USA. v. Pinjuv

• Decision Date: 21 July 2000
• Docket Number: No. 99-10597,99-10597
• Citation: 218 F.3d 1125
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAREN PINJUV, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1125

218 F.3d 1125 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAREN PINJUV, Defendant-Appellant.

No. 99-10597

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 20, 2000 Seattle, Washington

Filed July 21, 2000

[Copyrighted Material Omitted] Paul G. Turner, Assistant Federal Public Defender, and John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for the appellant.

J. Gregory Damm, Assistant United States Attorney, and Blair Smith, Assistant United States Attorney, Las Vegas, Nevada, for the appellee.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding; D.C. No. CR-95-00019-1-LDG

Before: ALARCON, O'SCANNLAIN, and GOULD, Circuit Judges.

ALARCON, Circuit Judge:

Karen Pinjuv appeals from the order of the district court revoking her supervised release and sentencing her to a term of imprisonment. The district court revoked Pinjuv's supervised release after Pinjuv admittedly failed to comply with a condition of supervision requiring her "to participate in and successfully complete a mental health treatment program." In this appeal, Pinjuv contends that the condition was void and unenforceable, due to a mental illness which allegedly made compliance impossible, and consequently that the revocation of her supervised release based upon the condition violated due process. We have jurisdiction pursuant to 18 U.S.C. S 3742(a). We hold that the challenged condition was valid and enforceable notwithstanding Pinjuv's assertion that she lacked the power of volition to comply with it. We affirm the revocation of her supervised release, because we conclude that the district court did not err in determining that the imposition of a prison sentence was the proper remedy for her violation.

I

On April 30, 1991, Pinjuv pleaded guilty to bank robbery in the District Court for the District of Nevada and was sentenced to a three-year term of imprisonment and a three-year term of supervised release. She served her prison sentence at the Federal Medical Center in Lexington, Kentucky, where she resided in both the mental health unit and the special housing unit. After her release from the Federal Medical Center on November 25, 1993, she was placed in two separate mental health facilities where she began to serve her term of supervised release. Her mental condition began to deteriorate soon thereafter.

On October 17, 1994, Pinjuv was arrested for throwing rocks through the window of a bank. She was charged with malicious destruction of property, a misdemeanor. She was ordered to pay $438 in restitution.

On January 17, 1995, Pinjuv entered a branch of the Bank of America and grabbed a bank teller by her wrist. She showed the teller a note which stated, "put all the money in a bag do not try anything smart." The teller summoned the service manager to her station and informed him that Pinjuv wanted to rob the bank. Pinjuv told the service manager: "I want her money." The service manager instructed another teller to activate the silent alarm and motioned to the bank security guard to come to the teller station. Before the security guard arrived, Pinjuv walked toward the safety deposit area of the bank. There, the security guard stopped Pinjuv by placing his arm around her neck and pulling one of her arms behind her. She was detained until law enforcement officers took her into custody.

Pinjuv was indicted on January 25, 1995, by a federal grand jury for the crime of attempted bank robbery. She entered a guilty plea on May 31, 1995. On July 27, 1995, the district court sentenced Pinjuv to serve fifty months in prison and to serve a three-year term of supervised release. On March 2, 1999, Pinjuv was released from prison and began serving her term of supervised release. One of the conditions of her release was that she "participate in and successfully complete a mental health treatment program, which may include outpatient counseling or residential placement, as approved and directed by the probation officer."

Pinjuv's probation officer consulted Las Vegas Mental Health, a state agency that employs experts to make assessments and recommendations regarding mental health needs, for a recommendation regarding a suitable mental health program. Approximately three months after her release from prison, Pinjuv was placed in a group home where she caused disruptions almost immediately. While residing at the facility, Pinjuv repeatedly locked herself in the bathroom, refused to eat, called 911, and threatened to hurt herself. Her behavior led to her removal from that group home. The probation officer notified the district court of these incidents and of the fact that her mental health treatment had ceased. He advised against taking any adverse action, however, to allow Pinjuv an opportunity to participate in a second mental health treatment program.

Pinjuv's probation officer again consulted with Las Vegas Mental Health regarding the placement of Pinjuv in another group home. Las Vegas Mental Health, however, encountered difficulty in finding a program suitable to Pinjuv's needs, due in large part to her history of disruptive behavior. Ultimately, Pinjuv's probation officer was successful in placing her in the Salvation Army Pathways Program.

The probation officer advised Pinjuv that he would file a petition to revoke her supervised release if she failed to comply with the rules of the Salvation Army Pathway's Program or if she declined to take her medication, to eat, or to maintain her health. Despite this warning, Pinjuv again exhibited disruptive behavior in her second placement. She also refused to take her medication, declined to eat, and failed to comply with program rules.

On September 17, 1999, Pinjuv's probation officer filed a petition requesting that the district court revoke her term of supervised release and impose a sentence of imprisonment based upon her behavior while a resident in the mental health treatment program. At the revocation proceedings, the Government presented evidence that Pinjuv had failed to comply with the conditions of her supervision, and that she presented a danger to herself, to the members of her family, and to others. The probation officer also advised the court that Pinjuv was not amenable to supervision and that she would receive better mental health treatment in a penal facility. Pinjuv neither offered any evidence to rebut the Government's proof nor presented any evidence that an alternative to imprisonment was available or would be an appropriate remedy. When asked by the court what he would recommend, Pinjuv's counsel replied: "[I]f probation feels she is not amenable to supervision, I would ask that they discharge her from supervision and let her go on the street, basically. It's not appropriate to put someone in prison because they are mentally ill." In rejecting that recommendation, the district court stated "[w]hile I appreciate that her mental condition creates a problem, I don't have any difficulty finding that she has voluntarily created the difficulties she has."

The district court revoked Pinjuv's supervised release and issued an order remanding her to the custody of the Attorney General for a term of incarceration of one year and one day. Because the district court found that Pinjuv was not amenable to supervision, it did not impose an additional period of supervised release following the completion of her term of imprisonment. Pinjuv is currently in custody at FWC Carlswell in Fort Worth, Texas. She is scheduled to be released on August 4, 2000.

II

Pinjuv contends that the condition of supervised release requiring her to "participate in and successfully complete a mental health program" was unreasonable and unenforceable because she lacks the power of volition to comply with such a requirement due to her mental condition. She argues that the revocation of her supervised release based upon her failure to comply with that condition violated due process. She requests that we declare the condition unenforceable, vacate the district court's revocation order, and order her immediate release from prison. To support this position, she relies on dicta in Sweeney v. United States, 353 F.2d 10 (7th Cir. 1965), and United States v. Miller, 549 F.2d 105 (9th Cir. 1976).

We review the conditions of supervised release imposed by a district court for an abuse of discretion. See United States v. Bee, 162 F.3d 1232, 1234 (9th Cir. 1998). We are not bound by dicta in decisions from our court or any other circuit. United States v. Tsinnijinnie, 601 F.2d 1035, 1038 (9th Cir. 1979) (holding that "[t]his panel is not bound by dicta from prior cases"). Before discussing the relevant authority that does control our disposition of this matter, we summarize the actual holdings in the Sweeney and Miller cases.

In Sweeney, the petitioner filed a pro se petition pursuant to 28 U.S.C. S 2255, collaterally attacking his conviction under the Dyer Act on the ground that he was not competent to enter a guilty plea. 353 F.3d at 11. He also argued that his probation had been unjustly revoked after he violated a condition of probation that required him to "refrain from the use of alcoholic beverages in any form." Id. The district court denied the petitioner's request for appointment of counsel to assist him in the S 2255 proceedings and rejected the Government's suggestion that counsel should be appointed. See id. On appeal, the Government conceded that the denial of counsel was erroneous. See id. The Seventh Circuit expressly limited its decision to the confession of error, and remanded the matter for further proceedings. See id. at 11. Nevertheless, it "discuss[ed] briefly [the] petitioner's argument" that his probation was wrongly revoked. Id. The court stated:

It appears from the record that when probation was granted, the district court knew [the] petitioner's history...