                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JAN 08 2018
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10155

              Plaintiff-Appellee,                D.C. No.
                                                 2:14-cr-00398-LDG-GWF-1
 v.

BARRY BENJAMIN DOOLEY,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Lloyd George, Senior District Judge, Presiding

                     Argued and Submitted November 17, 2017
                             San Francisco, California

Before:      LEAVY, W. FLETCHER, and PAEZ, Circuit Judges.

      Barry Benjamin Dooley appeals from the district court’s judgment revoking

his supervised release and imposing an 18-month sentence, followed by 18 months

of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

in part, vacate in part, and remand.



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. The district court plainly erred by revoking Dooley’s supervised release

based on a finding of battery with a deadly weapon when the revocation petition

did not identify the Nevada statute he was accused of violating.

      When a revocation petition alleges the commission of a new crime and the

offense charged is not evident from the condition of probation being violated, a

defendant is entitled to notice of the specific statute he is charged with violating.

See United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). Here, the factual

narrative in the petition, alleging that Dooley jabbed his girlfriend in the eye with a

hammer, gave insufficient notice that the government would rest its revocation

argument on the charge of battery with a deadly weapon. Cf. id. at 1093

(distinguishing United States v. Tham, 884 F.2d 1292 (9th Cir. 1989), because the

charge in Tham “was itself evident from the condition of probation that the

defendant was alleged to have violated – associating with a convicted felon,” and

there was additional factual detail of the incident).

      There is a reasonable probability that Dooley would have received a

different sentence absent this error. Dooley’s defense strategy focused on showing

that Dooley committed misdemeanor coercion rather than felony coercion and

most likely would have differed had he been informed of the unnoticed charge.

Furthermore, battery with a deadly weapon was the only charge the district court


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found to support a Grade A violation, which exposed Dooley to a higher

sentencing guideline range. See U.S.S.G. § 7B1.4. Accordingly, the error affected

Dooley’s substantial rights. United States v. Anderson, 201 F.3d 1145, 1152 (9th

Cir. 2000) (“[A] longer sentence undoubtedly affects substantial rights.”). The

potential impact on Dooley’s sentence also satisfies the fourth prong of the plain

error standard: that the error “seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” See United States v. Joseph, 716 F.3d 1273,

1281 (9th Cir. 2013) (stating that this court “regularly deem[s] the fourth prong of

the plain error standard to have been satisfied where, as here, the sentencing court

committed a legal error that may have increased the length of a defendant’s

sentence”), (quoting United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011)).

      2. We reject Dooley’s challenges to the district court’s determination that he

violated 18 U.S.C. § 1512(d)(2) of the witness tampering statute, 18 U.S.C. §

1512(d). Dooley cites no authority for his contention that the same conduct cannot

violate both § 1512(d)(1) (testifying in an official proceeding) and § 1512(d)(2)

(reporting the commission of a violation of supervised release). The plain

language of § 1512(d) contemplates such a result; for example, dissuading a person

from “testifying in an official proceeding” under § 1512(d)(1) can also be

construed as dissuading a person from “assisting in [a criminal] prosecution or


                                            3
proceeding” under § 1512(d)(4). 18 U.S.C. § 1512(d)(1)-(4). Sufficient evidence

supports the district court’s determination that Dooley violated § 1512(d)(2) by

encouraging a witness to come to a revocation proceeding and recant her

accusations. A reasonable factfinder could find Dooley was dissuading this

witness from “reporting to a law enforcement officer or judge of the United States

the commission or possible commission” of a violation of conditions of supervised

release. 18 U.S.C. § 1512(d)(2). Further, we reject Dooley’s contention that the

district court failed to consider Dooley’s affirmative defense. Dooley cites no

authority requiring a specific finding on the affirmative defense, and the record

does not show that the district court failed to consider Dooley’s arguments.

      3. The parties agree the district court plainly erred by not offering Dooley

the opportunity to allocute before imposing a sentence. See United States v.

Daniels, 760 F.3d 920, 924-26 (9th Cir. 2014) (holding that a district court

commits plain error when it does not offer a supervised releasee the chance to

allocute before imposing a sentence).

      We vacate the judgment with respect to the charge of battery with a deadly

weapon. We affirm the judgment with respect to the charge of witness tampering.

Because we vacate the sentence and remand on other grounds, we do not reach

Dooley’s remaining arguments.


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AFFIRMED in part; VACATED in part; REMANDED.




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