United States v. Willie Clifton

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2023
• Docket: 22-10078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10078 Plaintiff-Appellee, D.C. No. 3:15-CR-00479 Northern District of California v. MEMORANDUM* WILLIE CLIFTON,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of California Charles R. Breyer, District Court Judge, Presiding

Submitted** February 17, 2023 San Francisco, California

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

Willie Clifton (Clifton) challenges the district court’s revocation of his

supervised release after it found him guilty of two counts of domestic violence and

one count of controlled substance use based on fourteen positive drug tests. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.1

Clifton contends that his due process right to confront an adverse witness

was violated by the admission of hearsay evidence from one of the two women

against whom he committed domestic violence. See Morrissey v. Brewer, 408 U.S.

471, 489 (1972) (holding that due process includes the “the right to confront and

cross examine adverse witnesses (unless the hearing officer specifically finds good

cause for not allowing confrontation)” at a revocation hearing); see also Fed. R.

Crim. P. 32.1(b)(2)(C). We review de novo whether the trial court violated

Clifton’s due process right to confrontation. See United States v. Perez, 526 F.3d

543, 547 (9th Cir. 2008).

We need not reach the issue of whether there was a due process violation

because, even if there was error, it was harmless beyond a reasonable doubt. See

United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003) (“A due process

violation at a revocation proceeding is subject to harmless error analysis.” (citation

omitted)). Clifton would have received the same sentence even absent any alleged

due process violation. Cf. United States v. Havier, 155 F.3d 1090, 1094 (9th Cir.

1998) (finding error was not harmless when district court might have imposed

different sentence if the violation had not occurred). At the revocation hearing,

1 The parties are familiar with the facts of this case, so we include them only as necessary to resolve the appeal.

2 Clifton conceded the controlled substance count, which was substantiated by

fourteen positive drug tests. On appeal, Clifton also does not challenge one of the

domestic violence charges against him. At the sentencing hearing, the district

court was unequivocal it would “give the same sentence” even if Clifton were

guilty of only one of the domestic violence counts in conjunction with the

controlled substance count. Notably, the district court justified this statement by

relying almost exclusively on the seriousness of the unchallenged domestic

violence allegation, which the court called “wildly disproportionate,” to the alleged

provocation of the victim and which left the victim with an eye that was so bruised

and swollen to almost complete closure that the district court deemed it, after

viewing photographic evidence, “horrific.”2 On this record, it is plain that the

district court found that the unchallenged controlled substance use and

unchallenged act of domestic violence sufficiently serious to impose the sentence

Clifton received. Therefore, any error as to the second domestic violence charge

was harmless.

AFFIRMED.

2 Below, Clifton admitted that he punched the victim, but argued that he acted in self-defense. In a determination also unchallenged here, the district court found that Clifton could not show he used “no more force than was necessary” as required for self-defense given the “excessive” force from his punch that resulted in a serious injury to the victim’s eye.