FILED NOT FOR PUBLICATION JAN 14 2011

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. 07-17194

Plaintiff - Appellee, D.C. Nos. CV-05-03756-DLJ CR-98-40082-DLJ v.

KEVIN LEE DAVIS, aka Slow and MEMORANDUM * Yellow Dude,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding

Submitted January 12, 2011 ** San Francisco, California

Before: KOZINSKI, Chief Judge, NOONAN and SILVERMAN, Circuit Judges.

Davis’s case was not yet final on direct appeal when the Supreme Court

decided Crawford v. Washington, 541 U.S. 36 (2004). See Caspari v. Bohlen, 510

* 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). page 2 U.S. 383, 390 (1994) (“[A] conviction and sentence become final for purposes of

retroactivity analysis when . . . a timely filed petition [for writ of certiorari] has

been finally denied.”). Under Crawford, the admission of Medina’s statement

violated Davis’s Confrontation Clause rights—a point the government now

concedes. See Crawford, 541 U.S. at 68. We therefore remand for the district

court to determine if the error was prejudicial.

REVERSED AND REMANDED.