United States v. Patrick Moran , 403 F. App'x 222 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10037
Plaintiff-Appellee, D.Ct. No. 2: 09 cr-01314-GMS
v.
MEMORANDUM *
PATRICK K. MORAN,
Defendant-Appellant.
Appeal from the United States District Court*
for the Central District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted November 2, 2010 **
San Franscisco, California
Before: GOULD, CALLAHAN, Circuit Judges, and KORMAN, District Judge.***
On October 24, 2008, an officer of the United States Department of Veterans
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior United States District Judge,
Eastern District of New York, sitting by designation.
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Affairs cited defendant Patrick K. Moran for four class B misdemeanor offenses:
disorderly conduct, 38 C.F.R. 1.218(b)(11); unauthorized possession of an
incapacitating liquid, 38 C.F.R. 1.218(b)(40); possession of knives, 38 C.F.R.
1.218(b)(39); and distribution of pamphlets, 38 C.F.R. 1.218(b)(21). After a bench
trial, the U.S. magistrate judge found the defendant guilty of three of the misdemeanor
offenses: disorderly conduct; unauthorized possession of an incapacitating liquid; and
distribution of pamphlets. The citation for the possession of knives had been
dismissed before trial.
On October 8, 2009, the U.S. magistrate judge sentenced the defendant to five
years probation. A fine was not imposed because the defendant apparently did not
have the means to pay it. Unhappy with this disposition, the defendant appealed the
probationary sentence to the district court. On the appeal, he challenged the validity
of the sentence on the ground that he could not be incarcerated if he violated the
conditions of probation. This argument derived from the fact that prior to trial the
U.S. Attorney had informed the U.S. magistrate judge that imprisonment for the
charged offenses would not be sought, and therefore Moran was denied counsel.
Consequently the defendant could not be sentenced to a term of imprisonment,
Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), nor could imprisonment be imposed
as a sanction for a probation violation. United States v. Foster, 904 F.2d 20, 21 (9th
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Cir. 1990). The district judge rejected the defendant’s appeal and affirmed the
sentence of five year’s probation. The defendant now appeals from that order.
The defendant again argues that the probationary sentence is “illegal,” because
he cannot be sentenced to a term of incarceration if he violates any of the conditions
of probation. Moreover, he argues that such a sentence creates a “potential for
prejudice.” Specifically, he suggests that “[i]f the defendant enters the criminal justice
system in the future, his record will reflect a violation of probation and may be
considered by the court in future sentencings.” Such consideration, he argues, would
be unfair because “the court will not necessarily be aware that a hybrid form of
probation which carried no ‘incentive’ of good performance was previously imposed
upon the defendant.” These claims are frivolous.
Passing over the fact that a defendant is legally obligated to comply with the
conditions of probation, a circumstance that should provide good reason for him to do
so, the very fact that a violation of those conditions could affect a subsequent
sentence, if the defendant committed another crime, see, e.g., U.S. Sentencing
Guidelines Manual § 4A1.1(d) (2009), should provide an incentive for him to comply
with the conditions of probation notwithstanding the fact that he could not be
incarcerated for noncompliance. Indeed, when he imposed the sentence of probation,
the United States magistrate judge specifically informed the defendant that future
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courts would consider whether he complied with the conditions of probation in
determining whether he would be released pending trial. Thus, he told the defendant
that the violation “becomes part of one’s record” and that “when I sit in the decision-
making capacity as a judge and I evaluate past conduct of defendants, in particular
with respect to whether or not they can be released during the time that they are
pending trial, one of the things I look to is whether or not they have a past track record
of complying with their terms of probation.”
Nor is there any merit to the argument that the probationary sentence is
“illegal.” Congress specifically authorized the term of probation that was imposed on
the defendant here. 18 U.S.C. § 3561 (2009). Contrary to the defendant’s argument,
the fact that he “cannot not receive imprisonment upon revocation” does not violate
“the statutory mandate that imprisonment be an available remedy upon revocation.”
There is no such all-encompassing statutory mandate. Imprisonment for a violation
of probation is mandated in only four instances: when the probationer (1) possess
controlled substances; (2) possesses firearms; (3) refuses to comply with drug testing;
or (4) fails a drug test three times within a year. 18 U.S.C. § 3565(b) (2009). The fact
this mandate could not be complied with here, assuming such a violation were to take
place, provides no basis for concluding that the sentence was “illegal.” See United
States v. Wilson, 281 F. Supp. 2d 827, 833 (E.D. Va. 2003), aff’d sub nom. United
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States v. Pollard, 389 F.3d 101 (4th Cir. 2004).
Moran cites no case that supports his contention that a sentence of probation is
illegal where the defendant, because he was denied counsel, cannot be sentenced to
imprisonment. Even in Foster, which defendant relies upon and quotes at length, this
court found no fault with the underlying sentence of probation even though Foster had
been denied counsel at trial. 904 F.2d at 21-22. Defendant has not demonstrated any
legal error in his sentence.
AFFIRMED.
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