                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           JUL 03 2012

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

DAMION DAVIS,                                    No. 11-55747

               Petitioner - Appellant,           D.C. No. 2:06-cv-07315-VBF

  v.
                                                 MEMORANDUM *
DOMINGO URIBE, Jr., Warden and
BILL LOCKYER,

               Respondents - Appellees.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       California state prisoner Damion Davis appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.


          *
             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).
      Davis contends that the state court’s selection of an upper-term sentence on

the basis of a fact not found by the jury, namely, that he was on parole at the time

of the burglary in this case, was not rendered harmless by the probation report’s

uncontested representation that Davis was on parole at the time of the crime. This

contention fails. Upon review of the record, we are not left in grave doubt that a

jury would have found beyond a reasonable doubt that Davis was on parole at the

time that he committed the crime in this case; thus, the district court correctly

determined that the Apprendi error was harmless. See Estrella v. Ollison, 668 F.3d

593, 598-600 (9th Cir. 2011).

      AFFIRMED.




                                           2                                        11-55747
