                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 03 2009

                                                                       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. 09-30060

             Plaintiff - Appellee,               D.C. No. 2:07-CR-00024-WFN

  v.
                                                 MEMORANDUM *
ISAAC S. SPRAUER,

             Defendant - Appellant.



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

                     Argued and Submitted November 5, 2009
                              Seattle, Washington

Before: ALARCÓN, KLEINFELD and CLIFTON, Circuit Judges.

       Isaac Sprauer pled guilty to being a felon in possession of ammunition in

violation of 18 U.S.C. § 922(g)(1). He was sentenced to 77 months of

imprisonment. Sprauer has timely appealed from the district court’s sentencing



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742. We affirm in part, vacate in part, and remand for resentencing.

                                            I

      Sprauer contends the district court erred in relying on the Government

expert’s testimony in finding that Sprauer was competent to enter a guilty plea.

“When analyzing competence to plead guilty, we look to whether a defendant has

‘the ability to make a reasoned choice among the alternatives presented to him.’”

Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (quoting Chavez v. United

States, 656 F.2d 512, 518 (9th Cir. 1981)).

      The district court did not clearly err in finding that Sprauer was competent to

enter a guilty plea, based on the testimony of the prosecution’s expert. “In

performing its fact-finding and credibility functions, a district court is free to

assign greater weight to the findings of experts produced by the Government than

to the opposing opinions of the medical witnesses produced by the defendant.”

United States v. Frank, 956 F.2d 872, 875 (9th Cir. 1992).

                                            II

      Sprauer next contends that the district court erred in increasing his criminal

history points based on information contained in a letter from the Washington State

Department of Corrections. Sprauer argues that his Sixth Amendment


                                            2
confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004), were

violated because he “had not received a copy of that letter, had never had a chance

to cross-examine the author, and objected to it as testimonial hearsay.” (Appellant

Br. 23). Sprauer further contends that the district court also failed to determine

whether the hearsay letter possessed the required indicia of reliability for it to be

admissible.

       We have previously noted that “[t]he Supreme Court held in Williams v.

New York that admission of hearsay evidence at sentencing did not violate the due

process clause.” United States v. Littlesun, 444 F.3d 1196, 1198-99 (9th Cir. 2006)

(citing Williams v. New York, 337 U.S. 241, 246 (1949)). Because “Crawford [did]

not explicitly overrule Williams[,] . . . hearsay [evidence] is admissible at

sentencing, so long as it is ‘accompanied by some minimal indicia of reliability.’”

Id. at 1200 (footnote omitted). The record contains sufficient evidence to satisfy

the “minimal indicia or reliability” required by due process. Accordingly, the

district court did not abuse its discretion in admitting the letter.

                                            III

       Sprauer also asserts that the district court erred in determining that his prior

state conviction for third-degree assault constituted a crime of violence. “We

review de novo ‘whether a state statutory crime constitutes a crime [of violence].’”


                                            3
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007). “To determine

whether a conviction is for a [violent crime], we apply the categorical and modified

categorical approaches established by the Supreme Court in Taylor v. United

States, 495 U.S. 575, 599-602 (1990).” Navarro-Lopez, 503 F.3d at 1067.

      In United States v. Sandoval, 390 F.3d 1077, 1081 (9th Cir. 2004), we held

that third-degree assault under Washington law is not categorically a crime of

violence. The district court erred in applying the modified categorical approach in

determining that third-degree assault was a crime of violence because “[t]he

modified categorical approach [] only applies when the particular elements in the

crime of conviction are broader than the generic crime.” Navarro-Lopez, 503 F.3d

at 1073. “When the crime of conviction is missing an element of the generic crime

altogether, we can never find that ‘a jury was actually required to find all the

elements of’ the generic crime.” Id. The statutory definition of third-degree

assault, Wash. Rev. Code § 9A.36.031(1)(f), lacks the use-of-physical-force

element as that term is defined in U.S.S.G. § 4B1.2(a).

                                     Conclusion

      We AFFIRM the district court’s finding of competency to a enter a plea and

its admission of the letter from the Washington State department of Corrections.




                                           4
We VACATE the district court’s sentencing decision and REMAND for new

sentencing proceedings.




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