                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                          SA-01-CR-42-ALL
                       --------------------

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that this opinion should not be published and is not precedent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


                                 2
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


                                 3
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

                                 4
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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