                                                                          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                           NOT FOR PUBLICATION                             NOV 12 2010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



                                          2
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



                                            3
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



                                            4
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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