Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Lawrence M. Francisco ("Francisco") appeals the district court's judgment revoking his probation for leaving a community treatment center without the permission of his probation officer, failing to participate in alcohol rehabilitation and possession of marijuana. We affirm.

BACKGROUND FACTS

Francisco was indicted for violation of 21 U.S.C. § 841(a) (1) and (b) (1) (vii)--possession of marijuana with intent to distribute. Following a jury trial, Francisco was found guilty and sentenced to prison. During the pendency of Francisco's appeal to the Ninth Circuit, the judgment and sentence were vacated when Francisco entered a guilty plea to a lesser included charge under 21 U.S.C. § 841(b) (1) (C) of possession with intent to distribute a lesser amount of marijuana. The district court suspended Francisco's sentence, and placed him on five years probation.

Francisco, however, violated his probation. Although the court did not revoke his probation, it ordered him to participate in an alcohol rehabilitation program and live at a community treatment center. He again violated his probation. A petition to revoke his probation was filed. It alleged that Francisco had violated his probation by (1) leaving the community treatment center and (2) causing himself to be thrown out of the alcohol recovery program due to his unexplained absence from one session. An arrest warrant was issued. One year and nine days later, police officers arrested Francisco.

When the officers arrested Francisco, they found him hiding behind a stove in a residence adjacent to his mother's house. He testified that he had been sleeping until the officers knocked on the door. By the side of the bed, officers found a Tupperware container, a marijuana pipe, and some Zigzag cigarette papers. In the container there were 0.6 grams of marijuana.

At an evidentiary hearing the court concluded that Francisco had violated his probation on the two grounds for which the warrant issued, and by being in possession of marijuana. The court revoked his probation and sentenced Francisco to forty-two months imprisonment.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. Revocation of probation by a district court is reviewed for an abuse of discretion. United States v. Daly, 839 F.2d 598, 599 (9th Cir. 1988). "The standard of proof required is that evidence and facts be such as reasonably to satisfy the judge that the probationer's conduct has not been as required by the conditions of probation." United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir. 1984).

DISCUSSION

Francisco argues that the little over one year delay serving the arrest warrant violated his due process rights since "due process requires reasonable diligence in the issuance and execution of a warrant for arrest for alleged parole violation." McCowan v. Nelson, 436 F.2d 758, 760 (9th Cir. (1970)).

Francisco did not raise this claim below. Generally, this court will not consider an issue raised for the first time on appeal. Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987). There are three exceptions to this rule: "(1) when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, (2) when a change in law raises a new issue while an appeal is pending, and (3) when the issue is purely one of law." Id. These exceptions offer no justification for hearing the warrant issue. There has been no miscarriage of justice or change in the law. Furthermore, the issue is not one of pure law, for a factual inquiry into the delay and the reasons for it would be required.

Francisco also claims that the district court erred when it concluded that he constructively possessed the marijuana found in his apartment. We need not reach that issue. The district judge had sufficient grounds to revoke Francisco's probation even if Francisco did not constructively possess the marijuana.

The district court has broad discretion to revoke probation when the probationer violates his probation conditions. United States v. Tham, 884 F.2d 1262, 1264 (9th Cir. 1989). Reporting violations alone may justify revocation. United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir. 1983).

In United States v. Laughlin, No. 89-10641, slip op. 6421, 6429 (9th Cir. May 21, 1991), the district court determined that the probationer violated two probation conditions. We held that because one of them was an "independent and sufficient ground for the district court's decision" we did not need to consider the validity of the other one. Cf. Higdon v. United States, 627 F.2d 893 (9th Cir. 1980) (appellate court remanded so that the sentencing judge could consider whether the defendant's probation should be revoked solely on the basis of his noncompliance with reporting requirements which related to the performance of impermissible conditions.)

Therefore, since Francisco violated two terms of his probation, the district court did not abuse its discretion in revoking his probation. Leaving the community treatment center without authority and failing to participate in an alcohol rehabilitation program are serious probation violations which justified the conclusion that Francisco was no longer a good rehabilitation risk.

AFFIRMED.