                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10284

              Plaintiff - Appellee,              D.C. No. 2:04-cr-00246-RLH-
                                                 GWF-2
  v.

WENDOLYN HOWARD,                                 MEMORANDUM*

              Defendant - Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                       Argued and Submitted May 13, 2014
                            San Francisco, California

Before: RIPPLE,** SILVERMAN, and GOULD, Circuit Judges.

       Wendolyn Howard appeals the revocation of his term of supervised release,

and the sentence imposed thereafter, on the ground that the district court violated

his due process right to confront witnesses against him. We have jurisdiction



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
                                          -2-
pursuant to 28 U.S.C. § 1291, and we vacate Howard’s sentence and remand for re-

sentencing.

      We review a district court’s decision to revoke a term of supervised release

for an abuse of discretion. See United States v. Verduzco, 330 F.3d 1182, 1184

(9th Cir. 2003). Whether a defendant has received due process at a revocation

proceeding is a mixed question of law and fact that we review de novo. See United

States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). “A due process violation at

a revocation proceeding is subject to harmless error analysis.” Id.

      In supervised release revocation proceedings, a defendant “enjoys a due

process right to confront witnesses against him.” United States v. Hall, 419 F.3d

980, 986 (9th Cir. 2005). To determine “whether the admission of hearsay

evidence violates the releasee’s right to confrontation in a particular case, the court

must weigh the releasee’s interest in his constitutionally guaranteed right to

confrontation against the Government’s good cause for denying it.” United States

v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999). “The weight to be given the right

to confrontation in a particular case depends on two primary factors: the

importance of the hearsay evidence to the court’s ultimate finding and the nature of

the facts to be proven by the hearsay evidence.” Id. at 1171. To determine

whether the government has established good cause for denying the right, a court
                                          -3-
must look to “‘both the difficulty and expense of procuring witnesses and the

traditional indicia of reliability borne by the evidence.’” Hall, 419 F.3d at 988

(quoting United States v. Martin, 984 F.2d 308, 312 (9th Cir. 1993)).

      In revoking Howard’s supervised release, the district court’s critical factual

determination was that Howard committed two felonious assaults. In making this

determination, the court relied solely on witness transcripts from collateral cases

before different judges. These transcripts thus constituted highly significant

evidence, and “‘[t]he more significant particular evidence is to a finding, the more

important it is that the releasee be given an opportunity to demonstrate that the

proffered evidence does not reflect “verified fact.”’” Comito, 177 F.3d at 1171

(alteration in original) (quoting Martin, 984 F.2d at 311).

      In order to deny Howard’s significant interest in his confrontation right, the

government thus had to put forth a sufficiently good cause. The only good cause

put forth, which the district court accepted, was that “it was unnecessary to compel

these witnesses to face intimidation or relive fear in order for [Howard] to have yet

another opportunity of confrontation with his victims.” The district court erred in

accepting this as a sufficiently good cause. A defendant is entitled to his

confrontation rights in each individual case, and where, as here, witnesses are

readily available to testify, their preference to avoid having to testify again is
                                          -4-
insufficient by itself to trump a defendant’s confrontation right. See Comito, 177

F.3d at 1172 (holding that the government’s argument that it “was unable to

subpoena [a witness] and that she was unwilling to testify because she was afraid

of” the defendant did not constitute good cause because the government “offered

no evidence of any such fear” and the witness was readily available).

      The district court’s error in finding Howard to be in violation of his

supervised release was harmless, however, because he was subsequently convicted

of two misdemeanor offenses arising from the events at issue, which offenses were

committed while Howard was on supervised release. These convictions, which

Howard acknowledges may be judicially noticed, establish as a matter of law that

he violated his supervised release on the dates alleged. Therefore, the finding that

Howard violated his supervised release may stand, but re-sentencing is required so

that the district court may consider the nature of the judicially-noticed violations,

including that they were found to be misdemeanors.

      VACATED and REMANDED for re-sentencing.
