Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 817 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Ruth STUDLEY, Defendant-Appellant.

No. 88-1074.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 13, 1989.Decided April 21, 1989.

Before CHOY, WIGGINS and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Ruth Studley appeals from a district court order revoking probation and imposing a committed fine. We affirm.

Studley contends that her 1984 sentence, which imposed a five-year probation period following eighteen months of incarceration, was unlawful because of her repeatedly expressed religious objections to being placed on probation. The imposition of a period of probation, however, does not require the defendant's consent. See 18 U.S.C. § 3651 (1982 & Supp.IV 1986).1  The district court is instead required to consider three factors: the ends of justice, the best interests of the public, and the best interests of the defendant. Id. The district court here properly considered these factors in determining Studley's sentence. Because the sentence was lawfully imposed, the district court did not err in failing to correct it pursuant to Federal Rule of Criminal Procedure 35.

Nor did the district court err in revoking probation when Studley failed to comply with reporting requirements. See, e.g., United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir. 1983). Former Rule 35's 120-day limit for reducing a sentence has no applicability to the revocation of probation, which may occur at any time during the period of probation. See 18 U.S.C. § 3653 (1982 & Supp.IV 1986).2  While Hamilton requires probation to be revoked within a reasonable period of time after its terms are violated, 708 F.2d at 1414-15, that requirement has been met: Studley's probation officer filed a petition for the revocation of probation in November 1987, less than two months after Studley failed to report. Cf. Hamilton at 1414-15 (three years between violation and government action constitutes unreasonable delay).

Neither the original sentence nor the revocation of probation represented conditions of involuntary servitude, cruel and unusual punishment, or deprivations of due process. The thirteenth amendment does not prohibit the government from incarcerating or imposing requirements of probation on those convicted of crimes. The imposition and revocation of probation are neither cruel nor unusual. Although postal difficulties may have delayed Studley's receipt of a letter notifying her as to the requirements of her probation, such delay is not a deprivation of due process in light of Studley's consistent and sincere assertions that she never intended to comply, and never will comply, with probation requirements.

District courts have the authority to impose committed fines. Although committed fines are not explicitly authorized by any federal statute, their existence is statutorily assumed, see, e.g., 18 U.S.C. § 3569 (1982 & Supp.IV 1986), and the Supreme Court has expressly refused to disapprove their use. See Tate v. Short, 401 U.S. 395, 400-01 (1971). We have upheld the imposition of committed fines on a number of occasions. See, e.g., United States v. Miller, 588 F.2d 1256, 1264-65 (9th Cir.), cert. denied, 440 U.S. 947 (1979); United States v. Estrada de Castillo, 549 F.2d 583, 584-85 (9th Cir. 1976). We need not address whether the Sentencing Reform Act of 1984 has outlawed committed fines, see 18 U.S.C. § 3572(e) (Supp.IV 1986), because the Act does not apply to offenses committed before November 1, 1987. United States v. Rewald, 835 F.2d 215, 216 (1988). Studley was convicted in 1984 and violated the conditions of her probation in September and October 1987, so the Sentencing Reform Act does not apply.

District courts thus have the authority to impose committed fines. Whether or not this particular imposition was an abuse of discretion is, of course, a different question, but it is one that Studley lacks standing to raise. A prisoner cannot challenge the imposition of a committed fine unless (1) she swears she is indigent, and (2) she is being held in prison beyond the duration of her sentence, solely for nonpayment of the fine. Miller, 588 F.2d at 1264. Neither is the case here: Studley has not alleged she is indigent, and the eighteen-month sentence she received in February 1988 when probation was revoked has not yet expired.

The government has moved for sanctions, pursuant to Federal Rule of Appellate Procedure 38. The motion is denied. Although Studley's arguments are without merit, they are not frivolous.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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

 1

This statute was repealed by the Sentencing Reform Act of 1984, but was in effect at the time Studley was sentenced

 2

See note 1 supra