UNITED STATES v. EYLE (2017)

MEMORANDUM **

Charles Eyle was convicted of two counts of attempted aggravated sexual abuse of a child and one count of aggravated sexual abuse of a child. In a separate trial, Eyle was convicted of being a felon in possession of ammunition. Eyle was sentenced in a consolidated hearing, and his appeals of both convictions are consolidated in this Court.

With respect to his sex-abuse convictions, Eyle contends that the district court erred in allowing the child victim, D.E., to testify via two-way video without holding an evidentiary hearing on the Government’s motion for video testimony. Eyle argues that the district court’s ruling violated both the Confrontation Clause—as interpreted by the Supreme Court in Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)—and the statute prescribing alternative procedures for children testifying in sex-abuse cases, 18 U.S.C. § 3509(b)(1)(B). We review the Sixth Amendment and statutory-interpretation claims de novo. United States v. Yazzie, 743 F.3d 1278, 1288 (9th Cir. 2014). We review a district court’s factual findings for clear error.

Neither the Confrontation Clause nor § 3509 require the district court to hold an evidentiary hearing prior to ruling on the Government’s motion for video testimony. The district court’s findings that D.E. was fearful of the defendant were appropriate and sufficient to allow were appropriate and sufficient to allow video testimony.

Eyle next contends that the district court erred in sentencing him as a “career offender” under United States Sentencing Guideline § 4B1.1(a) because his prior child-sex-abuse convictions under 18 U.S.C. §§ 2244(a)(1) and 2244(a)(3) are not “crimes of violence” within the meaning of the Guidelines. We review de novo a district court’s determination that a prior conviction constitutes a crime of violence under the Guidelines. It is well-established in this circuit that child sex abuse is per se a crime of violence. United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004). Thus, the district court did not err in enhancing Eyle’s sentence in this case.

AFFIRMED.