Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 845 F.2d 1029 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Wauneta Lone Wolf MCCALL, Defendant-Appellant.

No. 87-1034.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 1988.* Decided April 21, 1988.

Before SKOPIL, SCHROEDER, and ALARCON, Circuit Judges.


MEMORANDUM** 

Defendant-appellant Wauneta Lone Wolf McCall appeals from the district court's judgment revoking her probation. McCall contends that the district court erred in: (1) revoking her probation and reinstating the original sentence; and (2) denying her Rule 35 motion to reduce the original sentence. McCall also argues that reinstatement of the original sentence constituted cruel and unusual punishment in violation of the eighth amendment. Because we have concluded that no error has been shown, we affirm.

On June 1, 1983, McCall was indicted on one count of conspiring to commit wire fraud, in violation of 18 U.S.C. § 371 (1982), and twenty-two counts of wire fraud, in violation of 18 U.S.C. § 1343 (1982). On February 8, 1985, McCall pled guilty to one count of wire fraud. On March 18, 1985, the United States District Court for the District of Nevada sentenced McCall to five years in prison. On the condition that she serve six months in a jail-type or treatment institution, the court suspended execution of the remainder of the sentence and placed McCall on probation for a period of five years.

On or about August 26, 1985, after she completed her six-month jail term, McCall requested and received permission to serve her probation in Phoenix, Arizona. Prior to leaving Nevada, she signed a waiver consenting to the imposition of additional probation conditions without a hearing. The additional conditions required, inter alia, that McCall obtain the written permission of her supervising probation officer before opening any checking account.

In May 1986, McCall's supervising probation officer discovered that she had obtained an Arizona driver's license and had opened a checking account, both under her Native American name of Sumanitu Isnalaa. When confronted by the officer, McCall denied that she had opened the account and claimed that Sumanitu Isnalaa was a different person.

On July 24, 1986, the Government petitioned the district court in Nevada to revoke McCall's probation. The petition charged that McCall had violated the conditions of her probation in two respects: She obtained an Arizona driver's license under a false name in violation of Arizona law, and she opened a checking account under the name of Sumanitu Isnalaa without first obtaining written permission from her supervising probation officer.

The court scheduled a hearing on the Government's petition. One week before the hearing, McCall admitted to her probation officer that she was Sumanitu Isnalaa and that she had opened a checking account under that name.

On September 9, 1986, a magistrate of the district court held a hearing on the Government's petition. McCall testified that she had opened the checking account at the request of her employer, Maria Muhammad. According to McCall, Muhammad authorized McCall to issue checks drawn on the account to pay certain persons employed by Muhammad on an interior design project in Phoenix.

The magistrate concluded that McCall had violated the terms of her probation but recommended that probation not be revoked. Instead, the magistrate recommended that McCall's probation be continued under the same conditions.

The Government objected to the magistrate's recommendations and requested de novo review by the district court pursuant to 28 U.S.C. § 636(b) (1) (1982). On December 12, 1986, the district court held a hearing to consider the Government's objections. McCall testified at the hearing. The judge ordered revocation of McCall's probation and ordered her to serve the remainder of her suspended five-year sentence.

McCall then filed a motion pursuant to Fed. R. Crim. P. 35 for rehearing and reconsideration of the order revoking probation. McCall claimed that she had received less than 24 hours notice of the December 12 hearing and, as a result, had been unable to gather witnesses to provide mitigating evidence. The district court granted the motion for rehearing.

On January 29, 1987, the district court held a second probation revocation hearing, at which McCall presented extensive mitigating character evidence. Six witnesses testified concerning McCall's volunteer work with Indian victims of family violence, alcoholism, and other problems, her loving relationship with her two minor children, and her spiritual and moral growth. At the close of the hearing, the court reaffirmed its earlier order revoking probation and directing McCall to serve the remainder of the five-year sentence. McCall timely appeals.

McCall contends that the district court erred in revoking her probation and directing her to serve the remainder of her original five-year sentence.

We review a district court's order revoking probation for abuse of discretion or fundamental unfairness. United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir. 1983); Higdon v. United States, 627 F.2d 893, 900 (9th Cir. 1980). The district court has broad discretion to revoke probation if the evidence and facts "reasonably ... 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); see United States v. Lara, 472 F.2d 128, 129 (9th Cir. 1972) ("The District Court has broad discretion in granting or revoking probation."). Upon revoking probation for violation of its conditions, the district court may order the probationer to serve the sentence originally imposed or any lesser sentence. 18 U.S.C. § 3653 (1982) (repealed by Act of Oct. 12, 1984, Pub. L. 98-473, tit. II, ch. II, Secs. 212(a) (2), 235(a) (1), 98 Stat. 1987, 2031 (effective Nov. 1, 1987)).

Because it is undisputed that McCall violated the conditions of her probation, the question before us is whether the district court abused its discretion in ruling that the violations justified revocation of probation. We have previously upheld a district court's order revoking probation on the basis of a probationer's failure to report to his probation officer, despite mitigating evidence of the probationer's exemplary behavior while on probation. See Lara, 472 F.2d at 129-30.

The record before us reveals that the district court permitted McCall to present considerable evidence in mitigation of her violations. The district court appears to have carefully considered such evidence, together with the arguments of counsel for both sides. Notwithstanding the mitigating evidence, the judge concluded that McCall's probation violations, coupled with her refusal to acknowledge them for several months, demonstrated McCall's continuing inability to avoid antisocial behavior. The trial judge concluded that McCall's conduct gave rise to concerns that were not allayed by the mitigating character evidence. Although we may have reached a different conclusion than that reached by the trial judge, we cannot say that the judge abused his discretion in revoking her probation.

United States v. Ferguson, 624 F.2d 81 (9th Cir. 1980), upon which McCall relies, is distinguishable from the present case. In Ferguson, we reversed a district court's order revoking probation because the district court, believing that imposition of the entire suspended sentence was mandatory upon the probationer's admission of probation violations, refused to permit the probationer to present mitigating evidence. Id. at 83. Ferguson merely holds that the district court must permit the probationer to present mitigating evidence. Ferguson does not curtail a trial court's broad discretion to determine whether such evidence vitiates the probation violations.

The district court in the present case permitted McCall to testify at the December 12 hearing, then granted her petition for rehearing specifically to allow her to present additional mitigating evidence. The judge considered all the evidence, then exercised his discretion to revoke probation.

McCall next contends that in light of the unrebutted mitigating evidence she presented, the district court erred in denying her Rule 35 motion to reduce the original five-year sentence.

We will not disturb a district court's denial of a motion for reduction of a sentence absent clear abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 107 S. Ct. 462 (1986). If the sentence falls within the limits prescribed by the legislature, our inquiry ends when we determine that the district court actually exercised its discretion, i.e., that the district court considered the particular circumstances of the defendant. See United States v. DeBright, 710 F.2d 1404, 1409 (9th Cir. 1983), aff'd on reh'g, 730 F.2d 1255 (en banc), modified, 742 F.2d 1196 (9th Cir. 1984).

McCall's five-year sentence fell within the limits prescribed by the legislature for the crime to which she pled guilty. See 18 U.S.C. § 1343 (1982). As discussed in Part II above, the district court considered the mitigating evidence presented by McCall. The court also considered McCall's particular circumstances, including her responsibility for two minor children. The court then exercised its discretion in denying McCall's motion to reduce her sentence. We find no basis in the record for concluding that the court abused its discretion.

McCall contends that the five-year sentence reinstated by the district court upon revocation of her probation constitutes cruel and unusual punishment in violation of the eighth amendment. The eighth amendment prohibits both barbaric punishments and "sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). McCall contends that the five-year sentence is disproportionate to her "crime" of opening an unauthorized checking account.

McCall's argument fails because reinstatement of the original sentence was punishment not for violation of probation conditions but for the original crime of wire fraud. See United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (reinstatement of original sentence did not constitute punishment for probation violation). McCall does not contend that the five-year sentence is disproportionate to her original offense. We conclude, therefore, that the district court did not violate McCall's eighth amendment rights by ordering her to serve the unexpired portion of her original five-year sentence after revoking her probation.

The judgment is AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3