                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4378



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JAVIER ENRIQUE MENDOZA-ORELLANA,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-309)


Submitted:   April 27, 2005                 Decided:   June 3, 2005


Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Sue Genrich Berry, BOWEN, BERRY AND POWERS, P.L.L.C., Wilmington,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Javier Enrique Mendoza-Orellana appeals from his judgment

of conviction and sentence, based on a jury verdict finding him

guilty of transporting an illegal alien within the United States,

in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (B) (ii) (2000).

Mendoza-Orellana appeals his conviction, alleging that the district

court plainly erred in admitting a Certificate of Nonexistence of

Record   (“CNR”)   allegedly     in    violation     of    Mendoza-Orellana’s

confrontation clause rights.      He also alleges plain error relative

to his sentence under United States v. Booker, 125 S. Ct. 738

(2005), when the district court enhanced his sentence pursuant to

U.S. Sentencing Guidelines Manual § 2L1.1(b)(2)(A) (2003) (three

levels), and USSG § 3C1.1 (two levels).              In accordance with our

discussion below, we affirm Mendoza-Orellana’s conviction, but

vacate   his    sentence   and   remand       to   the    district   court   for

resentencing.

           Mendoza-Orellana first challenges the district court’s

admission of evidence regarding the immigration status of Claudia

Rodriguez-Beron, Cesar Augusto Bautista-Cornejo, Cesar Humberto

Suarez-Salinas, William Fernandez, Fabricio Froes-Santos, and Joel

Salvo DaSilva.     Given defense counsel’s failure to object to the

introduction of this evidence in the district court, we review this

issue for plain error.     United States v. Olano, 507 U.S. 725, 731-

32   (1993).       Mendoza-Orellana       specifically        challenges     the


                                      - 2 -
Government’s introduction of a “CNR” (Exhibit 4A), bearing the seal

of a United States agency, through Agent Chandler.               This CNR

reflected that Ms. Rodriguez-Beron held an illegal alien status at

the time of Mendoza-Orellana’s offense.         In addition, later in his

testimony, Agent Chandler testified that he and another agent

interviewed other individuals, and that he determined that the

other five individuals transported by Mendoza-Orellana likewise

were present illegally in the United States on July 23, 2003.

Mendoza-Orellana contends that Exhibit 4A was testimonial hearsay

introduced    in   violation    of    his    Sixth   Amendment   right   to

confrontation, as was Agent Chandler’s testimony as to the status

of the other individuals, some of whom he did not personally

interview.    The underlying basis for Mendoza-Orellana’s objection

is Crawford v. Washington, 541 U.S. 36 (2004).

            Here, while the district court did not admit the CNR as

a business record, the record was admitted as a self-authenticating

public record based upon Fed. R. Evid. 803(10) and 902.           As such,

we find that it should not be considered testimonial hearsay under

Crawford.    Id. at 56, 76;    see also United States v. Rueda-Rivera,

    F.3d      , 2005 WL 39763 (5th Cir. 2005) (admission of CNR not

violative of Confrontation Clause, CNR is official, non-testimonial

public record admissible under the Federal Rules of Evidence, and

CNR admission not included in testimonial documents barred by

Crawford).    Moreover, given the other evidence of Ms. Rodriguez-


                                     - 3 -
Beron’s illegal status, we find that Mendoza-Orellana cannot show

prejudice in the admission of the record.                    Finding no plain error

in the district court’s admission of the CNR, we affirm Mendoza-

Orellana’s conviction.1

              Next,      Mendoza-Orellana       claims       error   in   the   district

court’s enhancement of his sentence.                 Specifically, in determining

the applicable sentencing range under the sentencing guidelines,

the probation officer calculated a base offense level of twelve,

and then applied a three level enhancement of Mendoza-Orellana’s

base offense level for transporting six or more unlawful aliens,

pursuant to USSG § 2L1.1(b)(2)(A). The district court adopted this

enhancement, and then further enhanced Mendoza-Orellana’s sentence

by two levels for giving false testimony concerning a material

matter, pursuant to USSG § 3C1.1.               In full accordance with the law

and procedure in effect at the time of sentencing, the district

court      applied    the   guidelines         as   a   mandatory     determinant    in

sentencing, and sentenced Mendoza-Orellana based on judicially-

determined facts found by a preponderance of the evidence, rather

than       facts   found    by   the     jury       beyond    a    reasonable    doubt.

Ultimately,        the    district     court    sentenced         Mendoza-Orellana   to



       1
     Mendoza-Orellana’s challenge to Agent Chandler’s testimony as
to the immigration status of the other individuals is a sentencing
issue that relates to the three-level enhancement by the district
court of Mendoza-Orellana’s base offense level pursuant to USSG
§ 2L1.1(b)(2)(A), and is addressed in our discussion regarding his
sentence.

                                         - 4 -
twenty-seven months’ imprisonment and three years of supervised

release.

           On appeal, Mendoza-Orellana contends that the application

of the enhancements, which increased his range of imprisonment

under the guidelines, constitute plain error under the Supreme

Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),

United States v. Booker, 125 S. Ct. 738 (2005), and this court’s

decision in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),

because it was based upon facts not found by the jury beyond a

reasonable doubt. In Booker, the Supreme Court applied the Blakely

decision to the federal sentencing guidelines and concluded that

the Sixth Amendment is violated when a district court imposes a

sentence under the sentencing guidelines that is greater than a

sentence based solely upon facts found by the jury.        Booker, 125 S.

Ct. at 752-56.     The Court remedied the constitutional violation by

severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (West

Supp. 2004) (requiring sentencing court to impose a sentence within

the applicable guideline range), and 18 U.S.C.A. § 3742(e) (West

2000 & Supp. 2004) (setting forth appellate standards of review for

guideline issues), thereby making the guidelines advisory. Hughes,

401 F.3d at 546 (citing Booker, 125 S. Ct. at 757 (Breyer, J.,

opinion of the Court)).

           After    Booker,   courts   must   calculate   the   appropriate

guideline range, consider the range in conjunction with other


                                  - 5 -
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),

and impose a sentence.    If a court imposes a sentence outside the

guideline range, the district court must state its reasons for

doing so.    Hughes, 401 F.3d at 546.        This remedial scheme applies

to any sentence imposed under the mandatory sentencing guidelines,

regardless of whether or not the sentence violates the Sixth

Amendment.    Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,

J., opinion of the Court)).

            In this case, as in Hughes, the district court sentenced

Mendoza-Orellana    by   applying    the     guidelines   as   a   mandatory

determinant in sentencing and based upon facts not authorized by

the jury’s findings.       In light of the change in the law, we

conclude that the district court erred in determining Mendoza-

Orellana’s sentence, that the error was plain and affected Mendoza-

Orellana’s substantial rights, and that we should exercise our

discretion to notice the error.             We therefore vacate Mendoza-

Orellana’s sentence and remand for resentencing.2


     2
      Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767.      On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The
sentence must be 'within the statutorily prescribed range and . . .
reasonable.' Id. at 547.

                                    - 6 -
          Accordingly,   although   we   affirm   Mendoza-Orellana’s

conviction, we vacate his sentence and remand to the district court

for resentencing in accordance with Booker and Hughes. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                  AFFIRMED IN PART,
                                      VACATED IN PART, AND REMANDED




                              - 7 -
