U.S. v. Miller, No. 76-2276

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN and WALLACE; PER CURIAM
Citation549 F.2d 105
Decision Date26 October 1976
Docket NumberNo. 76-2276
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lloyd Dale MILLER, Defendant-Appellant.

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.

Page 106

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non-compliance with the probationary condition requiring abstinence from alcohol and after hearing his probation was revoked.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.

Page 107

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...

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8 practice notes
  • Fiore v. U.S., No. 199
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 13, 1982
    ...of Federal Election Campaign Act reasonably forbidden to engage in political activity while on probation); United States v. Miller, 549 F.2d 105, 107 (9th Cir.1976) (defendant convicted of alcohol-related transgressions reasonably forbidden to consume alcohol while on probation); Malone v. ......
  • Sincup v. Blackwell, No. 61861.
    • United States
    • United States State Supreme Court of Missouri
    • December 15, 1980
    ...requiring total abstinence have been sustained in the face of constitutional and statutory challenges. See United States v. Miller, 549 F.2d 105, 107 (9th Cir. 1976); Sargis v. United States Board of Parole, 391 F.Supp. 362, 366 (E.D.Mo.1975). However, a condition of abstinence in the case ......
  • Robert M., In re
    • United States
    • California Court of Appeals
    • January 17, 1985
    ...alcohol for violating a probation condition prohibiting consumption of alcoholic beverages. (See, United States v. Miller (9th Cir.1976) 549 F.2d 105; Sweeney v. United States (7th Cir.1965) 353 F.2d 10; Flinchum v. Commonwealth of Virginia (W.D.Va.1972) 346 F.Supp. 17, We believe the case ......
  • State ex rel. Mulligan v. Department of Health & Social Services, No. 76-177
    • United States
    • United States State Supreme Court of Wisconsin
    • January 9, 1979
    ...92 Idaho 43, 436 P.2d 709 (1968); Flinchum v. Commonwealth of Virginia, 346 F.Supp. 17, 19-20 (W.D.Va.1972); and United States v. Miller, 549 F.2d 105 (9th Cir. 1976). In these cases there was evidence that the probationer was prone to alcohol abuse but no evidence that the probationer was ......
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8 cases
  • Fiore v. U.S., No. 199
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 13, 1982
    ...of Federal Election Campaign Act reasonably forbidden to engage in political activity while on probation); United States v. Miller, 549 F.2d 105, 107 (9th Cir.1976) (defendant convicted of alcohol-related transgressions reasonably forbidden to consume alcohol while on probation); Malone v. ......
  • Sincup v. Blackwell, No. 61861.
    • United States
    • United States State Supreme Court of Missouri
    • December 15, 1980
    ...requiring total abstinence have been sustained in the face of constitutional and statutory challenges. See United States v. Miller, 549 F.2d 105, 107 (9th Cir. 1976); Sargis v. United States Board of Parole, 391 F.Supp. 362, 366 (E.D.Mo.1975). However, a condition of abstinence in the case ......
  • Robert M., In re
    • United States
    • California Court of Appeals
    • January 17, 1985
    ...alcohol for violating a probation condition prohibiting consumption of alcoholic beverages. (See, United States v. Miller (9th Cir.1976) 549 F.2d 105; Sweeney v. United States (7th Cir.1965) 353 F.2d 10; Flinchum v. Commonwealth of Virginia (W.D.Va.1972) 346 F.Supp. 17, We believe the case ......
  • State ex rel. Mulligan v. Department of Health & Social Services, No. 76-177
    • United States
    • United States State Supreme Court of Wisconsin
    • January 9, 1979
    ...92 Idaho 43, 436 P.2d 709 (1968); Flinchum v. Commonwealth of Virginia, 346 F.Supp. 17, 19-20 (W.D.Va.1972); and United States v. Miller, 549 F.2d 105 (9th Cir. 1976). In these cases there was evidence that the probationer was prone to alcohol abuse but no evidence that the probationer was ......
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