                                                                           FILED
                             NOT FOR PUBLICATION                            APR 29 2010

                                                                       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,                        Nos. 08-50248, 08-50269

               Plaintiff - Appellee,             D.C. Nos.
                                                 2:04-CR-01131-GAF-11
  v.                                             2:04-CR-01131-GAF-7

JOSEPH FERGUSON AND WILLIAM
FERGUSON,                                        MEMORANDUM *

               Defendants - Appellants.



                     Appeal from the United States District Court
                        for the Central District of California
                      Gary A. Feess, District Judge, Presiding

                         Argued and Submitted March 1, 2010
                                Pasadena, California

Before:        CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
               District Judge.

       William Ferguson and Joseph Ferguson appeal from their convictions and

sentences following a jury trial.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
      Appellants contend that the district court erred by limiting the scope of

cross-examination of government witnesses in violation of the Appellants’ Sixth

Amendment rights. Joseph Ferguson argues that the district court erred in

calculating his Guidelines range and that his sentence is substantively

unreasonable. William Ferguson contends that his sentence violates the Eighth

Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742, and we affirm.

      First, the district court did not abuse its discretion in limiting the scope of

cross-examination of three government witnesses about the facts and

circumstances of an uncharged homicide, because there was extensive evidence

produced at trial from which the jury could assess the government witnesses’

credibility. See United States v. Larson, 495 F.3d 1094, 1101-03 (9 th Cir. 2007)

(en banc). Because we conclude that there was no Confrontation Clause violation,

we need not address whether there was sufficient evidence apart from the

government witnesses’ testimony on which to affirm appellants’ convictions. See

id. at 1106-07; see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

      Second, the district court did not clearly err in denying Joseph Ferguson’s

request for a minor-role adjustment because the preponderance of the evidence

established that he was not clearly less culpable than his co-conspirators. See


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U.S.S.G. § 3B1.2; cf. United States v. Rojas-Millan, 234 F.3d 464, 472-74 (9 th Cir.

2000). The district court did not clearly err in applying a two-level enhancement

under U.S.S.G. § 2D1.1(b)(1) because it was reasonably foreseeable to Joseph

Ferguson that a firearm would be used in furtherance of jointly undertaken

criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.2; United States v.

Ortiz, 362 F.3d 1274, 1277-78 (9 th Cir. 2004). The district court did not abuse its

discretion in imposing a 97-month sentence because the district court assessed the

sentencing factors under 18 U.S.C. § 3553(a) and the sentence was not

unreasonable in light of the totality of the circumstances. United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc).

         Third, William Ferguson’s Eighth Amendment challenge is without merit.

See, e.g., United States v. Parker, 241 F.3d 1114, 1117-18 (9th Cir. 2001); United

States v. Harris, 154 F.3d 1082, 1083-84 (9 th Cir. 1998). Moreover, at oral

argument, counsel indicated that in light of Supreme Court and Ninth Circuit

precedent, William Ferguson did not intend to pursue his Eighth Amendment

claim.

AFFIRMED.




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