United States v. Mark Faasuamalie

MEMORANDUM *** D efendant-App ellant Mark Faasuamalie appeals the modification of his probation and the denial of his motion to dismiss a violation of supervised release or terminate probation. This Court reviews a district court’s decision to revoke or modify probation for abuse of discretion. United States v. Laughlin, 933 F.2d 786, 788 (9th Cir.1991) (revocation reviewed for abuse of discretion); see United States v. Johnson, 892 F.2d 369, 371-72 (4th Cir.1989) (modification reviewed for abuse of discretion). We affirm the District Court and deny the appeal. The District Court did not abuse its discretion in modifying the condition of release to include a drug-testing requirement. Mr. Faasuamalie appeals the imposition of this condition because, he argues, the modification was unrelated to public safety or rehabilitation. But the law contains no such requirement. Indeed, the drug-testing requirement is a presumptively mandatory condition of release. “The court shall provide, as an explicit condition of a sentence of probation ... one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter ...,” but this condition “may be ameliorated or suspended by the court ... if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse....” 18 U.S.C. § 3563(a)(5) (emphases added). Because suspension of the condition is permissive, a district court may properly impose the drug-testing requirement without any finding of its relation to abuse or public safety. United States v. Jackson, 189 F.3d 820, 825 (9th Cir.1999) (“Neither the fact that there was no evidence before the district court that Jackson had abused drugs nor that his convictions were not drug related establishes that the court abused its discretion in imposing the condition.”); see also United States v. Carter, 159 F.3d 397, 400 (9th Cir.1998) (district court “is not obligated to” suspend condition). Additionally, the District Court’s decision to impose the drug-testing requirement was prompted by Mr. Faasua-malie’s admission of his consumption of marijuana. The District Court did not abuse its discretion in modifying the terms of probation by imposing the requirement. Nor did the District Court abuse its discretion in denying Mr. Faasuamalie’s motion to dismiss the violation or terminate probation. He argues two grounds for the motion: (1) a substantive due-process right to use medical marijuana, and (2) punishment of indigence. The first was squarely rejected by this Court in Raich v. Gonzales, 500 F.3d 850 (9th Cir.2007). Medical marijuana consumption does not meet the demanding burden for a substan- *842 five due-process right because it is not so fundamental as to be “implicit in the concept of ordered liberty.” Id. at 866 (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 188 L.Ed.2d 772 (1997)). Mr. Faasuamalie argues that a “new consensus” has emerged regarding the liberty interest of medical marijuana since Raich, but, of the eight states in the Ninth Circuit that have enacted medical marijuana legislation, seven did so before Raich. Mr. Faasuamalie’s substantive due-process argument fails and the District Court did not abuse its discretion. Finally, Mr. Faasuamalie urges that the violation of probation punished his indigence, in violation of Bearden v. Georgia, 461 U.S. 660, 108 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Unlike the releasee in Bear-den whose probation was revoked for involuntary failure to pay restitution, Mr. Faasuamalie’s violation was not for his involuntary indigence but for his voluntary consumption of marijuana. Further, Bear-den protects only against revocation -of probation, not modification of conditions that are not punitive. See United States v. Jackson, 189 F.3d at 824 (drug testing is not a punishment but a “means to further ... rehabilitative goals of sentencing”). Accordingly, the district judge did not abuse his discretion when he denied the motion to dismiss the violation or terminate probation. AFFIRMED. Footnotes [***] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.