United States v. Willie Clifton ( 2023 )

NOT FOR PUBLICATION FILED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.
3