U.S. v. Miller

• Citation: 549 F.2d 105
• Decision Date: 26 October 1976
• Docket Number: No. 76-2276,76-2276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Dale MILLER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 105

549 F.2d 105

37 A.L.R.Fed. 839

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Dale MILLER, Defendant-Appellant.

No. 76-2276.

United States Court of Appeals, Ninth Circuit.

Oct. 26, 1976.

Rehearing and Rehearing En Banc Denied March 18, 1977.

John J. Cleary, Asst. Federal Defender (argued), San Diego, Cal., for defendant-appellant.

Stephen V. Petix, Asst. U.S. Atty., on the brief, Terry J. Knoepp, U.S. Atty., Douglas G. Hendricks, Asst. U. S. Atty. argued, San Diego, Cal., for plaintiff-appellee.

Before GOODWIN and WALLACE, Circuit Judges, and INGRAM, ^* District Judge.

PER CURIAM:

Lloyd Dale Miller appeals from a judgment revoking probation granted to him following his conviction of violation of 18 U.S.C. §§ 3, 371 and 659. Among the conditions included in Miller's grant of probation was that "he not consume any alcohol."

While on probation, Miller was arrested for a violation of California Vehicle Code § 23102(a) (drunk driving) and was convicted of a reduced charge of California Vehicle Code § 23103 (reckless driving). Following these proceedings, the District Court issued its order to show cause as to why probation should not be revoked by reason of Miller's non-compliance with the probationary condition requiring abstinence from alcohol and after hearing his probation was revoked.

On this appeal Miller contends that the condition in question is void because it is vague, is unreasonable, and constitutes the imposition of a cruel and unusual punishment. We disagree and affirm the judgment of revocation of probation and imposition of custodial sentence.

In making the above contentions Miller draws our attention to a recommendation of the Federal Probation Officer included in the pre-sentence report to the effect that Miller be required as a probationary condition to undergo "counseling or treatment for alcoholism." He contends that the failure of the Trial Judge to adopt the recommendation of the Probation Officer and the imposition of the more stringent condition requiring total abstinence constituted an exercise of discretion not reasonably related to the purposes of the Federal Probation Act (18 U.S.C. § 3651) and therefore unreasonable and void.

This Circuit has recognized that the Federal Probation Act has vested great discretion with respect to the granting of probation in the trial courts having jurisdiction over convicted defendants and has adopted as permissible those standards which, when considered in context, can reasonably be said to contribute significantly to the rehabilitation of the convicted person and to reasonably aid law enforcement agencies in the protection of the public. U. S. v. Consuelo-Gonzalez, 521 F.2d 259, 264 (9th Cir. 1975). The probation condition now under...