Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Nelson Begaye appeals from the district court's order revoking his probation and committing him to prison for violating the terms of his probation by driving without a license. We review for both an abuse of discretion and fundamental fairness, see United States v. Simmons, 812 F.2d 561, 565 (CA9 1987), and we affirm.

In determining whether to revoke probation, a court engages in a two-step analysis: first, it must ascertain whether the probationer violated a condition of his probation; and second, the court must decide whether prison or some other remedy would best protect the public and improve the probationer's chances for rehabilitation. United States v. Grant, 816 F.2d 440, 441 (CA9 1987).

The first part of this analysis is easily disposed of here. A general condition of Begaye's probation was that he refrain from violating any federal, state or local laws. At the time in question, Begaye's driving privileges in Arizona had been revoked by virtue of his conviction on a charge of driving while intoxicated. Begaye's admission that he was driving to and from work at a time when he had no driver's license meant that he was in violation of Arizona law, see Ariz.Rev.Stat.Ann. Sec. 28-473, and, therefore, a term of his probation.

Begaye argues, however, that the district court's ruling was fundamentally unfair because (1) he had no fair notice that driving violated his probation; (2) driving without a license was only a technical violation of his probation; and (3) he had to drive in order to meet the employment and curfew terms of his probation. These contentions fail.

With respect to the first argument, specific notice that an act violates a condition of probation is not required where the act itself is against the law. Simmons, 812 F.2d at 565. Because driving without a license is against Arizona law, see Ariz.Rev.Stat.Ann. Sec. 28-473, the district court was under no obligation to forewarn Begaye that driving without a license would constitute a violation of his probation.

As for the second argument, it borders on the frivolous to contend that one who has been convicted of both vehicular homicide and of driving while intoxicated has only "technically" violated his probation by continuing to drive after having had his license revoked.

Finally, Begaye's third argument fails because there is nothing in the record to indicate that he made any effort to resolve the problem created by the time constraints imposed by his job and the curfew. For example, Begaye could have asked to leave work early enough to avail himself of the admittedly available public transportation, or might have sought to make arrangements for some form of "car pool" if his quitting time could not be adjusted. Indeed, there was no showing that Begaye even bothered to apprise anyone of his alleged problem until after it became known that he was continuing to drive without a license. Under these circumstances, we find the district court's ruling to have been fundamentally fair. Cf., Bearden v. Georgia, 461 U.S. 660, 672 (1983) (probationer who fails to make bona fide effort to honor terms of his probation risks having probation revoked).

The decision of the district court is AFFIRMED.