U.S. v. Ceballos-Zuniga

Full title: UNITED STATES of America, Plaintiff-Appellee v. Osvaldo CEBALLOS-ZUNIGA…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 4, 2010

380 F. App'x 417 (5th Cir. 2010)

Opinion

No. 09-40587 Summary Calendar.

June 4, 2010.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:08-CR-616-1.

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Osvaldo Ceballos-Zuniga (Ceballos) has appealed his jury conviction of illegal reentry following deportation in violation of 8 U.S.C. § 1326. Ceballos argues that, under the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the district court's admission of a certificate of nonexistence of record (CNR), to show that Ceballos had not applied for admission to the United States, violated his rights under the Confrontation Clause of the Sixth Amendment.

As Ceballos concedes, this court's review is for plain error. See United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). Because there was ample other evidence that Ceballos had not applied for admission to the United States, Ceballos cannot show that the district court's error in admitting the CNR affected his substantial rights. See id. at 587. The judgment

AFFIRMED.