                            NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             FEB 16 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

JOSEPH P. BECKER,                                No. 08-55527

              Petitioner - Appellant,            D.C. No. 3:07-cv-00576-JM-PCL

  v.
                                                 MEMORANDUM *
MICHAEL MARTEL, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                      Argued and Submitted February 8, 2011
                               Pasadena, California

Before:       KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.

       Although the sentencing judge violated clearly established federal law by

imposing an upper term sentence based on Becker’s “lengthy record,” see

Cunningham v. California, 549 U.S. 270, 288–93 (2007), the error was harmless

because we have no “grave doubt” that a jury would’ve also found Becker’s record



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            page 2

“lengthy” given his numerous prior convictions, see Butler v. Curry, 528 F.3d 624,

648 (9th Cir. 2008) (internal quotation marks omitted).


      AFFIRMED.
