                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 18 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50126

               Plaintiff - Appellee,             D.C. No. 3:08-cr-03236-WQH

  v.
                                                 MEMORANDUM *
ANTONIO DIAZ-DELGADO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Antonio Diaz-Delgado appeals from his jury-trial conviction and 38-month

sentence imposed for being a deported alien found in the United States, in violation

of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Diaz-Delgado contends that the admission into evidence of a certificate of

non-existence of record (“CNR”) at trial violated his rights under the Sixth

Amendment’s Confrontation Clause. The admission of the CNR was harmless

error because the CNR was cumulative of other evidence demonstrating Diaz-

Delgado’s lack of permission to re-enter the United States, including Diaz-

Delgado’s admission that he returned illegally, and an Immigration and Customs

Enforcement Agent’s testimony that there was no evidence of permission to re-

enter in Diaz-Delgado’s A-file or computer databases. See United States v.

Orozco-Acosta, 607 F.3d 1156, 1161-62 (9th Cir. 2010).

      Diaz-Delgado also contends that Nijhawan v. Holder, 129 S. Ct. 2294

(2009), effectively overruled Almendarez-Torres v. United States, 523 U.S. 224

(1998), such that his prior felony conviction had to be found by a jury before

subjecting him to a greater maximum sentence under 8 U.S.C. § 1326(b). The

district court did not err by treating Diaz-Delgado’s prior felony conviction as a

sentencing enhancement and increasing his statutory maximum sentence. See

United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (holding that

Almendarez-Torres is binding unless it is expressly overruled by the Supreme

Court).

      Finally, Diaz-Delgado contends the district court failed to properly apply the


                                          2                                      10-50126
parsimony principle embodied in 18 U.S.C. § 3553(a). The record reflects that the

district court did not procedurally err, and that Diaz-Delgado’s sentence is not

substantively unreasonable in light of the totality of the circumstances. See United

States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      AFFIRMED.




                                          3                                    10-50126
