United States v. David Woods

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2022
• Docket: 21-50011
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50011

Plaintiff-Appellee, D.C. No. 2:87-cr-00085-PA-1

v. MEMORANDUM* DAVID ALLEN WOODS,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted February 14, 2022** Pasadena, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. Federal prisoner David Woods appeals from the district court’s judgment

revoking his probation and the sentence imposed upon revocation. As the parties

are familiar with the facts, we do not recount them here. We affirm.

1. Woods argues that his due process rights were violated by the delay in

prosecuting his probation violation. However, the record reflects that Woods

waived his due process argument. A defendant waives his rights and precludes

appellate review “only when there is evidence that he knew of his rights at the time

and nonetheless relinquished them.” United States v. Depue, 912 F.3d 1227, 1229

(9th Cir. 2019) (en banc). For example, waiver occurs when there is evidence that

the defendant was “aware of and considered objecting to” the alleged error in the

district court, “but ‘for some tactical or other reason, rejected the idea.’” Id. at

1233 (quoting United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)).

At the initial revocation hearing, Woods’ counsel indicated that he intended

to file a motion to dismiss on the ground that the delay violated due process. But

instead, Woods chose to forgo such a motion after the government agreed to drop

one of the allegations in the petition and recommend a time-served sentence.

Further, at the final revocation hearing, Woods confirmed that he understood that

by admitting the allegation in the petition he was giving up his right to pursue a

defense based on the delay. Therefore, Woods knew of his right to assert a due

process claim based on the delay and intentionally chose to relinquish it.

2 Moreover, even if Woods did not waive the issue, he fails to show that the

district court plainly erred by not sua sponte holding that the delay violated due

process. One of the requirements of plain error review is that the error “was clear

or obvious and not subject to reasonable dispute.” United States v. Liew, 856 F.3d

585, 596 (9th Cir. 2017). Under the circumstances of this case, it was not “clear or

obvious” that waiting to prosecute Woods for the probation violation until after he

served his state sentence for second degree murder violated his due process rights.

See, e.g., Moody v. Daggett, 429 U.S. 78, 86-89 (1976) (holding that a federal

parolee imprisoned for a crime committed while on parole was not constitutionally

entitled to a prompt parole revocation hearing upon the issuance of a parole

violation warrant, and noting that where a parolee has been convicted of an offense

plainly constituting a parole violation, it made practical sense to wait to hold the

revocation hearing until after the expiration of his intervening sentence); United

States v. Wickham, 618 F.2d 1307, 1309-10 (9th Cir. 1979) (holding that it did not

violate the probationer’s due process rights to delay his probation hearing until

after the resolution of state charges, and noting that the “mere fact that [the

probationer] was caught first by federal rather than by state officers should have no

functional effect in fixing the priority in which the state and federal matters ought

to have been resolved”). Woods’ reliance on United States v. Hamilton, 708 F.2d

3 1412, 1413-15 (9th Cir. 1983), is misplaced because it is not “clear or obvious”

that it is analogous to Woods’ circumstances.

2. Woods also challenges the district court’s imposition of a 63-month

sentence for the probation violation. The Sentencing Reform Act (“SRA”) of 1984

does not apply to Woods’ sentence because he committed the underlying bank

robbery before the statute’s effective date. See Delancy v. Crabtree, 131 F.3d 780,

784 (9th Cir. 1997). Under applicable, pre-SRA law, district courts are accorded

virtually unfettered discretion in sentencing defendants, and appellate review is

limited to determining whether the sentence falls within statutory limits or there

are constitutional concerns. See Koon v. United States, 518 U.S. 81, 96 (1996);

United States v. Baker, 10 F.3d 1374, 1420 (9th Cir. 1993), overruled on other

grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).

Woods does not dispute that his 63-month sentence for the revocation of

probation fell within the 138-month statutory limit (i.e., the suspended portion of

his original bank robbery sentence). See 18 U.S.C. § 3653 ¶ 4 (1982) (providing

that upon revocation of probation, the district court may “require [the probationer]

to serve the sentence imposed, or any lesser sentence”); United States v.

McDonald, 611 F.2d 1291, 1295 (9th Cir. 1980) (“Upon revocation of probation

the suspension is lifted and the original sentence goes into effect unless a lesser

one is imposed.”).

4 Rather, Woods argues that the district court violated “the constitutional

guarantee of due process” by basing his sentence on “inaccurate, or mistaken

information.” United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991),

abrogated on other grounds as recognized by LaLonde v. County of Riverside, 204

F.3d 947, 957 & n.14 (9th Cir. 2000). In particular, Woods contends that the

district court’s reference at the sentencing hearing to his “ongoing use of alcohol

and drugs” was inaccurate because it ignored that he had successfully addressed

his substance abuse problems while in state prison. However, the district court’s

overall statement that Woods “had not responded favorably to sanctions and/or

attempted interventions aimed at addressing his shortcomings due to his ongoing

use of alcohol and drugs” is not necessarily inaccurate given that Woods had

ongoing substance abuse problems for many years after his bank robbery

conviction and probation violation.

Therefore, Woods fails to show that his 63-month sentence should be

vacated.

AFFIRMED.