United States v. David Woods ( 2022 )

NOT FOR PUBLICATION FILED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.
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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
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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.”).
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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.
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