UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 21-6146 │ v. │ │ GEORGE HARRISON, │ Defendant-Appellant. │ ┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:19-cr-00143-1—Karen K. Caldwell, District Judge.

Decided and Filed: December 1, 2022

Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges.

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COUNSEL ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant. Sangita K. Rao, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Emily K. Greenfield, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

THAPAR, J., delivered the opinion of the court in which SUTTON, C.J., joined in full and COLE, J., joined in part. COLE, J. (pp. 9–16), delivered a separate opinion concurring in Parts I and II and in the judgment. _________________

OPINION _________________

THAPAR, Circuit Judge. George Harrison was convicted of drug and firearms offenses after an informant filmed him selling methamphetamine. He now challenges his conviction and sentence. We affirm. No. 21-6146 United States v. Harrison Page 2

I.

On three occasions, Harrison sold methamphetamine to B.B., a confidential informant who recorded the transactions on video. Based in part on those videos, police arrested Harrison.

B.B. passed away before trial, so he was unable to testify about the controlled buys. As a substitute, the government played B.B.’s videos of the transactions for the jury, over Harrison’s objection, though recordings of statements from B.B. to law-enforcement personnel were excluded on Sixth Amendment grounds. The jury convicted Harrison on three counts of distributing methamphetamine, one count of possessing with intent to sell 500 grams or more of methamphetamine, and one count of being a felon in possession of a firearm.

At sentencing, the district court agreed with the government that Harrison’s prior conviction for complicity to commit murder was a serious violent felony, rejecting Harrison’s argument to the contrary. Thus, Harrison was subject to a sentencing enhancement, raising his mandatory minimum on the possession-with-intent-to-sell count from ten years to fifteen. 21 U.S.C. § 841. So the district court sentenced Harrison to a total of fifteen years’ imprisonment followed by ten years’ supervised release.

Harrison now appeals. First, he argues that the introduction of B.B.’s videos violated his Sixth Amendment right to confront his accusers. Second, he claims the district court improperly characterized his prior conviction as a violent felony at sentencing.

II.

The Confrontation Clause guarantees every criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. Ordinarily that means the defendant must be permitted to cross-examine the prosecution’s witn