United States v. Phillips
United States v. Phillips
Opinion of the Court
MEMORANDUM
Paul J. Phillips appeals the district court’s revocation of his term of supervised release and his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the sentence and reverse and remand, with instructions to reassign the case on remand.
The district court violated clear due process requirements when it refused to allow Phillips to present his argument
We cannot conclude that the due process violations in question were harmless beyond a reasonable doubt.
REVERSED and REMANDED with instructions to reassign this case upon remand.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We note that the court had ordered Phillips
. See Morrissey v. Brewer, 408 U.S. 471, 487— 88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (requiring a hearing “prior to the final decision on revocation”) (emphasis added). We reject the Government's contention that the district court's revocation of supervised release early in the hearing was somehow tentative. It is clear from the record that the only argument the court considered concerned sentencing, not revocation.
. United States v. Sesma-Hernandez, 253 F.3d 403, 408 (9th Cir. 2001) (internal quotation marks and citations omitted).
. See United States v. Gonzalez-Torres, 309 F.3d 594, 600 (9th Cir. 2002); United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998).
. Gonzalez-Torres, 309 F.3d at 600 (stating that reversal is necessary unless "there is no reasonable possibility that the error materially affected the [judgment]”).
. Sesma-Hernandez, 253 F.3d at 409.
Concurring Opinion
The majority holds that the district court violated Phillips’ due process rights by foreclosing oral argument. I respectfully disagree. The Fourth Amendment does not dictate that oral argument is required, but rather that a person on supervised release be given the “opportunity to be heard and to show, if he can, that he did not violate the conditions of his parole.” See United States v. Morressey, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Here, the district court afforded Phillips the due process to which he was entitled by giving him the opportunity to be heard and to show why a violation had not occurred. Phillips availed himself of that opportunity by submitting written evidence. At the hearing, Phillips did not contend that he was being denied a meaningful opportunity to be heard. On the contrary, Phillips’ counsel stated “It is our intent to submit on what has been submitted and argued as to why we believe he’s not in violation.” Thus, Phillips due process rights were not violated by the lack of oral argument at the hearing. See Federal Communications Comm’n v. WJR, The Goodwill Station, Inc., 337 U.S. 265, 276, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949);
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