                                                                           FILED
                             NOT FOR PUBLICATION                              JUN 23 2010

                                                                        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. 09-50266

                Plaintiff - Appellee,            D.C. No. 3:08-cr-02699-L-1

  v.
                                                 MEMORANDUM *
RAMON GONZALEZ-RODRIGUEZ,

                Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
            M. James Lorenz, Senior United States District Judge, Presiding

                          Argued and Submitted May 4, 2010
                                Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, Senior United
States District Judge.**

       Ramon Gonzalez-Rodriguez appeals from the 55-month sentence imposed

following his conviction for attempted reentry following deportation, 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 Ninth Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
1.    Gonzalez-Rodriguez contends that the district court improperly admitted

into evidence a warrant of removal/deportation in violation of his rights under the

Sixth Amendment’s Confrontation Clause. As our case law recognizes, a warrant

of removal/deportation is not testimonial in nature. See United States v. Orozco-

Acosta, No. 09-50192, 2010 WL 2089474, at *3–5 (9th Cir. May 26, 2010); United

States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005). Therefore, the

admission of the warrant of removal into evidence at trial did not violate the Sixth

Amendment.

2.    Next, Gonzalez-Rodriguez argues that admission of the certificate of

nonexistence of record (“CNR”) violated his rights under the Sixth Amendment’s

Confrontation Clause. As the government concedes, the district court erred in

admitting the CNR. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539

(2009) (plurality) (specifically citing a CNR as an example of testimonial hearsay

requiring confrontation); Orozco-Acosta, 2010 WL 2089474, at *2–3 (9th Cir. May

26, 2010) (recognizing that, under Melendez-Diaz, a CNR is testimonial). The

error, however, was harmless beyond a reasonable doubt. See United States v.

Norwood, 595 F.3d 1025, 1030 (9th Cir. 2010). There was overwhelming

evidence from which a jury could have found that Gonzalez-Rodriguez “had not

obtained the consent of the Attorney General or the Secretary of the Department of


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Homeland Security to reapply for admission into the United States,” Ninth Cir.

Crim. Jury Inst. 9.5A (2003), including the fact that he was found hiding extremely

close to the Mexico border and that he twice confessed to having not sought

permission to re-enter the United States.

3.    Finally, Gonzalez-Rodriguez argues that his statements to the border patrol

agents should not have been admitted at trial because he was not properly advised

of his Miranda rights. We disagree. Even though the border patrol agents

prevented Gonzalez-Rodriguez from leaving, used force to capture another

individual in the group, briefly drew their firearms, and interrogated him about his

citizenship and immigration status, the agents were within the bounds of a valid

Terry stop. See United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009);

United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001). Therefore,

Gonazalez-Rodriguez was not in custody at the time he was initially questioned

and was not entitled to a Miranda warning. Accordingly, Gonzalez-Rodriguez’s

statements to police after he was given the Miranda warning were not tainted by a

prior constitutional violation. Thus, Gonzalez-Rodriguez’s pre- and post-Miranda

statements were properly admitted.

      AFFIRMED.




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