Joseph Becker v. Michael Martel
Appeal Court of Appeals for the Ninth Circuit, Case No. 08-55527

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NOT FOR PUBLICATION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.

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