USA v. Armstrong

Filing 44

Memorandum Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
No. 4:06-cr-00018-RRB
Plaintiff-Appellee,
MEMORANDUM DECISION
vs.
DUSTIN L. ARMSTRONG
Defendant-Appellant.

I – NATURE OF PROCEEDING
Dustin L. Armstrong (“Armstrong”) appeals from the judgment of the magistrate
judge entered on June 15, 2006, revoking his sentence of probation and sentencing him
to four (4) months incarceration followed by eight (8) months of supervised release.1/
On June 23, 2006, Armstrong timely filed his notice of appeal to this Court.2/ Both
Armstrong and the Government have filed their principal briefs and the time for filing a
reply brief has lapsed. Neither party has requested oral argument and the Court has
determined that oral argument would not assist in the determination of the appeal. The
matter is submitted on the briefs.
II – STATEMENT OF FACTS and JURISDICTION
Armstrong was charged with a violation of 28 U.S.C. § 844 (possession of
marijuana) in the Middle District of Georgia.3/ After waiving counsel and consenting to
trial before a magistrate judge, Armstrong pleaded guilty and, on June 24, 2005, was
sentenced to 12 months probation.4/ The sentencing court imposed 13 standard

1/

Docket 27.

2/

Docket 30.

3/

Docket 1-2.

4/

Docket 1-3 at 1.

conditions of probation, including the requirement he “truthfully answer all inquires by
the probation officer.”5/ In addition, the Court ordered: “The defendant shall not commit
another federal, state, or local crime. The defendant shall not illegally possess a
controlled substance. The defendant shall refrain from any unlawful use of a controlled
substance. The defendant shall submit to one drug test within 15 days of release from
placement on probation and at least two periodic drug tests thereafter.”6/ Armstrong
was also ordered to “participate in a program approved by the U.S. Probation Office for
substance abuse testing and, if necessary, treatment for drug/alcohol addiction and/or
dependency.”7/
Following sentencing, Armstrong relocated to Colorado and later, at some time
prior to December 27, 2005, moved to Alaska after participating in a substance abuse
program in Colorado and was placed on urinalysis monitoring by the Alaska Probation
and Pretrial Services Office,8/ The Alaska Probation office initially supervised him as a
courtesy to the Middle District of Georgia.9/ During the period following his relocation to
Alaska, Armstrong allegedly violated the conditions of his probation and in early March
the Alaska probation officer wrote to the Middle District of Georgia requesting that they
take Armstrong back. The Middle District of Georgia stated that since the violations had
occurred in Alaska, it would be better to transfer jurisdiction to this district.10/ Jurisdiction
over the supervision of Armstrong was transferred to this district on March 29, 2006.11/
On March 29, 2006, the Alaska Probation and Pretrial Services Office filed a
petition to revoke Armstrong’s probation alleging eight grounds.12/

5/

Id. at 2.

6/

Id. at 2.

7/

Id. at 3.

8/

Appellant Dustin L. Armstrong’s Opening Brief, Exhibit A, “Transcript of Proceedings,”
6:8–23 (Docket 35-2 at 6); 11:8–15 (Docket 35-2 at 11).
9/

Id., 24:19–24 (Docket 35-2 at 24).

10/

Id., 6:23–7:2 (Docket 35-2 at 6, 7); 12:3–25 (Docket 35-2 at 12).

11/

Docket 1-1; see 18 U.S.C. § 3605.

12/

Docket 3 at 2–3.

MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 2

1.

The defendant has violated the Mandatory Condition of Supervision
"The defendant shall not commit another federal, state, or local
crime and' shall not illegally possess a controlled substance," in that
on or about September 22, 2005, at or near Denver, Colorado, the
defendant committed the offense's of Driving without Driver's
License and Underage Possession/Consumption of Alcohol. This is
a Grade C violation.

2.

The defendant has violated the Special Condition of Supervision
"You shall participate in a program approved by the U.S. Probation
Officer for substance abuse testing and, if necessary, treatment for
drug/alcohol addiction and /or dependency," in that on or about
December 27,2005, at or near Fairbanks, Alaska, the defendant
failed to comply with drug testing. This is a Grade C violation.

3.

The defendant has violated the Standard Condition of Supervision
number three, "The defendant shall answer truthfully all inquiries by
the probation officer," in that on or about January 5,2006, the
defendant failed, to answer truthfully when questioned by the
probation officer. This is a Grade C violation

4.

The defendant has violated the Mandatory Condition of Supervision
"The defendant shall not commit another federal, state, or local
crime and shall not illegally posses a controlled substance," in that
on or about January 9,2006, at or near Fairbanks, Alaska, the
defendant submitted a urine specimen which tested positive for the
presence of marijuana. This is a Grade C violation.

5.

The defendant has violated the Mandatory Condition of Supervision
"The defendant shall not commit another federal, state, or local
crime and shall not illegally possess a controlled substance," in that
on or about February 2,2006, at or near Fairbanks, Alaska, the
defendant submitted a urine specimen which tested positive for the
presence of opiates. This is a Grade C violation.

6.

The defendant has violated Standard Condition of Supervision
number three, "The defendant shall answer truthfully all inquiries by
the probation officer, in that on or about February 2,2006, at or near
Fairbanks, Alaska, the defendant failed to answer truthfully when
questioned by the probation officer. This is a Grade C violation.

7.

The defendant has violated the Standard Condition of Supervision
6, "The defendant shall notify the probation officer at least ten days
prior to any change of residence or employment," in that on or
about February 25,2006, at or near Fairbanks, Alaska, the
defendant failed to notify the probation officer ten days prior to any
change in residence. This is a Grade C violation.

MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 3

8.

The defendant has violated the Mandatory Condition of Supervision
"The defendant shall not commit another federal, state, or local
crime and shall not illegally possess a controlled substance", in that
on or about March 2,2006, at or near Fairbanks, Alaska, the
defendant submitted a urine specimen which tested positive for the
presence of marijuana. This is a Grade C violation.

Armstrong consented to proceeding before a magistrate judge.13/ The public
defender was appointed to represent Armstrong on March 30, 2006,14/ and a preliminary
hearing held on March 31 at which the magistrate judge found probable cause as to
allegations 1–3, 5, 6, and 8.15/ Armstrong moved to dismiss allegations 2, 3, 5, 6, and
8,16/ which the Government opposed.17/ On May 31, 2006, a final hearing was held on
the petition at which the magistrate judge denied the motion to dismiss and found the
allegations true.18/ Armstrong’s probation was revoked and he was sentenced to four
(4) months (120 days) in prison followed by eight months supervised release.19/
Jurisdiction over the probation revocation proceeding was proper in this district
under 18 U.S.C. § 3605. The magistrate judge had jurisdiction over the probation
revocation proceeding under 18 U.S.C. § 3401(b) and this Court has jurisdiction over
the appeal under 18 U.S.C. § 3402, FED. R. CRIM. P. 58.
III – ISSUES
On appeal Armstrong attacks his conviction on allegations 2, 3, 5, 6, and 8;
conceding his conviction on allegation 1. As presented by the parties the issues are:
1.

Whether the holding of the Ninth Circuit in United States v. Stephens, 424 F.3d

876 (9th Cir.2005), precluding delegation to the probation officer the number of nontreatment drug tests to which a defendant is to be subjected, applies; and

13/

Docket 5.

14/

Docket 6.

15/

Docket 9.

16/

Docket 10.

17/

Docket 12.

18/

Transcript of Proceedings, 22:2–23:5, 35:16–21 (Docket 35-2 at 22, 23, 35).

19/

Transcript of Proceedings, Dockets 27, 29.

MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 4

2.

If Stephens applies, whether the random urinalysis program to which Armstrong

was subjected by the Alaska Probation Office ran afoul of the Stephens holding, i.e., the
random urinalysis testing occurred outside a treatment program.
IV – STANDARD OF REVIEW
This Court, sitting as an appellate court from a decision of a magistrate judge
applies the same standard as in an appeal from the district court to the court of
appeals.20/ Thus, this Court reviews questions of law de novo and the factual findings of
the magistrate judge under a clearly erroneous standard.21/ Moreover, this Court, sitting
as an appellate court, may affirm the judgment of the magistrate judge on any ground
supported by the record, even if it differs from the rationale used by the magistrate
judge.22/
V – DISCUSSION
The record indicates that Armstrong did not appeal from the sentence imposed
by the Middle District of Georgia. Nor does it appear from the record that Armstrong
challenged the conditions of probation imposed on him by the sentencing magistrate
judge at the time that sentence was pronounced. In substance, what was presented to
the magistrate judge in this case, and this Court on appeal, is a collateral attack on the
sentence imposed on Armstrong by United States District Court for the Middle District of
Georgia.
Although, as noted above, jurisdiction over the supervision of the probation and
the revocation proceedings properly lies in this district, that does not exhaust the
jurisdictional issues. More specifically, did the magistrate judge below, or this Court on
appeal, have jurisdiction to review the legality of the sentence imposed by the Middle
District of Georgia? For the reasons that follow, the Court holds that it did not. This
Court has an obligation to determine its own jurisdiction sua sponte.23/

20/

FED. R. CRIM. P. 58(g)(2)(D).

21/

See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002).

22/

See United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir.2006).

23/

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990).

MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 5

The appropriate remedy for collaterally attacking a sentence is by motion brought
under 28 U.S.C. § 2255 in the court that imposed the sentence,24/ in this case the
Middle District of Georgia. The general rule, at least in this circuit, is that where a
challenge to a conviction is cognizable under 28 U.S.C. § 2255 other remedies are
unavailable.25/ The Ninth Circuit has specifically held that an appeal from a probation
revocation is not the proper avenue for a collateral attack on the underlying sentence;
the court should consider the petition for probation revocation as if the underlying
sentence was unquestioned.26/ Upon transfer, this Court was authorized “to exercise all
powers over the probationer * * * that are permitted by [subchapter A of chapter 229] or
subchapter B or D of chapter 227.”27/ While this Court is authorized to modify the terms
of the probation upon proper motion,28/ nothing in the referenced applicable subchapters
authorizes this Court to review the correctness of the sentence imposed by the Middle
District of Georgia or to entertain a motion under 18 U.S.C. § 2255.
Even if the issue of the correctness of the conditions of probation imposed by the
Middle District of Georgia were properly before it, this Court would be compelled to
uphold the judgment of the magistrate judge. Where a defendant fails to object to a
condition of supervised release or probation at sentencing, even on direct appeal the
appellate court would not review it unless it were “plain error.”29/ Although Armstrong
raised the Stephens issue before the magistrate judge at the revocation proceedings in
Alaska, unlike Stephens, he did not raise the issue before the sentencing magistrate
judge in the Middle District of Georgia. As the Government correctly notes, the Ninth

24/

Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991).

25/

See United States v. Valdez-Pacheco, 237 F.3d 1077, 1079–80 (9th Cir.2001)
(“common law writs survive only to the extent that they fill ‘gaps’ in the current systems of
postconviction relief “).
26/

United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.1993); United States v.
Simmons, 812 F.2d 561, 563 (9th Cir.1987); accord United States v. Hofierka, 83 F.3d 357,
363–64 (11th Cir.1996).
27/

18 U.S.C. § 3605.

28/

18 U.S.C. § 3563(c).

29/

United States v. Reardon, 349 F.3d. 608, 618 (9th Cir.2003).

MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 6

Circuit recently held in United States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th
Cir.2006) that a Stephens error was not “plain” and it would not vacate a similar
condition even if imposing the condition was error under Stephens. Although MacielVasquez was decided after the magistrate judge entered the judgment from which
appeal was taken, this Court must on direct review apply the law extant at the time of
the decision.30/
VI – CONCLUSION
For the foregoing reasons, the judgment of the magistrate judge is AFFIRMED.
Dated:

December 6, 2006
s/
RALPH R. BEISTLINE
United States District Court

30/

Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281 (1969) (“[t]he
general rule, however, is that an appellate court must apply the law in effect at the time it
renders its decision”).
MEMORANDUM DECISION, United States v. Armstrong, 4:06-cr-0018-RRB - 7