Joseph Becker v. Michael Martel , 413 F. App'x 993 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 16 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JOSEPH P. BECKER, No. 08-55527
Petitioner - Appellant, D.C. No. 3:07-cv-00576-JM-PCL
v.
MEMORANDUM *
MICHAEL MARTEL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted February 8, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Although the sentencing judge violated clearly established federal law by
imposing an upper term sentence based on Becker’s “lengthy record,” see
Cunningham v. California, 549 U.S. 270, 288–93 (2007), the error was harmless
because we have no “grave doubt” that a jury would’ve also found Becker’s record
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
“lengthy” given his numerous prior convictions, see Butler v. Curry, 528 F.3d 624,
648 (9th Cir. 2008) (internal quotation marks omitted).
AFFIRMED.