This disposition is not appropriate for publication and is not precedent *

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously finds this case suitable for decision without **

oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

MATILDA LUCILLE JIM,

 Defendant - Appellant.

No. 09-30174

D.C. No. 2:08-cr-02070-LRS-1

MEMORANDUM *

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, Chief District Judge, Presiding

Submitted December 9, 2009** 

Seattle, Washington

Before: BEEZER, GOULD and TALLMAN, Circuit Judges.

Matilda Jim appeals her conviction and 51-month sentence for assault with a

dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3). Jim argues

that her Fifth and Sixth Amendment rights were violated when one of the

FILED

DEC 14 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 The facts of the case are familiar to the parties and we do not recite them 1

here except as necessary to explain our decision. 

2

government’s witnesses referred to the substance of statements made at the scene

of the assault by witnesses who did not appear at trial. This testimony, Jim argues,

violated her Sixth Amendment right to confront the witnesses against her and her

due process right to a trial free from government vouching. Finally, Jim contends

that the district court erred in increasing her base offense score by six levels due to

the severity of the victim’s injuries. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

Jim’s Fifth and Sixth Amendment claims rely on the same inference from

Officer Piel’s testimony. Officer Piel testified that he spoke with witnesses at the 1

scene and included their statements in his police report. Jim claims that this

testimony indicated: (1) that Officer Piel interviewed witnesses in addition to the

four who testified at trial, and (2) that the additional witnesses named Jim as the

aggressor in the fight. 

After carefully reviewing the record, we determine, contrary to Jim’s

argument, that Officer Piel made no reference to statements made by any nontestifying witness. Where there is no non-testifying witness, there can be no

violation of Jim’s right to confront that witness. See Crawford v. Washington, 541
3

U.S. 36, 51 (2004) (holding that “[t]he text of the Confrontation Clause . . . applies

to ‘witnesses’ against the accused—in other words, those who ‘bear testimony’”). 

Similarly, because the record does not support Jim’s reading of Officer

Piel’s testimony, we find no merit in her Fifth Amendment vouching claim. 

Vouching occurs where a prosecutor “indicates that information not presented to

the jury supports the witness’s testimony.” United States v. Hermanek, 289 F.3d

1076, 1098 (9th Cir. 2002). Jim argues that Officer Piel’s testimony implied that

non-testifying witnesses labeled Jim as the culpable party in the fight. The record

contains no reference to non-testifying witnesses, however, so there is no basis for

Jim’s vouching claim.

Jim’s final claim of error involved the district court’s application of a sixlevel increase to her base offense score because of the severity of the injury to the

victim’s face. See U.S. Sentencing Guidelines §§ 2A2.2(b)(3); 1B1.1 cmt. nn.1(J)

& 1(L). The district court found that the victim’s facial scar constituted “obvious

disfigurement,” a finding that is not clearly erroneous given the testimony that the

victim required 72 stitches and notices the scar daily. The district court’s decision

to apply the six-level enhancement, rather than the five-level enhancement Jim

urged or the seven-level enhancement that the district court also considered, was
4

not an abuse of discretion. See United States v. Rodriguez-Cruz, 255 F.3d 1054,

1059 (9th Cir. 2001).

AFFIRMED.