USA v. Davis, No. 07-17194 (9th Cir. 2011)
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FILED JAN 14 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 07-17194 D.C. Nos. CV-05-03756-DLJ CR-98-40082-DLJ v. KEVIN LEE DAVIS, aka Slow and Yellow Dude, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding Submitted January 12, 2011 ** San Francisco, California Before: KOZINSKI, Chief Judge, NOONAN and SILVERMAN, Circuit Judges. Davis s case was not yet final on direct appeal when the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). See Caspari v. Bohlen, 510 * 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). page 2 U.S. 383, 390 (1994) ( [A] conviction and sentence become final for purposes of retroactivity analysis when . . . a timely filed petition [for writ of certiorari] has been finally denied. ). Under Crawford, the admission of Medina s statement violated Davis s Confrontation Clause rights a point the government now concedes. See Crawford, 541 U.S. at 68. We therefore remand for the district court to determine if the error was prejudicial. REVERSED AND REMANDED.
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