United States v. Donald Guy ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30196
Plaintiff-Appellee, D.C. No. 9:04-cr-00018-DWM
v.
MEMORANDUM*
DONALD LEE GUY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted November 9, 2018**
Portland, Oregon
Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,*** District Judge.
Donald Guy appeals from the district court’s judgment revoking his
supervised release and challenges the 40-month sentence imposed upon revocation.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
Guy contends that his due process rights were violated at his revocation
hearing. Specifically, Guy argues—and the government concedes—that the
revocation petition provided insufficient notice “of the specific statute he is
charged with violating,” United States v. Havier, 155 F.3d 1090, 1093 (9th Cir.
1998), namely a controlled substance offense under U.S.S.G. § 4B1.2(b). As a
Grade A supervised release violation, the offense exposed him to the higher
advisory Sentencing Guidelines range the district court used in calculating the
sentence. We review de novo whether Guy received sufficient notice of his
alleged violations of supervised release “to satisfy due process incorporated by
Fed. R. Crim. P. 32.1.” Havier, 155 F.3d at 1092. We conclude that he did not.
The revocation petition in this case described conduct constituting simple
possession of methamphetamine, and did not put Guy on notice that he could be
adjudicated of conduct amounting to a controlled substance offense, as defined
under Guidelines section 4B1.2(b), which requires the element of an intent to
manufacture, import, export, distribute or dispense a controlled substance.
Accordingly—notwithstanding the fact that the court heard testimony during the
revocation hearing that supported a finding by a preponderance of the evidence
that Guy had actually committed a controlled substance offense—Guy’s due
process rights were violated. See Havier, 155 F.3d at 1094. This violation was not
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harmless because it exposed Guy to a higher Guidelines range, see Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016), and because, had Guy
received proper notice, he could have altered his strategy at the revocation hearing,
see Havier, 155 F.3d at 1094.
Because Guy’s revocation proceeding was flawed, we vacate the revocation
decision and remand on an open record for amendment of the violations alleged in
a new revocation petition and for a new revocation hearing. See id. However, in
light of the government’s concession of error, any new revocation sentence
imposed on remand may not exceed the original 40-month sentence. Cf. Alabama
v. Smith, 490 U.S. 794 (1989) (noting the circumstances in which an unexplained
increase in sentence may give rise to the presumption of prosecutorial
vindictiveness).
VACATED and REMANDED.
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