NOT FOR PUBLICATION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