     Case: 08-41340     Document: 00511169957          Page: 1    Date Filed: 07/12/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 12, 2010
                                     No. 08-41340
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DIEGO ORTEGA-MARTINEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                            USDC No. 1:08-CR-350-ALL


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Border Patrol agents found Diego Ortega-Martinez hiding under a tree
near the United States-Mexico border in the middle of the night.                            He
acknowledged he did not have immigration documents and admitted to the
agents under oath that he was a citizen of Mexico, he had previously been
deported from the United States, and he had reentered the United States the
previous day without receiving permission from the United States Government.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-41340           Document: 00511169957 Page: 2         Date Filed: 07/12/2010
                                        No. 08-41340

      After hearing this evidence at trial, a jury convicted Ortega-Martinez of
being found unlawfully present in the United States and he was sentenced to a
forty-eight month prison term.1 Ortega-Martinez appeals his conviction arguing
the introduction into evidence, without objection, of a certificate of nonexistence
of record (CNR), which certified the government had no records showing Ortega-
Martinez received permission to return to the United States, violated the
Confrontation Clause of the Sixth Amendment. At trial, the federal agent who
testified to the contents of the CNR did not personally prepare the certification.
      The parties agree review is for plain error.2 Although we have held that
admitting into evidence a CNR without the testimony of the person who
prepared it violates the Confrontation Clause, Ortega-Martinez still must show
the admission of the CNR infringed his substantial rights, that the violation
created a reasonable probability the jury reached a different conclusion than it
would have absent introduction of the CNR.3 This Ortega-Martinez cannot do,
given the government’s overwhelming evidence, including Ortega-Martinez’s
sworn admissions to the disputed elements of the crime.
      AFFIRMED.




      1
          See 8 U.S.C. §§ 1326(a) & (b)(1).
      2
          See United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010).
      3
          See id. at 587.

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