                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 24 2012

                                                                          MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10559

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00032-RCJ-
                                                 RAM-1
  v.

DAMEN ANTHONY DAVIS,                             MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                            for the District of Nevada
                Robert Clive Jones, Chief District Judge, Presiding

                      Argued and Submitted August 10, 2012
                            San Francisco, California

Before:       CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,
              Senior District Judge.**

       Davis contests the revocation of his supervised release based on his failure

to participate in and successfully complete a residential substance abuse program.

Davis was terminated from the New Frontiers substance abuse treatment program

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
on his first day there after fighting with his roommate. Davis argues the district

court applied the incorrect standard of self defense when evaluating Davis’s

testimony about the fight.


      The district court incorrectly stated the standard for self defense. Had Davis

been charged with committing a new crime—assault—as the basis for revoking his

supervised release, the district court’s misstatement would have been error. But

Davis was not charged with a new crime. Rather, the government sought to revoke

Davis’s supervised release because of his failure to complete a residential drug

treatment program. The real question before the court was thus not whether Davis

acted in self defense; instead, the district court needed to decide whether Davis’s

expulsion from New Frontiers constituted a violation of a condition of his

supervised release and whether the seriousness of that violation justified revoking

his release. See United States v. Ramirez, 347 F.3d 792, 800 (9th Cir. 2003) (citing

Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972)); United States v. Comito, 177

F.3d 1166, 1169-70 (9th Cir. 1999) (noting Morrissey extends to the supervised

release context).


      Viewing the record as a whole, we cannot say that the district court abused

its discretion in deciding to revoke Davis’s supervised release. The district court’s


                                          2
findings on the seriousness of Davis’s violation were supported by sufficient

evidence, which revealed that Davis came to the program with a “poor attitude”

that led to a series of conflicts throughout the course of the one day he spent there,

ultimately culminating in the fight with his roommate. As a result of these

problems, New Frontiers deemed Davis a “program failure.” The district court did

not clearly err in finding that Davis was at least partially responsible for that

failure, even if Davis believed he fought with his roommate only in self defense.


      It is more troubling that the district court revoked Davis’s supervised release

without specifically finding that he could not fulfill the conditions of his release by

enrolling in a different drug treatment program. The only evidence that Davis

could not enroll in a different program is an out-of-court statement from Davis’s

probation officer, who stated in Davis’s warrant petition that New Frontiers would

not recommend Davis to other programs. She also stated in the petition that,

because of behavior Davis exhibited on his first day, the probation office had “little

resources” to find him an alternate placement. However, there was no evidence the

office took any efforts to find Davis a new placement beyond the day the petition

was written.




                                           3
      Davis did not challenge below, and does not challenge on appeal, the

evidentiary basis for the district court’s implicit finding that his behavior at New

Frontiers was so poor that no other treatment program would accept him. For

example, Davis could have invoked his right to cross-examine his probation officer

on her out-of-court statements that went to the disputed issue of whether or not

Davis could successfully complete another program. See Comito, 177 F.3d at

1170. Because this issue is not properly before us, we do not address it.



      AFFIRMED.




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