                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-30337

              Plaintiff-Appellee,                D.C. No.
                                                 2:02-cr-00272-WFN-1
 v.

ANTONIO FELICIANO CRAWFORD,                      MEMORANDUM*

              Defendant-Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                            Submitted March 6, 2017**
                               Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

      Defendant Antonio Feliciano Crawford appeals the judgment revoking his

supervised release and the 30-month within-Guidelines sentence imposed upon

revocation. We affirm.



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      1. Defendant first argues that the district court violated his Sixth

Amendment and due process rights by admitting at the revocation hearing the

written state-court testimony of a percipient witness who had testified against

Defendant at his state-court criminal drug trial. We have held that the

Confrontation Clause of the Sixth Amendment does not apply to revocation

hearings. United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005). But even if

it did apply, there was no violation of Defendant’s right of confrontation. The

witness was "unavailable" because he invoked his Fifth Amendment privilege.

United States v. Wilmore, 381 F.3d 868, 872 (9th Cir. 2004). Defense counsel

cross-examined the witness during the earlier trial, where Defendant had

substantially the same motivation to cross-examine the witness. See Crawford v.

Washington, 541 U.S. 36, 53–54, 68 (2004) (requiring unavailability and a prior

opportunity for cross-examination for admission of prior testimony in a criminal

trial). Because the admission of the witness’ testimony did not violate Defendant’s

rights under the Confrontation Clause, it necessarily did not violate his more

limited confrontation rights under the Due Process Clause. United States v.

Walker, 117 F.3d 417, 420 (9th Cir. 1997).

      2. The sentence was procedurally adequate and substantively reasonable.

The court correctly determined that Defendant had committed a Grade A violation


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because his conduct was a controlled substance offense carrying a potential term of

imprisonment longer than one year, making the sentencing range 24 to 30 months.

U.S.S.G. §§ 7B1.1(a)(1)(A)(ii), 7B1.4(a). The district court adequately explained

the sentence that it imposed, as required by 18 U.S.C. § 3553(c), and did not

punish Defendant for testifying. Rather, the court imposed a sentence at the high

end of the Sentencing Guidelines range because the court found that Defendant had

testified untruthfully. Untruthful testimony is relevant to the sentencing factors

that a district court must consider under § 3553(a), even if it does not result in an

enhancement under U.S.S.G. § 3C1.1. See United States v. Mejia-Pimental, 477

F.3d 1100, 1108 (9th Cir. 2007) ("The district court had ample channels through

which to address [the defendant’s] lies . . .—not least its broad sentencing

discretion under § 3553(a)."); see also 18 U.S.C. § 3553(a)(1) (listing "the history

and characteristics of the defendant" as a factor to be considered in setting a

sentence); id. § 3661 ("No limitation shall be placed on the information concerning

the background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence."); U.S.S.G. § 1B1.4 (similar). We find no error.

      AFFIRMED.




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