                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         SEP 05 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-30333

                Plaintiff - Appellee,            Dist. Ct. No. 3:10-cr-05733-BHS-
                                                 1
     v.

MARK FAASUAMALIE,                                MEMORANDUM*

                Defendant - Appellant.


                      Appeal from the United States District Court
                   for the Western District of Washington at Tacoma
                      Benjamin H. Settle, District Judge, Presiding

                             Submitted August 29, 2013**
                                Seattle, Washington

Before: MCKEOWN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.***



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Defendant-Appellant Mark Faasuamalie appeals the modification of his

probation and the denial of his motion to dismiss a violation of supervised release

or terminate probation. This Court reviews a district court's decision to revoke or

modify probation for abuse of discretion. United States v. Laughlin, 933 F.2d 786,

788 (9th Cir. 1991) (revocation reviewed for abuse of discretion); see United States

v. Johnson, 892 F.2d 369, 371–72 (4th Cir. 1989) (modification reviewed for abuse

of discretion). We affirm the District Court and deny the appeal.

      The District Court did not abuse its discretion in modifying the condition of

release to include a drug-testing requirement. Mr. Faasuamalie appeals the

imposition of this condition because, he argues, the modification was unrelated to

public safety or rehabilitation. But the law contains no such requirement. Indeed,

the drug-testing requirement is a presumptively mandatory condition of release.

“The court shall provide, as an explicit condition of a sentence of probation . . . one

drug test within 15 days of release on probation and at least 2 periodic drug tests

thereafter . . . ,” but this condition “may be ameliorated or suspended by the court .

. . if the defendant’s presentence report or other reliable sentencing information

indicates a low risk of future substance abuse . . . .” 18 U.S.C. § 3563(a)(5)

(emphases added).




                                          -2-
      Because suspension of the condition is permissive, a district court may

properly impose the drug-testing requirement without any finding of its relation to

abuse or public safety. United States v. Jackson, 189 F.3d 820, 825 (9th Cir. 1999)

(“Neither the fact that there was no evidence before the district court that Jackson

had abused drugs nor that his convictions were not drug related establishes that the

court abused its discretion in imposing the condition.”); see also United States v.

Carter, 159 F.3d 397, 400 (9th Cir. 1998) (district court “is not obligated to”

suspend condition). Additionally, the District Court’s decision to impose the drug-

testing requirement was prompted by Mr. Faasuamalie’s admission of his

consumption of marijuana. The District Court did not abuse its discretion in

modifying the terms of probation by imposing the requirement.

      Nor did the District Court abuse its discretion in denying Mr. Faasuamalie’s

motion to dismiss the violation or terminate probation. He argues two grounds for

the motion: (1) a substantive due-process right to use medical marijuana, and (2)

punishment of indigence. The first was squarely rejected by this Court in Raich v.

Gonzalez, 500 F.3d 850 (9th Cir. 2007). Medical marijuana consumption does not

meet the demanding burden for a substantive due-process right because it is not so

fundamental as to be “implicit in the concept of ordered liberty.” Id. at 866

(quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). Mr. Faasuamalie

                                         -3-
argues that a “new consensus” has emerged regarding the liberty interest of

medical marijuana since Raich, but, of the eight states in the Ninth Circuit that

have enacted medical marijuana legislation, seven did so before Raich. Mr.

Faasuamalie’s substantive due-process argument fails and the District Court did

not abuse its discretion.

      Finally, Mr. Faasuamalie urges that the violation of probation punished his

indigence, in violation of Bearden v. Georgia, 461 U.S. 660 (1983). Unlike the

releasee in Bearden whose probation was revoked for involuntary failure to pay

restitution, Mr. Faasuamalie’s violation was not for his involuntary indigence but

for his voluntary consumption of marijuana. Further, Bearden protects only against

revocation of probation, not modification of conditions that are not punitive. See

United States v. Jackson, 189 F.3d at 824 (drug testing is not a punishment but a

“means to further . . . rehabilitative goals of sentencing”). Accordingly, the district

judge did not abuse his discretion when he denied the motion to dismiss the

violation or terminate probation.

      AFFIRMED.




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