                            NOT FOR PUBLICATION                               FILED
                     UNITED STATES COURT OF APPEALS                            MAY 1 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.   16-10037

                Plaintiff-Appellee,               D.C. No.
                                                  4:14-cr-01418-CKJ-BGM-1
 v.

SERGIO RENTERIA-CASTILLO,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted April 9, 2018
                            San Francisco, California

Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Sergio Renteria-Castillo (“Renteria”) appeals his conviction for conspiracy

to transport an illegal alien for profit, in violation of 8 U.S.C. §1324(a)(1)(A)(v)(I),

and transporting an illegal alien for profit, in violation of 8 U.S.C. §§

1324(a)(1)(A)(ii), 1324(a)(1)(B)(i). We have jurisdiction under 18 U.S.C. §


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
3742(a)(1)(2), 28 U.S.C. §§ 1291 and 1294(1). We affirm.

      Renteria argues that the admission of the videotaped deposition of material

witness Luis Gutierrez-Martinez (“Gutierrez”) violated the Confrontation Clause.

We review claimed Confrontation Clause violations de novo, and a district court’s

decision to admit evidence for abuse of discretion. United States v. Orellana-

Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002).

      The district court did not violate the Confrontation Clause by admitting

Gutierrez’s video deposition testimony at trial. The Confrontation Clause bars

testimonial out-of-court statements unless (1) the declarant is unavailable; and (2)

the defendant had a prior opportunity to cross-examine the witness. Crawford v.

Washington, 541 U.S. 36, 51–54 (2004); United States v. Yida, 498 F.3d 945, 950–

52, 959 (9th Cir. 2007). Renteria, following his attorney’s guidance, voluntarily

stipulated that “Gutierrez [will be] unavailable as defined in Rule 804 of the

Federal Rules of Evidence.” Davies v. Grossmont Union High Sch. Dist., 930 F.2d

1390, 1394 (9th Cir. 1991) (“Constitutional rights may ordinarily be waived [only]

if it can be established by clear and convincing evidence that the waiver is

voluntary, knowing and intelligent.”). A plain reading of the stipulation yields a

clear result—the parties stipulated to Gutierrez’s removal and unavailability. See

Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.

1999) (“Whenever possible, the plain language of the contract should be


                                          2
considered first.”). The effort made by the government to obtain an appearance by

Gutierrez was sufficient under the particular circumstances presented in this case. 1

United States v. Matus-Zayas, 655 F.3d 1092, 1100 (9th Cir. 2011) (The

government only needs to place “some” evidence of continued unavailability on

the record “by detailing its efforts to procure the witness's presence at the trial and

by making a showing that despite its efforts, the witnesses remained unavailable.”).

Further, it is undisputed that, before Gutierrez was deported, Renteria had an

opportunity to cross-examine him in a video deposition. See Yida, 498 F.3d at

950–52, 959 (finding that a video deposition satisfies Crawford’s requirement that

the accused have a prior opportunity to cross-examine the declarant.).

      Accordingly, because Renteria stipulated to Gutierrez’s unavailability and

Renteria had a prior opportunity to cross-examine Gutierrez, the video deposition

testimony was admissible under Crawford, 541 U.S. at 51–54, and, therefore, the

district court did not err in admitting Gutierrez’s deposition testimony at trial.

      AFFIRMED.




1
  We leave open the question whether despite obtaining the stipulation, the
government was under an independent obligation to produce Gutierrez if he were
in fact available; for example, if he were detained within the district we might
reach a different result.

                                           3
