 F.3d

1175, 1179 (10th Cir. 1999) (alleged error is not plain if the only court to address

the issue held that there was no error).

      On the issue before us, there is no Supreme Court or Tenth Circuit

precedent. And all other circuits that have considered the matter have ruled that

admitting CNRs does not violate the Confrontation Clause as interpreted in

Crawford v. Washington, 541 U.S. 36 (2004). See United States v. Urqhart, 469

F.3d 745, 749 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825,

832–33 (9th Cir. 2005); United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th

Cir. 2005); cf. United States v. Salinas-Valenciano, 220 F. App’x 879, 882–85

(10th Cir. 2007) (unpublished) (questioning, but not deciding, whether admitting

a CNR violates the Confrontation Clause); United States v. Earle, 488 F.3d 537,

545 (1st Cir. 2007) (declining to decide whether admitting CNR violates

Confrontation Clause). But see Melendez-Diaz v. Massachusetts, No. 07-591,

2008 WL 695627 (S. Ct. Mar. 17, 2008) (granting petition for certiorari on

“[w]hether a state forensic analyst's laboratory report prepared for use in a

criminal prosecution is ‘testimonial’ evidence subject to the demands of the

Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36




                                           -5-
(2004),” Melendez-Diaz v. Massachusetts, No. 07-591, 2007 WL 3252033, at *i

(S. Ct. Oct. 26, 2007) (petition for certiorari)).

      We AFFIRM the judgment below.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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