FILED
NOT FOR PUBLICATION
MAR 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30337
Plaintiff-Appellee, D.C. No.
2:02-cr-00272-WFN-1
v.
ANTONIO FELICIANO CRAWFORD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted March 6, 2017**
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Defendant Antonio Feliciano Crawford appeals the judgment revoking his
supervised release and the 30-month within-Guidelines sentence imposed upon
revocation. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. Defendant first argues that the district court violated his Sixth
Amendment and due process rights by admitting at the revocation hearing the
written state-court testimony of a percipient witness who had testified against
Defendant at his state-court criminal drug trial. We have held that the
Confrontation Clause of the Sixth Amendment does not apply to revocation
hearings. United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005). But even if
it did apply, there was no violation of Defendant’s right of confrontation. The
witness was "unavailable" because he invoked his Fifth Amendment privilege.
United States v. Wilmore, 381 F.3d 868, 872 (9th Cir. 2004). Defense counsel
cross-examined the witness during the earlier trial, where Defendant had
substantially the same motivation to cross-examine the witness. See Crawford v.
Washington, 541 U.S. 36, 53–54, 68 (2004) (requiring unavailability and a prior
opportunity for cross-examination for admission of prior testimony in a criminal
trial). Because the admission of the witness’ testimony did not violate Defendant’s
rights under the Confrontation Clause, it necessarily did not violate his more
limited confrontation rights under the Due Process Clause. United States v.
Walker, 117 F.3d 417, 420 (9th Cir. 1997).
2. The sentence was procedurally adequate and substantively reasonable.
The court correctly determined that Defendant had committed a Grade A violation
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because his conduct was a controlled substance offense carrying a potential term of
imprisonment longer than one year, making the sentencing range 24 to 30 months.
U.S.S.G. §§ 7B1.1(a)(1)(A)(ii), 7B1.4(a). The district court adequately explained
the sentence that it imposed, as required by 18 U.S.C. § 3553(c), and did not
punish Defendant for testifying. Rather, the court imposed a sentence at the high
end of the Sentencing Guidelines range because the court found that Defendant had
testified untruthfully. Untruthful testimony is relevant to the sentencing factors
that a district court must consider under § 3553(a), even if it does not result in an
enhancement under U.S.S.G. § 3C1.1. See United States v. Mejia-Pimental, 477
F.3d 1100, 1108 (9th Cir. 2007) ("The district court had ample channels through
which to address [the defendant’s] lies . . .—not least its broad sentencing
discretion under § 3553(a)."); see also 18 U.S.C. § 3553(a)(1) (listing "the history
and characteristics of the defendant" as a factor to be considered in setting a
sentence); id. § 3661 ("No limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose of imposing an
appropriate sentence."); U.S.S.G. § 1B1.4 (similar). We find no error.
AFFIRMED.
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