Damion Davis v. Domingo Uribe, Jr., Warden

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 03 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS DAMION DAVIS, No. 11-55747 Petitioner - Appellant, D.C. No. 2:06-cv-07315-VBF v. MEMORANDUM * DOMINGO URIBE, Jr., Warden and BILL LOCKYER, Respondents - Appellees. Appeal from the United States District Court for the Central District of California Valerie Baker Fairbank, District Judge, Presiding Submitted June 26, 2012 ** Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. California state prisoner Damion Davis appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Davis contends that the state court’s selection of an upper-term sentence on the basis of a fact not found by the jury, namely, that he was on parole at the time of the burglary in this case, was not rendered harmless by the probation report’s uncontested representation that Davis was on parole at the time of the crime. This contention fails. Upon review of the record, we are not left in grave doubt that a jury would have found beyond a reasonable doubt that Davis was on parole at the time that he committed the crime in this case; thus, the district court correctly determined that the Apprendi error was harmless. See Estrella v. Ollison, 668 F.3d 593, 598-600 (9th Cir. 2011). AFFIRMED. 2 11-55747