                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 24 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30062

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00105-RRB-1

  v.
                                                 MEMORANDUM*
ANTHONY RICHARD MOORE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted June 3, 2014
                               Anchorage, Alaska

Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.

       Anthony Moore appeals from the district court’s modification of the

conditions of his supervised release. We have jurisdiction over Moore’s appeal

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We assume that the parties are

familiar with the facts of the case so we do not repeat them here. Reviewing for



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse of discretion, United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), we

affirm.

      The district court did not abuse its discretion by requiring Moore to

participate in an outpatient substance abuse treatment program. A drug-treatment

condition is appropriate if a defendant may have a “present propensity” for drug

abuse. See United States v. Napier, 463 F.3d 1040, 1045 (9th Cir. 2006). The

record indicates that Moore had an extensive history of drug use and that he used

drugs, such as cocaine, up until his arrest for bank robbery. After that point, he

was confined almost continuously until the beginning of this period of supervised

release. The district court did not abuse its discretion by presuming that Moore

could have an ongoing propensity for drug abuse, even if there was no specific

evidence of drug use while he was confined in prison.

      Moore did not show that the condition requiring him to submit to up to

twelve drug tests per month was an abuse of discretion, under these facts. Notably,

Moore did not argue to the district court that this number of drug tests would either

pose a particular hardship or would not be feasible under his personal

circumstances. Instead, he argues that the maximum set by the district court

pursuant to United States v. Stephens, 424 F.3d 876, 884 n.5 (9th Cir. 2005), was

not reasonably necessary for the purposes of supervised release. Stephens


                                          2
contemplated that a district court could “set the maximum number sufficiently high

to give the probation officer flexibility in supervising the offender.” Id. We

cannot say that Moore met his burden of showing that the maximum of twelve

monthly tests was an abuse of discretion here, but our ruling does not imply that

twelve tests per month is an acceptable “default” maximum generally. Nor does it

imply that Moore could not have brought a successful challenge to the condition if

he believed excessive testing were taking place. Our ruling is limited to the facts

of this case, and the argument actually advanced by Moore.

      Under United States v. Sales, 476 F.3d 732, 735–36 (9th Cir. 2007), the

district court did not abuse its discretion by imposing a special condition that

Moore could not use or possess alcohol during his supervised release. Given the

wide variety of drugs Moore used throughout his life, and the fact that his drug use

apparently continued up until his arrest for the crime underlying this appeal, the

district court was reasonably concerned that Moore might turn to alcohol if he was

unable to use other drugs under his conditions of supervised release. The district

court judge specifically suggested that Moore could seek to have the alcohol

condition modified if his drug evaluation indicated that it was not an appropriate

condition.




                                           3
       The district court did not abuse its discretion by requiring Moore to submit

to warrantless searches “based upon reasonable suspicion of contraband or a

violation of a condition of probation.” We have recognized in the probation

context that the ability to conduct suspicionless searches “aids . . . reintegration . . .

into productive society.” See United States v. King, 736 F.3d 805, 809 (9th Cir.

2013) (quoting Samson v. California, 547 U.S. 843, 854 (2006)). The ability to

conduct searches may deter criminal conduct and, through the process of

reintegration, protect the public from further crimes by the defendant. 18 U.S.C. §

3553(a)(2)(B)–(C). Here, the “reasonable suspicion” limitation on searches

adequately protects Moore’s diminished expectation of privacy in light of the

government’s need to ensure his compliance with his conditions of supervised

release. See United States v. Kriesel, 720 F.3d 1137, 1141 (9th Cir. 2013) (citation

omitted) (recognizing that supervised releasees have diminished expectation of

privacy).

       Finally, the imposition of monthly $25 restitution payments was not an

abuse of discretion. The district court properly considered Moore’s financial

situation and ability to work. The court deliberately set an amount that was lower

than what the government requested so as not to overburden Moore.

       AFFIRMED.


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