                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 14 2011

                                                                        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,                        No. 07-17194

               Plaintiff - Appellee,             D.C. Nos.    CV-05-03756-DLJ
                                                              CR-98-40082-DLJ
  v.

KEVIN LEE DAVIS, aka Slow and                    MEMORANDUM *
Yellow Dude,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Northern District of California
                  D. Lowell Jensen, Senior District Judge, Presiding

                            Submitted January 12, 2011 **
                              San Francisco, California

Before:        KOZINSKI, Chief Judge, NOONAN and SILVERMAN, Circuit
               Judges.

       Davis’s case was not yet final on direct appeal when the Supreme Court

decided Crawford v. Washington, 541 U.S. 36 (2004). See Caspari v. Bohlen, 510


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                    page 2

U.S. 383, 390 (1994) (“[A] conviction and sentence become final for purposes of

retroactivity analysis when . . . a timely filed petition [for writ of certiorari] has

been finally denied.”). Under Crawford, the admission of Medina’s statement

violated Davis’s Confrontation Clause rights—a point the government now

concedes. See Crawford, 541 U.S. at 68. We therefore remand for the district

court to determine if the error was prejudicial.


       REVERSED AND REMANDED.
