United States v. Barry Dooley ( 2018 )

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NOT FOR PUBLICATION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
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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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