                           NOT FOR PUBLICATION                           FILED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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