*3 6, on December was indicted Stephens CLIFTON, Before: REINHARDT 2000, approxi- importing on one count WEINER, District Judges, and Circuit in viola- marijuana, mately 45.25 kilos of Judge.* 960, and one §§ 952 and of 21 U.S.C. marijuana in- possession count of WEINER, Judge. Senior District distribute, in of 21 U.S.C. violation tent 841(a)(1). count pled guilty He I. on June was sentenced the indictment and day impris- year to one and one appeals the Damon Antonio re- onment, years and three by the district imposed sentence re- A of his condition lease. re- of his upon revocation stated: lease supervised release Stephens was on lease. any from shall refrain The defendant entry following sentence part of his as substance. use of controlled marijua- unlawful importation guilty plea of a drag to one shall submit The defendant appeal is in this we confront na. The issue im- days of within dele- test improperly the district court whether periodic two at least prisonment and num- gated its determine thereafter, as directed drug tests manner sub- ber, timing, and frequency, officer. testing and treatment stance abuse * by designa- sitting Weiner, Pennsylvania, Senior District R. Charles The Honorable Judge for the tion. Eastern District He was also to “participate in a to a community corrections center where drug and alcohol abuse treatment and he is again subjected to urinalysis testing. counseling program, including urinalysis
testing, as directed the Probation Offi- III. cer,” “program as well as a of mental The district application court’s health directed proba- the Sentencing Guidelines is reviewed de tion officer.” novo. Nielsen, United States v. Stephens was released from custody on Cir.2004). A district court’s September 2001, to Community Cor- decision impose an available condition of Center, rections where he until resided supervised release is typically reviewed for November On 2001. December 6 and abuse of discretion. United States v. *4 14, 2001, again January 22, and on 2 and Johnson, 696, 998 F.2d Cir.1993); 697 2002, he samples submitted urine that test- Gallaher, 784, positive ed for cocaine. The of- (9th Cir.2001) (district 793 court has dis ficer referred relapse him for coun- group impose cretion to condition reasonably re seling. Stephens voluntarily entered lated to factors set out in 18 U.S.C. outpatient drug treatment program, how- 3553(a)).1 § ever he submitted a positive urine while the program. Stephens waived a hearing IV. agreed and to modify the conditions of his The statute governing the mandatory supervised release, agreeing to enter a supervised release, conditions of 18 U.S.C. residential program. modi- The § provides in part that: fication approved by on court The court order, shall also March as an explicit 2002. condition of supervised release, that the 15, 2003, On December Stephens’ proba- defendant refrain any unlawful use petition officer filed a of a controlled substance submit to for a warrant to arrest Stephens. The test within 15 days of release on alleged Stephens violated supervised release and 2 period- at least supervised his release submitting four (as ic drug tests thereafter determined dirty samples (cocaine), urine failed to sub- court) by the for use of a controlled mit samples urine occasions, on four other substance. The condition stated in the changed his notification, without residence preceding sentence be ameliorated report, failed to and failed to submit or suspended by the court provided monthly supervision report. He ar- 3563(a)(4). section rested on December 2003. added). (emphasis The sentencing guide- dismissed the allegations first two (regard- provision line governing mandatory condi- ing the urine samples) sentenced Ste- release, tions supervised U.S.S.G. to four phens months in custody and two 5D1.3(a)(4), § similarly requires that: years supervised release on the remaining allegations. The court reimposed the the defendant shall any refrain from un- special same conditions at issue. lawful use of a controlled substance and was released from custody on June submit to one drug test within 15 days 1. Where object the defendant fails to preserved illegality Stevens the issue of the condition, supervised release our review for release in the dis- conditions plain Rearden, error. United States v. trict court. (9th Cir.2003). Here, however, F.3d and con- person’s conduct two informed and at least
of release (as bringing about dition, deter- person thereafter aid the periodic court) condition, a con- for use of by the conduct and mined in his improvements stat- substance, the condition trolled of such supervision for the responsible ameliorated paragraph ed in this concerning the keep informed persons, indi- any by the court suspended or any conduct, compliance with condition and pre- if the defendant’s vidual defendant immediately probation, condition infor- reliable or other report sentence also, court); see report any violation risk of future a low indicates mation (authorizing 18 U.S.C. defendant.... by the abuse substance person or probationer arrest a officer to addition, added). In (emphasis Id. release, whom 5D1.3(d)(4) recommends U.S.S.G. probable cause believe officer has to believe if it has reason of his a condition violated add as drugs, an abuser of offender is release). “a special condition par- defendant to requiring condition of labor between division by the approved ticipate in a office, re and the district court for sub- Office Probation United States *5 treatment, and testing, drug drug garding may abuse, include program which stance release, has of other conditions the defen- whether determine testing to decisions, by subject of several been the drugs or use of to the reverted dant has circuits. of our sister this court and several alcohol.” along has, developed large, The law Complementing makes that, where principle given Congress has given it defendant of whether a the determination statutory authori- officers broad (or, condition, and how by a abide must a and to enforce ty to offenders supervise act specific condition involves when the of and conditions sentencing court’s terms times) many testing, how as such See, 18 probation. supervised release and condi subjected to the will defendant alia that inter (providing 3603 to the tion, delegate permissible it is proba- shall instruct probation officer of where officer details of supervised release person on tioner or the condition will be satisfied.2 court, keep when by the specified the conditions 8, (1st Cir.2004) (giving probation 10-11 drug testing include United F.3d involving 2. Cases 502, (7th Bonanno, 511 discretion to order unlimited F.3d States 146 officer v. Cir.1998) allowing delegation; which (drug testing improper order is an tests urinalysis "at timing of the defendants submit to determine probation officer proba- of the task). .. within the discretion random permissible administrative tests parameters of beyond the tion officer” involving treatment in- mental health Cases gave the statute and release 1073, Kent, F.3d v. 209 United States clude in the discretion probation officer too much Cir.2000) (court's if order 1079 order); Unit- management of the necessary” probation counseling "becomes 93, Melendez-Santana, 353 F.3d ed v. may defendant whether determine officer (1st Cir.2003) (while not be- courts need 103 with Arti- participate, was inconsistent must scheduling as such come details involved judicial is a func- punishment III because cle tests, the re- Congress assigned the courts tion, the court guidelines state that and the stating sponsibility the maximum number of condition); v. United States may impose that range; performed or to set a to be Cir.2001) Peterson, (2nd (spe- 85 248 F.3d they may vest officers with not requiring condition cial unlimited number order an discretion "only Tulloch, counseling directed to if tests); offender 380 sexual v. and United States
881
Pruden,
er,”
impose
courts
on permitting
United
limitation
398 F.3d
(3d
questions
Cir.2005),
officer to determine
250
since
our
“[u]nder
con
such as
manner
which a defendant
system
stitutional
right
to ...
impose
restitution,
pay
will
his
whether
punishment
test-
provided by
judicial
law is
occur,
States,
ing will
or to
parte
Ex
determine the ultimate
..."
United
242 U.S.
tests,
27, 41-42,
upon
(1916).
is based
37 S.Ct.
whether treatment B. inclu order’s required. Congress’s inclusion in comply” imposed of the words “shall sion provision, release pro and treatment mandatory treatment paren testing requirement and merely delegating while urinalysis, gram by the provision, thetical “as determined arranging details the administrative court,” provision as its as well officer. No dis program the testing condition be “ameliorat subject given cretion court,” suspended by the is without ed or perform than officer, other question plain expression of its intent choosing ap tasks of the ministerial only that courts themselves determine facilitating Ste propriate tested dur whether the defendant will be Thus, was no phens’ there attendance. release, the maximum ing judicial power Article III re delegation of By using tests as well. number of decision of whether garding primary order,” Congress has re words “shall undergo treatment and Stephens would quired those *7 include program would that the treatment drug subjected to “at three be least” urinalysis. administered tests. The first must be days of At least fifteen release. within VI. mandated, are also two tests additional subordinate, statutory That leaves the judge’s left it to district Congress the district court erred issues of whether testing, require to even more discretion (1) in- failing specify the number that no specifically or to find (2) tests, drug as well as treatment at all. needed of non-treatment maximum number would Stephens to which be tests hold- agree with the First Circuit’s to submit. Tulloch, ings in Melendez-Santana statute, guide- with the together that the
A.
line, clearly requires that
not
officer,
statute,
the maximum
construing
In
non-treatment-program drug
number of
objective
intent
court’s
ascertain the
subject-
may
be
tests which defendant
enacting it and
effect
Congress
give
c.
conditional minimum
Congress
eel.
set the
assigning
responsi-
while
to the courts the
hand,
On the other
Congress has not
bility
stating
the maximum number of’
required that
the courts micro-manage
performed
range
tests
be
or to set a
programs by
treatment
setting a
permissible
tests.
maximum number of in-treatment
tests.
The district court’s
or
specifies
Where
district court
that the
der,
incanting
while
most of the words of
defendant shall participate in a drug treat-
statute,
failed to abide
final
its
program, may
ment
it
properly delegate to
requirement that the court itself determine
officer the responsibility for
the maximum
number of
tests.
It
selecting
program.
treat-
Stephens
ordered that
submit to the fif
professionals
then
responsi-
have the
day drug
teen
test as well as “at least two
bility
design
treatment,
course of
thereafter,
periodic drug tests
as directed
including
frequency
of in-testing,
officer.” Under the stat
ensure that
the treatment
is effective.
ute, it was for the district court to deter
requirement
3563(b)(9),
incorpo-
number,
mine the maximum
not for the
rated
reference into
that the
probation officer
Having
to direct.
deter
specified
court,”
treatment be
“by the
number,
mined that
the court could have
does not
the district court itself
left it
to the
officer to direct the
specify the details of the treatment. As
scheduling and other details of the test.
we stated in the context of psychological
But probation
not be vested
offender,
treatment
for a sex
“the court
with unlimited discretion to
order
cannot
expected
be
to design
particu-
given
very
real consequences that
larities of a
program.
treatment
That the
Where,
here,
follow therefrom.
court allowed a therapist to do so does not
probation officer can of his own accord
mean the court delegated its authority to
test,
order a
subjecting
he is
the defendant
impose conditions of release.” United
possibility
pun
further criminal
Fellows,
States v.
We find while the district court (9th Cir.2003) minimum, (giving probation officer au itself determined the number of thority to select for sex tests to would *8 offender was not improper; that is what submit, to the court erred when it to failed do; probation they are state the mandated maximum of number non-treat- supervise to drug probation tests the offenders and to enforce a officer could impose. delegation This sentencing of the court’s court’s terms and conditions of statutory duty impermissible. probation);3 release and but government 3. argues While the empowered anything that Rearden officer is to do more arguably support could the sentencing notion that the than the court's decision enforce probation may officer drug testing. Congress decide the extent of the extent of As drug testing, nothing non-treatment clearly provided in Rear- has in the statutes den, imply can be read to that sentencing the Guidelines that it is the court’s pro- for the testing question is a Williams, program F.3d v. see United to Cir.2004) administering program (9th (limiting applica the the fessionals performance in the Rearden where determine properly tion of functions, defen requirement which condition involves treatment ordinary their drugs; district psychotropic take Stephens’ dant non-penological. entirely are finding specific explicit, must make participate that he sentence itself 3583(d)(2)); § under that as a program and drug cf. treatment Cir.1987) 176, 178-79 F.2d Duff, 831 to ensure he be tested program part in a pre- (holding that a Having deter- it. compliance with to order power had the Guidelines ease program drug treatment mined that the even drug testing to to submit defendant improper, it was not testing, would include imposed explicitly not court had when the Fellows, the permit to for the court under condition).4 such officer to select the professionals here, drug not does to the treatment Similarly the court allow im to responsibility “particularities [the] the shirk its to improperly determine merely of release the pose conditions treatment.” professionals treatment allowing drug provision drug testing vacate the treatment, where design the course to case to the district court and remand this required that the specifically court has the maximum it determine so that has testing. Congress include the defen- drug number of tests which testing done between opted to differentiate supervised re- submit while on dant must mandatory condition of aas shall not be The defendant lease.5 in the course testing done release and three beyond the any drug tests to take Only for treatment. special condition the district required by the statute unless must the district former case made such determination. court has of tests. specify the maximum PART; IN VACATED SENTENCE testing penologi is the Only in the former REMANDED. frequency cal in nature. tests, holding our dissent also criticizes we con- 5. The the number role decide sentencing only ground courts that the that it invites to hold strue Rearden ability "sky- details of to devise the officer has number of maximum made the testing, only after the court has high,” delegating in effect many” determi- and "how initial "whether” authority as exactly same here. nations. judges would that district court We doubt unprincipled It determinations. make ignores our resolution
4. The
claims
dissent
that, given an offender with serious
well be
Duff,
proba-
binding
precedent
use,
the district
predilections toward
tion officer
number suffi-
court will set
maximum
dis-
testing
ordered
even
never
where
high
give
probation officer flexi-
ciently
However,
easily
is
distin-
trict court.
Duff
ob-
bility
supervising the offender. The
question of
guished.
case considered the
judge may
equally likely. A
district
verse
power
officer had
whether the
Congress has
the discretion
wish
exercise
(1982
Supp.
§
&
III
under 18 U.S.C.
3583(d)
negate
specifically
granted
§
(now
1985),
repealed
Pub.L. No. 98-473
an
during supervised release of
offend-
3603),
Duff to
to order
codified at 18
history use.
In either
er
no
Here,
testing.
submit to non-treatment
event,
key
is that
under
statute
statute,
entirely
we
different
construe
officer,
specifically
forth the
sets
*9
placing the
penological decision of
make
judge
obligation
to determine
of the district
submitting to the tests.
jeopardy of
in
drug
offender
tests.
the number
1987)
CLIFTON,
Judge, concurring
(quotation
in
Circuit
marks omitted and altera-
part
dissenting
part:
and
tion in original). We reasoned that
urinalysis
officer’s use of
to de-
majority
has concluded that a con-
termine whether the
using
defendant was
victed defendant
be
to sub-
illegal drugs was consistent with the condi-
drug testing
drug
mit
within
treat-
law,
tion that
obey
the defendant
made
program imposed by the court as a
probable
it more
that
release,
the defendant would
condition of
in which
drug
successfully complete
case the number of
tests need not be
the probationary pe-
I
by
agree
riod,
the court itself.
with that
and
allowed the
officer to
holding
part
and concur with that
of the
stay informed as to the defendant’s con-
decision.
duct. Accordingly,
pro-
we held that the
bation statute and the general order re-
concluded,
majority
has also
howev-
garding compliance with the
gave
law
er,
permitted
that a
officer is not
probation officer
authority
to determine the maximum number of
drug
testing
that
without further
tests
direction from
defendant if the
testing
convicted
is con-
court. Id. at 178-79.
specified
ducted outside of a
The same
supported
considerations that
program,
even where the
holding
present
are
in this
Diiff
explicitly
testing
specified
ordered
and
Here,
ordered,
case.
the district court
majority
a minimum number of tests. The
release,
conditions of
that the
holds
the maximum number of non-
convicted defendant “not commit another
specified by
tests must be
federal,
crime,”
or local
state
“refrain
the court itself.
I disagree, for reasons of
any unlawful use of a controlled sub-
precedent
policy.
stance,”
“submit to one
test within 15
First,
holding
is inconsistent with
days
imprisonment
of release from
and at
binding precedent, in the form of our deci-
thereafter,”
periodic drug
least two
Duff,
sion United States v.
testing even when the district court had conditions, ance with those not ordered tests as condition of empowered officer was statute to supervised release. observed that the (3) district court methods, had ordered the defendant to use all suitable not incon- obey all laws and that sistent with the conditions specified required by were statute to all “use suit- court, probationer to aid a or a methods, able not inconsistent with the person is un- who imposed by conditions ... supervision, bring der his and to about bring improvements probation- about in [a improvements in his conduct and condi- conduct and “keep er’s] condition” and to tion; concerning
informed the conduct and con- (4) responsible the supervision dition of probationer each under [their] any probationer person super- or a supervision.” (quoting Id. at 178 vised release who is known to be within part of the Federal Proba- district; judicial Act, 3651-56, §§ 18 U.S.C. then in effect repealed effective November *10 statute, § U.S.C.] [18 con- different
(7) concerning the keep informed obligation the sets forth any specifically condition, compliance with duct, the num- ...; to determine judge the district probation condition (10) [*] [*] [*] perform any other duty that ber of statute drug tests.” The is relevant, however, fact of a different only if Duff § In other 3583. has been overruled may designate. the au- words, controlling unless is Duff added). (emphasis § 3603 18 U.S.C. pos- we held thority that supervised structure Although the pre- authority § that is sess under 3655— Duff, the changed since has release statute stripped from § 3603—was served under statute out- the current language of broad by the enactment probation officers officers con- lining the duties at- not even majority § The does 3583. authority that substantive veys the same Nor argument. an tempt to make such statute. predecessor existed under cited with easily, do as was could it so Duff previ- § 3603 with Compare 18 U.S.C. in years ago United just two approval version, as discussed 18 U.S.C. ous Rearden, 608, 619 349 F.3d 178; also at see Duff, in Cir.2003). Smith, F.Supp.2d States v. (D.Ala.1999) § 3603 (relying 18 U.S.C. on Nevertheless, majority that I infer have probation officers to hold that effectively concluded that has Duff and fre- the number power to determine when it enacted by Congress overruled tests). a offi- If quency 3583(d). §of That current version the sen- drug tests when cer can court to order requires the district statute testing as impose tencing court did supervised re- explicit an condition as release, as we held condition of lease, things, that a among other defen- Duff, surely in then days within 15 test dant submit after the require additional can 2 periodic least of release “and at explicitly imposed submission (as by the determined tests thereafter supervised re- requirement as a substance,” court) for use of controlled Thus, was ordered when lease. “may be condition which ameliorated from to refrain a condition of as language court.” That suspended substance unlawful use of controlled all part to the statute as was added drug tests to two or more and to submit and Law Crime Control of the Violent (in ordered within the one test addition to 103-322, Act of Pub.L. Enforcement impris- days after release the first 15 20414(c), effort strengthen onment), was author- by persons use on combat statute, Duff, to use we held ized refers to majority opinion The release. that de- to ensure any suitable means legislative duty give effect to the our Re- that condition. complied fendant with majori- If that at 882. will. Ante and deter- drug tests quiring additional say ty’s goal, highly improbable, it is tests, beyond the many mining how more least, intended that Congress minimum, power properly within proba- of a to curtail the statute officer. require appropriate tion officer to circumstances of ap- testing based cites with majority opinion Duff -- n , release, dismisses individual defendant at and then proval, ante authority we is the identified the observa- which at-n. Duff, ante “(as determined entirely parenthetical “[h]ere, we construe Duff. *11 court)” court to simply required satisfy unnecessary tests require- a minimum number of imposed by establish the majority opinion. It not intend to take tests. did Moreover, this decision creates a false away from a officer or restrict dichotomy drug testing between done ability delegate supervi- of the court to while the convicted defendant on super- officer, sory authority vised release is within a pro- employee judicial an of the who is branch gram drug testing done outside or appointed by and is see 18 completion after the of such a program. 3602(a). U.S.C. has not been su- Duff testing exactly is pur- same. The and it should control our deci- perseded, pose testing same, is exactly the sion here. one is no more penological than the other. Second, emerges the rule that from the Simply because a defendant completed has At decision this case makes little sense. does not mean that sentencing, the time of the district court is longer there is no reason to be concerned many in a position determine how about drug use. Most controlled sub- proper supervi- addictive, stances are and fighting addic- of an individual sion defendant. Nor long-term, life-time, tion is a often battle. expected should the district court be If the risk of being caught by a drug test monitor each defendant’s situation and de- helps person keep supervision during termine the needs drugs, off we do an enormous disservice period of the convicted super- defendant’s restricting ability of a That why vised release. is the court em- to order such a test. We do even ploys probation Today’s officers. decision greater disservice when limit pro- we simply sentencing invites courts ability bation officer’s order test- high maximum larg- number tests —the ing when the officer has actual reason to might est number of tests that suspect that a given lapsed defendant has sought by or officer—thus ef- back into drug use. This new limitation on fectively delegating to a probation ability officer’s exactly authority. majority the same testing surely Congress not what intend- opinion suggests that this would be “un- ed when it required courts to include principled,” ante at 884 n. I think a explicit super- as an condition of apt description more “prudent.” would be vised release. Why should the district judge expect to know more about the at defendant’s needs I respectfully dissent. the time of than the during will office the course of
release, which could begin many years la- comparably
ter? In the rare situation that
a district court determines a defendant use,
poses danger no future expressly
court is authorized to “amelio- suspend[ or drug testing pro-
rate[ ] ]” the provided
vision “as in ... [18 3563(a)(4) That nothing ].” to do propriety probability
with the that dis- generally high
trict courts will order
maximum nontreatment