Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 15, 2005

Ibarra-Castellano: Crawford does not bar warrant of deportation document

In U.S. v. Ibarra-Cantellano, No. 05-11143 (Nov. 15, 2005), the Court affirmed the defendant’s conviction and 100-month sentence for illegal reentry after deportation following a conviction of an aggravated felony.
The Court rejected the argument, based on Crawford v. Washington, 541 U.S. 36 (2004), that it violated the Confrontation Clause for the government to rely on a warrant of deportation document to establish that Cantellano had previously been deported, and that Cantellano had the right to confront the government agent who actually witnessed him leave the country. The Court ntoed that Crawford merely reached the Confrontation Clause requirements for "testimonial" evidence. The Court found that a warrant of deportation was non-testimonial evidence, because it "is recorded routinely and not in preparation for a criminal trial." The Court noted that its holding was consistent with the two other Circuits to have reached the issue.
The Court also rejected the argument that Crawford applied at the sentencing hearing, and should have precluded the admission of hearsay evidence. The Court noted that other circuits had also concluded that Crawford’s Confrontation Clause holding does not apply at sentencing.
The Court also rejected the argument that Shepherd v. U.S., 125 S.Ct. 1254 (2005), which held that a sentencing court cannot consider police reports and complaint applications to determine the nature of a prior conviction, did not preclude a court, at sentencing, from relying on presentence reports and fingerprint records to determine the fact – as opposed to the nature – of the defendant’s having been previously convicted of a felony.
Finally, the Court rejected the argument that the Sixth Amendment precluded the judge from relying on the fact of a prior conviction to enhance the sentence, citing Almendarez-Torres v. United States, 523 U.S. 224 (1998).