United States v. Joseph Ferguson , 377 F. App'x 718 ( 2010 )

FILED
NOT FOR PUBLICATION APR 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 08-50248, 08-50269
Plaintiff - Appellee, D.C. Nos.
2:04-CR-01131-GAF-11
v. 2:04-CR-01131-GAF-7
JOSEPH FERGUSON AND WILLIAM
FERGUSON, MEMORANDUM *
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted March 1, 2010
Pasadena, California
Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
District Judge.
William Ferguson and Joseph Ferguson appeal from their convictions and
sentences following a jury trial.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
Appellants contend that the district court erred by limiting the scope of
cross-examination of government witnesses in violation of the Appellants’ Sixth
Amendment rights. Joseph Ferguson argues that the district court erred in
calculating his Guidelines range and that his sentence is substantively
unreasonable. William Ferguson contends that his sentence violates the Eighth
Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742, and we affirm.
First, the district court did not abuse its discretion in limiting the scope of
cross-examination of three government witnesses about the facts and
circumstances of an uncharged homicide, because there was extensive evidence
produced at trial from which the jury could assess the government witnesses’
credibility. See United States v. Larson, 495 F.3d 1094, 1101-03 (9 th Cir. 2007)
(en banc). Because we conclude that there was no Confrontation Clause violation,
we need not address whether there was sufficient evidence apart from the
government witnesses’ testimony on which to affirm appellants’ convictions. See
id. at 1106-07; see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Second, the district court did not clearly err in denying Joseph Ferguson’s
request for a minor-role adjustment because the preponderance of the evidence
established that he was not clearly less culpable than his co-conspirators. See
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U.S.S.G. § 3B1.2; cf. United States v. Rojas-Millan, 234 F.3d 464, 472-74 (9 th Cir.
2000). The district court did not clearly err in applying a two-level enhancement
under U.S.S.G. § 2D1.1(b)(1) because it was reasonably foreseeable to Joseph
Ferguson that a firearm would be used in furtherance of jointly undertaken
criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.2; United States v.
Ortiz, 362 F.3d 1274, 1277-78 (9 th Cir. 2004). The district court did not abuse its
discretion in imposing a 97-month sentence because the district court assessed the
sentencing factors under 18 U.S.C. § 3553(a) and the sentence was not
unreasonable in light of the totality of the circumstances. United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Third, William Ferguson’s Eighth Amendment challenge is without merit.
See, e.g., United States v. Parker, 241 F.3d 1114, 1117-18 (9th Cir. 2001); United
States v. Harris, 154 F.3d 1082, 1083-84 (9 th Cir. 1998). Moreover, at oral
argument, counsel indicated that in light of Supreme Court and Ninth Circuit
precedent, William Ferguson did not intend to pursue his Eighth Amendment
claim.
AFFIRMED.
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