think your honor chris may please the court kristen thayer on behalf of appellant barry dooley i'd like to reserve two minutes for a bottle and i'll keep track of my time the district court found that mr dooley committed a grade a violation of his supervisor a lease for a new state offense based on nevada statute that one does not appear in any revocation petition document and two does not legally qualify as a crime of violence to therefore constitute a great a violation of fence either air requires reversal and remains for the court to readjust the grade violation downward turn first to the lack of notice issue the due process did not prove coercion either misdemeanor or felony and that's a opening brief page one thousand to twenty that has those records citations so and in closing argument the government started adding additional offens arguing that duly committed felony coersion charge and also battery with a deadly weapon and battery by a probationer and battery by a probation without it of the weapon the district court coersion and battery with a deadly weapon as the two offenses that qualified as great a violations and that's a due process file ation julie was not on notice that battery with a deadly weapon was eight this has been the standard that notice needs to be effective in mississippi in writing and it must be an revocation petition the defendant must be able to identify the offenses that he is charged the state law offenses he is charged or alleged to have committed while unsupervised release is and this is especially critical for the new vaal file ation condition allegation because that condition is so broad it's that condition of supervised releases any new state federal or local offense so while it's not a person a rule that the state statute or ordinance needs to be listed in the allegation in most cases have your indicates that it should be in there which occurred according to the petition three days prior to the alleged and actually at the hearing it came out that it was potentially week before mr lee could have instead of simply instead of just challenging the credibility of the accuser julie could have looked into an alibi interviewed more witnesses the focus of the hearing was on the coersion which is evident from that if it's questioning and the defense is closing arguments was all about that that's what we would argue requires a reversal you don't even reach the rest of the issues if i'm sorry you reached the crime of violence legal analysis if this court agrees that there was a due process violation as to the notice that they only grade a allegation made or offense that could qualify as grade a is in that single allegation in the first agendum nothing else alleged against mr duly constituted a great a violation so that would require reversal and then additionally we would ask that the court reverse the calls the allegations that mr dooley dissuaded or from testifying because the government didn't prove that he dissuaded the accuser from reporting a violation when the evidence was about her testimony all of that would require on the second world war i think you've got some setting aside the affirmative defense which was raised and not addressed by the district court but looking straight at that the call yes it was but it was talking about her testimony it was not talking about reporting there's two different subsections in that statute one i thought leave it to  one goes to reporting a violation d to goes to testify in the government if the government was if actually the government could only prove that he interfered with or attempted to interfere with her testimony and should have charged him with that so that's just stay the government failed to prove as charged for those two allegations and the second and i'm and you know this  no it did not use those words your honor in fact the focus of that allegation is it looks like it's pulled from the police report from the february second officer there were officer who arrived on the second when the  coersion incident that day yeah and that's what perspective it's written from is what happened that day and then it mentions that she also stated dooley hit her with a hammer some days prior so factually that is in the allegation there's no dispute about that the dispute in the problem the notice problem is that there is no indication that battery was the allegation the government was moving on it was the coersion event for which there was a could have amended it could have corrected that and given to the notice the most glaring proof that it's not is that nevada very uniquely has included in its deadly weapon definition a device used to mark any part of a person with paint or any other substance and it's undisputed that in the valley you can commit simple battery with near an offensive touching however de minimus and if the deadly weapon can be something such as a paint brush under the plain language of the statute nevada's battery that was in the allegation and it was gone with the hammer that man the that had to be the crime of violence would it not because the hammer is not a weapon blast it is huge in a certain way and by using it as a weapon to inflict damage is her injury it becomes a dangerous or deadly weapon does it not hammer without being used for that purpose is not a dangerous weapon it's the use that makes it a dangerous weapon and you're arguing that even though you got some notice that it was done was that the assault was done the battery was done with a hammer then you argue that that's not or a crime of violence now factually it has to be doesn't it no your honor because while the government's evidence could have proven a battery with a deadly weapon factually that's just the first step of the crime of violen inquiry the second step is the categorical approach that's applied to many sentencing enhanced many areas in this court's law which only looks at the statute it is that you are forbidden everyone is forbidden from looking at the facts of the case be accused of a battery that would constitute a violation of the conditions of probation which prohibit him from committing a crime because it's not  qualify so factually yes but legally that's our problem in this case if this court reaches the crime of violence in court thank you i see him now we've taken you over time but we will give you a chance to good morning may please the court adams like the united states and i want to make one correction and i don't mean to make defense counsel of the center for a word that she said the government could have charged the defendant with with x realize that the charge what there were no charges listed under the second amendment i think it's the first and then to put this in a minute right you could have just amended that you could have said judge we're going to this is what we're going to do we could have your but i'm trying to be clear about what happened just as they they do file these and they don't show them to us before they before i mean it seems like your argument is the one that that's been hinted at here today which is that if you read the allegations it's pretty trying to sound like a weasel and put it off on probation i'm just trying to be clear about what actually happened and i think i mean i think the court does understand our argument i think that it's worth noting that during cross examination of one of our witnesses defense counsel specifically asked whether this conduct stabbing somebody and not that i would constitute battery with a deadly weapon i don't think that they i don't think that this case comes with an have your for that reason i don't think there was confusion about what was actually being charged  i'd like to just because it's interesting i'd like to address that that paintbrush issue very briefly and just argue to the court that this case is that a very good example of of why we have the for the supreme court's rule from buenos elbrus which is legal imagination is not sufficient the statute that they're citing says it's illegal to bring on to school property any device that can be used to mark a body with paint or any other substance as i read that statute that would very obviously include a tube of lipstick because you can twist the bottom of the tube of lipstick and then use it to mark your body the idea that nevada thinks that a tube of lipstick is a deadly weapon requires a lot of legal imagination don't i haven't seen any case law of anyone being prosecuted under that statute for bringing a tube of lipstick to school which would clearly come within the the literal language of the statute i think that's why the supreme court into anus alvarez said more than legal imagination is required that the defendant has to point to a realistic probability of the statute being applied in th law has this broad of a deadly weapon definition it is the explicit statutory words the nevada legislature adopted this definition of death a weapon by incorporation to a school statute and that's not legal submitted for decision