Unpublished Disposition, 921 F.2d 282 (9th Cir. 1989)

MEMORANDUM^** 

George Oliver appeals the revocation of his probation and the imposition of a 24 month sentence that is to commence after the prison term ordered by the Arizona state court. We affirm.

On January 26, 1987, Oliver was convicted of violations of 18 U.S.C. §§ 922(a) (6) and 924(a), which provide penalties for making false statements while acquiring a firearm.¹  Oliver was sentenced to a term of five years probation with special conditions that included his refraining from further violations of state or federal laws.

On September 26, 1988, a petition for revocation of probation was filed by the federal probation office because Oliver had been arrested on state felony charges.²  After Oliver was convicted in Arizona state court and received a five year sentence, the petition was supplemented to reflect that Oliver had violated the terms of his probation and to request that his probation be revoked. On June 19, 1989, an initial probation revocation hearing was held during which Oliver admitted violating the conditions of his probation. At the dispositional hearing held on July 28, 1989, the district court revoked Oliver's probation and sentenced him to two years confinement to run consecutively to the state court sentence.

This appeal grows out of an "apparent understanding" among the parties that if Oliver admitted the violations alleged in the probation revocation petition, the Government would not recommend any particular sentence and would not oppose Oliver's request that the federal sentence be allowed to run concurrently with that imposed by the state court. Pursuant to this agreement, Oliver admitted violating the terms of his probation at the initial hearing held on June 19, 1989. Although the court noted the agreement between the parties, it nonetheless ordered that a dispositional hearing be held on July 28, 1989.

At the dispositional hearing, Oliver and his attorney discussed mitigating factors and submitted letters by Oliver and his wife to the court. After stating that it had considered Oliver's arguments and evidence, the district court rejected Oliver's request for a concurrent sentence and instead imposed a consecutive sentence. Oliver's probation was revoked and he was sentenced to two years confinement to be served at the expiration of the state court sentence.

This case presents two issues. First, we consider whether the district court deprived Oliver of due process by refusing to enforce an agreement he had made with the Government. Second, we consider whether the district court erred by imposing a sentence that runs consecutive to the state term.

The district court has broad discretion to revoke probation when its terms are violated. United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977), cert. denied, 436 U.S. 959 (1978). This court, however, may review revocation decisions for fundamental unfairness or an abuse of discretion. United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987).

Oliver's principal argument is that a promise made by the prosecutor and the court that induces an admission of probation violation should be enforced. He contends that unless the promise is honored, due process is violated. Where the plea rests to a significant degree on such a promise of the prosecutor, "so that it can be said to be part of the inducement or consideration, such promise must be fulfilled [by the prosecutor]." Santobello v. New York, 404 U.S. 257, 262 (1971).³ 

The fatal flaw with Oliver's argument is that his agreement was with the prosecutor, not with the court. Oliver's agreement was straightforward: in return for admitting his probation violation, Oliver obtained a promise that the Government would not oppose his request that any sentence imposed run concurrently with the five year state court sentence. The district court was not a party to this agreement nor in any sense bound by it. While Oliver stresses the similarity between his situation and that of Santobello, the two cases differ significantly. The prosecution reneged on its agreement with Santobello, and the Court found that this breach of agreement warranted judicial intervention. Oliver, however, fails to present any evidence that the Government violated its agreement with him. Accordingly, Oliver falls outside the protective scope of Santobello.

Oliver relies on Lepera v. United States, 587 F.2d 433, 436 n. 4 (9th Cir. 1978), for the proposition that " [a] guilty plea is not voluntary if induced by misrepresentation, including an unfulfilled promise." Lepera, however, is distinguished in that the appellant there pled guilty in consideration of a representation made by the prosecution and the district court. As noted above, however, Oliver had no agreement with the district court and his agreement with the Government was honored. Because Oliver does not present convincing evidence of misrepresentation, Lepera is inapplicable.

Oliver argues that due process is offended to the extent that he was deprived of an opportunity to be heard at his probation revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probationer is entitled to a preliminary and a final revocation hearing under the conditions specified in Morrissey v. Brewer, 408 U.S. 471 (1972)). The record, however, shows that Oliver had two hearings concerning the revocation of his probation. On June 19, 1989, an initial hearing was held during which Oliver, represented by counsel, admitted violating the terms of his probation. On July 28, 1989, a dispositional hearing was held during which Oliver and his attorney offered statements and letters of mitigation.

After stating that it had considered the evidence and arguments presented, the district court imposed a consecutive sentence rather than the concurrent sentence Oliver had requested. In considering mitigating circumstances before imposing its sentence, the district court fulfilled its obligations under United States v. Ferguson, 624 F.2d 81, 83 (9th Cir. 1980). Moreover, to the extent Oliver contends that his admission of probation violation was involuntary, we note that neither Rule 11 of the Federal Rules of Criminal Procedure nor Boykin v. Alabama, 395 U.S. 238 (1969)--both of which require a showing that a guilty plea is voluntary and intelligent--apply in the context of probation revocation hearings. United States v. Segal, 549 F.2d 1293, 1296 (9th Cir.), cert. denied, 431 U.S. 919 (1977).

Oliver's second argument is that the imposition of a consecutive sentence is not warranted. Oliver admitted violating the conditions of his probation at both hearings. Oliver had already been sentenced by the state court to a prison term of five years, and there is a statutory presumption that " [m]ultiple terms of imprisonment imposed at different times run consecutively" unless the district court orders concurrent terms. 18 U.S.C. § 3584(a). It appears that the district court weighed the factors governing imposition of a sentence set forth in 18 U.S.C. 3553(a), and Oliver was presented an opportunity to influence the court's deliberations. The district court recognized that "if a defendant is found ... to be in possession of a controlled substance ... the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence." 18 U.S.C. § 3565(a). Because Oliver pled guilty in the Arizona courts to growing marijuana, the nature of his probation violation had a significant impact on his sentence.

The district court has wide discretion to determine an appropriate sentence for probation violation. In view of the nature of Oliver's offenses, the relevant case law, and the governing statutes, Oliver's sentence to a term of 24 months to commence at the conclusion of his state incarceration period is within the discretionary limits of the district court.

AFFIRMED