                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 09-50532
                Plaintiff-Appellee,
               v.                                   D.C. No.
                                                  08cr4495-MMA
FRANCISCO VALDOVINOS-MENDEZ,
                                                     OPINION
             Defendant-Appellant.
                                            
         Appeal from the United States District Court
            for the Southern District of California
         Michael M. Anello, District Judge, Presiding

                  Argued and Submitted
           November 2, 2010—Pasadena, California

                     Filed February 15, 2011

Before: Mary M. Schroeder and Richard C. Tallman, Circuit
       Judges, and John A. Jarvey, District Judge.*

                     Opinion by Judge Jarvey




  *The Honorable John A. Jarvey, District Judge for the Southern District
of Iowa, sitting by designation.

                                 2479
2482         UNITED STATES v. VALDOVINOS-MENDEZ




                         COUNSEL

David M.C. Peterson, Federal Defenders of San Diego, Inc.,
and James Fife (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for the defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and W. Mark Conover (argued), Assistant
United States Attorney, San Diego, California, for the
plaintiff-appellee.


                          OPINION

JARVEY, District Judge:

   Francisco Valdovinos-Mendez appeals his conviction for
illegally re-entering the United States following removal, in
violation of 8 U.S.C. § 1326. Valdovinos-Mendez contends
that the admission into evidence of a certificate of non-
existence of record (“CNR”) and certain documents from his
Alien Registration File (“A-file”) violated his rights under the
             UNITED STATES v. VALDOVINOS-MENDEZ            2483
Sixth Amendment’s Confrontation Clause. Citing the best evi-
dence rule, he also contests the admission of testimony from
an A-file custodian regarding the absence of any record of
Valdovinos-Mendez applying for permission to re-enter the
United States. In addition, he challenges a sixteen-level
enhancement to his Sentencing Guideline base offense level
imposed for a prior conviction of assault with a deadly
weapon under California Penal Code § 245(a), arguing that it
does not qualify as a “crime of violence” within the meaning
of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Finally, Valdovinos-Mendez
asserts that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), over-
ruled Almendarez-Torres v. United States, 523 U.S. 224
(1998), requiring that his prior felony conviction be found by
the jury before subjecting him to a greater maximum sentence
under § 1326(b).

  We affirm Valdovinos-Mendez’s conviction and sentence.

  I.   FACTUAL AND PROCEDURAL BACKGROUND

   On July 15, 2008, a police officer encountered Valdovinos-
Mendez driving erratically in the city of Vista, California. The
officer pursued Valdovinos-Mendez as he exited the vehicle
and ran into a nearby alleyway. Valdovinos-Mendez gave the
officer the false name of Juan Manuel Torres Quintero. He
also gave the officer a Mexican driver’s license in the name
of Juan Manuel Torres Quintero with Valdovinos-Mendez’s
photograph on it. The officer arrested Valdovinos-Mendez for
driving under the influence of alcohol.

   A federal grand jury indicted Valdovinos-Mendez for being
found illegally in the United States following removal, in vio-
lation of 8 U.S.C. § 1326. The indictment alleged that
Valdovinos-Mendez had been previously deported and
removed to Mexico. Prior to trial, Valdovinos-Mendez moved
in limine to exclude the CNR and other documents from his
A-file. The district court denied Valdovinos-Mendez’s
motion.
2484           UNITED STATES v. VALDOVINOS-MENDEZ
   The jury heard the testimony of Agent Deven Wooddy,
custodian of Valdovinos-Mendez’s A-file. She described a
typical A-file as a physical folder containing records of an
alien’s immigration status, such as fingerprints, photographs,
removal documents, and applications for re-entry into the
United States. Agent Wooddy testified that her review of
Valdovinos-Mendez’s A-file, as well as her search of two
immigration databases,1 revealed no documentation that
Valdovinos-Mendez had ever applied for permission to re-
enter the United States.

   The jury found Valdovinos-Mendez guilty of violating
§ 1326. At sentencing, the court determined that he had a base
offense level of 8 and the district court imposed a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because
Valdovinos-Mendez had been deported following his convic-
tion for a crime of violence.2 The resulting total offense level
of 24, with a criminal history category V, suggested a range
of imprisonment from 92 to 115 months. The court sentenced
Valdovinos-Mendez to 48 months in prison, followed by three
years of supervised release.

                        II.   DISCUSSION

                                  A.

   [1] We first address Valdovinos-Mendez’s Sixth Amend-
ment claims. The government concedes that the admission of
the CNR at trial violated Valdovinos-Mendez’s right to con-
frontation. See Melendez-Diaz v. Massachusetts, 129 S. Ct.
  1
     Agent Wooddy searched both the Central Index System (“C.I.S.”) and
the Computer Linked Applications Information Management System
(“C.L.A.I.M.S.”).
   2
     Valdovinos-Mendez was convicted of assault with a firearm in viola-
tion of Cal. Penal Code § 245(a)(2), and was sentenced to six years in
prison on May 31, 1991. On October 20, 1998, he was again convicted
and sentenced to six years in prison for assault with a deadly weapon in
violation of Cal. Penal Code § 245(a)(1).
             UNITED STATES v. VALDOVINOS-MENDEZ              2485
2527, 2539 (2009). We have already held that admission of a
CNR is testimonial hearsay, requiring confrontation. See
United States v. Orozco-Acosta, 607 F.3d 1156, 1161 (9th Cir.
2010). If the evidence is improperly admitted, “ ‘we must
remand for a new trial unless the government demonstrates
beyond a reasonable doubt that admission of the evidence was
harmless.’ ” Id. (quoting United States v. Norwood, 603 F.3d
1063, 1068 (9th Cir. 2010)); see also Chapman v. California,
386 U.S. 18, 24 (1967).

   [2] We find that standard met because the CNR was cumu-
lative of other evidence demonstrating Valdovinos-Mendez’s
lack of permission to re-enter. See Orozco-Acosta, 607 F.3d
at 1162. Agent Wooddy testified that she did not find evi-
dence of permission to re-enter in Valdovinos-Mendez’s A-
file or from her own search of the C.I.S. and C.L.A.I.M.S.
databases. Valdovinos-Mendez had an adequate opportunity
to cross-examine Agent Wooddy and there was no evidence
that he actually applied for permission to re-enter. See id. We
hold that admission of the CNR was harmless. See id.

   [3] We likewise hold that admission of the challenged A-
file documents3 did not violate Valdovinos-Mendez’s Sixth
Amendment rights because the documents were non-
testimonial in nature. See United States v. Bahena-Cardenas,
411 F.3d 1067, 1075 (9th Cir. 2005), cert. denied, 126 S. Ct.
1652 (2006) (warrant of removal is non-testimonial); Orozco-
Acosta, 607 F.3d at 1163 (warning to alien ordered deported
is non-testimonial); United States v. Ballesteros-Selinger, 454
F.3d 973, 975 (9th Cir. 2007) (immigration judge’s memo-
randa of oral decisions is non-testimonial). We conclude that
admission of these documents did not violate Valdovinos-
Mendez’s Sixth Amendment right to confrontation.
  3
  Valdovinos-Mendez challenges the admission of the Warrant of
Removal, Warning to Alien Ordered Deported, and the Order from the
Immigration Judge.
2486          UNITED STATES v. VALDOVINOS-MENDEZ
                              B.

   Valdovinos-Mendez urges us to find that the district court
erred under the best evidence rule when it admitted the testi-
mony of Agent Wooddy as to her search of the databases and
the absence of any record of Valdovinos-Mendez applying for
permission to re-enter the United States. We rejected these
arguments in United States v. Diaz-Lopez, 2010 WL 4455880,
at *1, *4-5 (9th Cir. Nov. 9, 2010) (holding that the agent’s
testimony about databases “laid a sufficient foundation for
this relevant evidence to be admissible” and the best evidence
rule does not apply to an agent’s testimony about his search
of databases).

   [4] The best evidence rule applies when the contents of a
writing are sought to be proved, not when records are
searched “and found not to contain any reference to the desig-
nated matter.” Fed. R. Evid. 1002 Advisory Committee’s
Note. Here, Agent Wooddy testified only to the absence of
records, not to the contents of records sought to be proved.
Moreover, public records are an exception to the hearsay rule
and testimony from a qualified agent is permitted to show
“that diligent search failed to disclose the record, report, state-
ment, or data compilation, or entry.” Fed. R. Evid. 803(10).
As public records, the C.I.S. and C.L.A.I.M.S. databases are
self-authenticating. See United States v. Loyola-Dominguez,
125 F.3d 1315, 1318 (9th Cir. 1997). We reject Valdovinos-
Mendez’s arguments on this issue.

                              C.

  [5] We held in United States v. Grajeda, 581 F.3d 1186,
1189-92 (9th Cir. 2009), cert. denied, 131 S. Ct. 583 (Nov. 8,
2010), that a prior conviction for assault with a deadly
weapon or by force likely to produce great bodily injury,
under Cal. Penal Code. § 245, is a “crime of violence” pursu-
ant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, the district
court properly imposed the 16-level enhancement to
               UNITED STATES v. VALDOVINOS-MENDEZ                    2487
Valdovinos-Mendez’s base offense level under the Sentencing
Guidelines.

                                    D.

   Valdovinos-Mendez next argues that his Sixth Amendment
right to a jury trial was violated by a sentencing enhancement
based on a conviction not proved to a jury beyond a reason-
able doubt. Pursuant to 8 U.S.C. § 1326(a), the statutory max-
imum sentence for a defendant convicted of illegal re-entry is
two years. But under § 1326(b), the maximum penalty
increases to ten years for aliens having a prior felony convic-
tion and twenty years for aliens having a prior aggravated fel-
ony conviction. Valdovinos-Mendez asserts that the recent
Supreme Court opinion in Nijhawan v. Holder, 129 S. Ct.
2294 (2009), effectively overruled Almendarez-Torres, 523
U.S. at 235. Almendarez-Torres allowed the district court at
sentencing to find that Valdovinos-Mendez had a prior aggra-
vated felony without submitting the issue to the jury. Because
Valdovinos-Mendez raises an Apprendi4 issue, we review his
claim de novo. United States v. Smith, 282 F.3d 758, 771 (9th
Cir. 2002).

   [6] In Almendarez-Torres, the Supreme Court held that a
prior conviction under § 1326(b)(2) was a sentencing factor,
not an element of the offense. 523 U.S. at 237; see, e.g.,
United States v. Gerritsen, 571 F.3d 1001, 1009 (9th Cir.
2009); United States v. Mendoza-Zaragoza, 567 F.3d 431,
434-37 (9th Cir. 2009), cert. denied, 130 S. Ct. 420 (2009);
United States v. Narvaez-Gomez, 489 F.3d 970, 977-78 (9th
Cir. 2007).

   Valdovinos-Mendez, however, urges us to find that Nijha-
  4
   Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”).
2488         UNITED STATES v. VALDOVINOS-MENDEZ
wan has overruled Almendarez-Torres and that we should
now treat prior felony convictions under § 1326(b) as ele-
ments of the offense. We decline to do so.

   [7] In Nijhawan, the Supreme Court noted that an alien
convicted of an aggravated felony is deportable under 8
U.S.C. § 1227(a)(2)(A)(iii), including a felony involving
fraud or deceit in which the loss to the victim exceeds
$10,000. § 1101(a)(43)(M)(i). Nijhawan, 129 S. Ct. at 2297.
Nijhawan was convicted of mail fraud, but the jury was not
required to determine the amount of loss. Id. at 2298. Nijha-
wan appealed from a deportation order and challenged the
amount of loss determination for that reason. Id.

   [8] Nijhawan speculated that there could be potential con-
stitutional problems if he were to subsequently re-enter the
United States illegally and the sentencing court imposed an
enhancement based on this mail fraud conviction, because the
loss amount would not have been found beyond a reasonable
doubt in the prior criminal proceeding. Id. at 2302. The
Supreme Court dismissed this argument upon the govern-
ment’s suggestion that this hypothetical issue could be simply
resolved by submitting the issue of loss amount to the jury in
the subsequent illegal re-entry trial. Id. at 2303. This dicta
from Nijhawan is not authority for the proposition that
Valdovinos-Mendoza’s prior felony convictions are an ele-
ment of the offense in a prosecution under § 1326. It does not
cast doubt on the continuing validity of the Court’s clear hold-
ing in Almendarez-Torres.

  [9] We conclude that Almendarez-Torres has not been
overruled by Nijhawan and continues to constitute binding
authority. See United States v. Leyva Martinez, ___ F.3d ___,
2011 WL 300188, at *1 (9th Cir. Jan. 27, 2011) (per curiam)
(holding that Nijhawan did not overrule Almendarez-Torres).
The district court did not err when it treated Valdovinos-
Mendez’s prior felony conviction as a sentencing enhance-
ment and increased his statutory maximum sentence.
            UNITED STATES v. VALDOVINOS-MENDEZ          2489
                   III.   CONCLUSION

  The district court did not err in admitting into evidence
documents from and testimony about Valdovinos-Mendez’s
A-file, or in the calculation of his sentence. His conviction
and sentence are AFFIRMED.
