Unpublished Disposition, 861 F.2d 268 (9th Cir. 1987)

MEMORANDUM^** 

Gabriel Canez-Uzarraga appeals a district court order revoking his probation. Probation was revoked upon a finding that Canez-Uzarraga had violated an express probationary clause by failing to "get in touch immediately with [his] probationary officer if arrested or questioned by a law-enforcement officer."

Canez-Uzarraga contends that the district court's order denied him due process because it was not supported by sufficient evidence.

"In defining the scope of the due process protection in revocation proceedings, the Supreme Court has insisted upon procedural guarantees sufficient to assure that the finding of a violation 'will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.' " United States v. Garcia, 771 F.2d 1369, 1372 (9th Cir. 1985) (quoting Morrisey v. Brewer, 408 U.S. 471, 484 (1972)).

In 1983, Canez-Uzarraga was sentenced to five years probation by the United States District Court for the District of Arizona. On April 13, 1984, he requested and received permission from his probation officer to move from Arizona to Texas, where he was accepted for transfer by the probation office for the Southern District of Texas.

On June 3, 1985, the Arizona probation office filed a petition for revocation of Canez-Uzarraga's probation, stating that he had violated the terms of his probation by being arrested twice by the Houston Police Department on two different charges. The petition did not allege that Canez-Uzarraga had failed to report these arrests to his probation officer. Canez-Uzarraga was arrested in Arizona on October 1, 1987.

At the district court evidentiary hearing, which consisted of little more than the testimony of an Arizona probation officer, the district court ruled that Canez-Uzarraga had violated the terms of his probation by not informing his probation officer of the arrests in Texas.

The record does not reveal how the district court learned of the failure to report, because the transcript does not show that the probation officer so testified. The Arizona probation officer admitted that he had not spoken with Canez-Uzarraga's probation officer in Texas and that he did not know whether Canez-Uzarraga had reported his arrests to his Texas probation officer.

The state presented no evidence one way or the other on the question whether Canez-Uzarraga had failed to report his arrests to the Texas probation officer. Thus, the district court's decision to revoke Canez-Uzarraga's probation appears not to be based on record evidence to support the finding. See Douglas v. Buder, 412 U.S. 430, 432 (1973) (per curiam).

The record suggests the commission of new crimes in Texas and other reasons to believe that Canez-Uzarraga was not a successful candidate for continued probation. However, these matters were not stated to be reasons for revocation, and the record on them would need further development if they were to be the basis for revocation.

The cause is remanded for a supplemental hearing and a specific finding on the question.

REVERSED.