                                                                               FILED
                           NOT FOR PUBLICATION                                 APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-30172

              Plaintiff - Appellee,              D.C. No. 2:07-cr-02099-FVS-1

  v.
                                                 MEMORANDUM*
OCTAVIO HERMOSO-GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                     Argued and Submitted February 10, 2012
                              Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Octavio Hermoso-Garcia (“Hermoso-Garcia”) appeals from his conviction

and sentence for illegal reentry in violation of 8 U.S.C. § 1326.

       Hermoso-Garcia contends the district court abused its discretion by

admitting into evidence several documents related to his prior removals. We have



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
held that the Certificate of Non-Existence of Record (“CNR”) is testimonial, so

admitting it without an opportunity to cross-examine the declarant violates the

Confrontation Clause. See United States v. Orozco-Acosta, 607 F.3d 1156,

1160–61 & n.2 (9th Cir. 2010).

      In this case, however, the government called Officer Rudolfo Rodriguez,

who testified as to the purpose of the form, the standard procedure for searching

computer records, and the supervisor’s backup verification mechanism. Rodriguez

testified that he personally checked Hermoso-Garcia’s “A-file” and confirmed that

it contained no evidence that the defendant had permission to apply for

readmission. His testimony materially corroborated the CNR. The defense used

its opportunity to cross-examine Rodriguez, sowing a suggestion that Hermoso-

Garcia might have a second A-file. There was no factual indication, however, that

the government’s databases included a duplicate file for Hermoso-Garcia, that he

had ever received permission to apply for readmission, or that Rodriguez had

overlooked any part of his records. We conclude here, as we have in other cases,

that the government has demonstrated beyond a reasonable doubt that any error in

the admission of the CNR was harmless. See id. at 1161; United States v.

Valdovinos-Mendez, 641 F.3d 1031, 1034 (9th Cir. 2011). We need not address




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the government’s alternative argument that Rodriguez was a proper sponsoring

witness for the CNR.

      There was no error in admitting the other documents. The Warrant of

Removal/Deportation is nontestimonial, so its introduction did not violate the

Confrontation Clause. See Orozco-Acosta, 607 F.3d at 1162–64. The Warning to

Alien Ordered Removed or Deported is also nontestimonial, so its introduction

similarly did not violate the Confrontation Clause. See Valdovinos-Mendez, 641

F.3d at 1034–35. The Record of Sworn Statement memorializes the defendant’s

own statement on a form to which the defendant attached his fingerprint and

signature. This falls within the hearsay exception for party admissions. See F.R.E.

801(d)(2)(A); United States v. Felix-Jerez, 667 F.2d 1297, 1299 (9th Cir. 1982).

Hermoso-Garcia does not explain how admission of his own statement violates his

Confrontation Clause rights. See United States v. Orellana-Blanco, 294 F.3d 1143,

1148 (9th Cir. 2002) (“[A] signed statement ordinarily would raise no serious

hearsay or confrontation clause problem.”).

      Hermoso-Garcia also contends that the evidence of three prior removals was

irrelevant, prejudicially cumulative, and improper under F.R.E. 404(b). The

government was required to prove the essential element that Hermoso-Garcia had

been previously deported or removed. Documentation of prior removal would tend


                                         3
to make more probable the fact that he had previously been removed. See F.R.E.

401; United States v. Martinez-Rodriguez, 472 F.3d 1087, 1091 (9th Cir. 1997).

The evidence was not prejudicially cumulative, because the government could use

evidence of more than one prior deportation “to hedge the risk that the jury may

reject the offered proof of one deportation, but not the other.” Martinez-Rodriguez,

472 F.3d at 1091. The evidence was not improper character evidence. “Rule

404(b) does not exclude evidence forming an essential element of the charged

offense.” Id.

      With those documents properly admitted into the record, the district court

did not err in denying Hermoso-Garcia’s motion for a judgment of acquittal. See

United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008).

      Hermoso-Garcia finally argues that the district court abused its discretion at

sentencing by denying him an adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1(a). The discount is generally unavailable for a defendant who, as

here, “puts the government to its burden by contesting material factual matters.”

United States v. Schales, 546 F.3d 965, 976 (9th Cir. 2008). Hermoso-Garcia did

not admit any prior deportation, nor does he fall within a narrow exception for

defendants who contest factual guilt but nonetheless manifest sincere or genuine

contrition. See United States v. Garrido, 596 F.3d 613, 617–18 (9th Cir. 2010).


                                         4
After he was convicted, the defendant told the district court he would return again

for his children, who live in the United States. The district court was within its

discretion in finding that the defendant failed to manifest sincere or genuine

contrition. See United States v. Fellows, 157 F.3d 1197, 1202–03 (9th Cir. 1998).

      AFFIRMED.




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