FILED
NOT FOR PUBLICATION JUN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30062
Plaintiff - Appellee, D.C. No. 3:12-cr-00105-RRB-1
v.
MEMORANDUM*
ANTHONY RICHARD MOORE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted June 3, 2014
Anchorage, Alaska
Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.
Anthony Moore appeals from the district court’s modification of the
conditions of his supervised release. We have jurisdiction over Moore’s appeal
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We assume that the parties are
familiar with the facts of the case so we do not repeat them here. Reviewing for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse of discretion, United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), we
affirm.
The district court did not abuse its discretion by requiring Moore to
participate in an outpatient substance abuse treatment program. A drug-treatment
condition is appropriate if a defendant may have a “present propensity” for drug
abuse. See United States v. Napier, 463 F.3d 1040, 1045 (9th Cir. 2006). The
record indicates that Moore had an extensive history of drug use and that he used
drugs, such as cocaine, up until his arrest for bank robbery. After that point, he
was confined almost continuously until the beginning of this period of supervised
release. The district court did not abuse its discretion by presuming that Moore
could have an ongoing propensity for drug abuse, even if there was no specific
evidence of drug use while he was confined in prison.
Moore did not show that the condition requiring him to submit to up to
twelve drug tests per month was an abuse of discretion, under these facts. Notably,
Moore did not argue to the district court that this number of drug tests would either
pose a particular hardship or would not be feasible under his personal
circumstances. Instead, he argues that the maximum set by the district court
pursuant to United States v. Stephens, 424 F.3d 876, 884 n.5 (9th Cir. 2005), was
not reasonably necessary for the purposes of supervised release. Stephens
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contemplated that a district court could “set the maximum number sufficiently high
to give the probation officer flexibility in supervising the offender.” Id. We
cannot say that Moore met his burden of showing that the maximum of twelve
monthly tests was an abuse of discretion here, but our ruling does not imply that
twelve tests per month is an acceptable “default” maximum generally. Nor does it
imply that Moore could not have brought a successful challenge to the condition if
he believed excessive testing were taking place. Our ruling is limited to the facts
of this case, and the argument actually advanced by Moore.
Under United States v. Sales, 476 F.3d 732, 735–36 (9th Cir. 2007), the
district court did not abuse its discretion by imposing a special condition that
Moore could not use or possess alcohol during his supervised release. Given the
wide variety of drugs Moore used throughout his life, and the fact that his drug use
apparently continued up until his arrest for the crime underlying this appeal, the
district court was reasonably concerned that Moore might turn to alcohol if he was
unable to use other drugs under his conditions of supervised release. The district
court judge specifically suggested that Moore could seek to have the alcohol
condition modified if his drug evaluation indicated that it was not an appropriate
condition.
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The district court did not abuse its discretion by requiring Moore to submit
to warrantless searches “based upon reasonable suspicion of contraband or a
violation of a condition of probation.” We have recognized in the probation
context that the ability to conduct suspicionless searches “aids . . . reintegration . . .
into productive society.” See United States v. King, 736 F.3d 805, 809 (9th Cir.
2013) (quoting Samson v. California, 547 U.S. 843, 854 (2006)). The ability to
conduct searches may deter criminal conduct and, through the process of
reintegration, protect the public from further crimes by the defendant. 18 U.S.C. §
3553(a)(2)(B)–(C). Here, the “reasonable suspicion” limitation on searches
adequately protects Moore’s diminished expectation of privacy in light of the
government’s need to ensure his compliance with his conditions of supervised
release. See United States v. Kriesel, 720 F.3d 1137, 1141 (9th Cir. 2013) (citation
omitted) (recognizing that supervised releasees have diminished expectation of
privacy).
Finally, the imposition of monthly $25 restitution payments was not an
abuse of discretion. The district court properly considered Moore’s financial
situation and ability to work. The court deliberately set an amount that was lower
than what the government requested so as not to overburden Moore.
AFFIRMED.
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