*1 United States Court of Appeals
For the First Circuit
No. 03-1918
UNITED STATES,
Appellee,
v. JOEL PADILLA, Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Circuit Judge, Campbell, Senior Circuit Judge, and Selya, Circuit Judge.
George F. Gormley and Christie M. Charles on brief for the appellant.
Michael J. Sullivan, United States Attorney, and Virginia M. Vander Jagt, Assistant U.S. Attorney, on brief for appellee. December 23, 2004
*2 Per Curiam. Following the conviction of defendant- appellant Joel Padilla for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), the district court sentenced him to imprisonment and a term of supervised release. On appeal, Padilla advances three claims, one of which has merit and, under existing circuit precedent, justifies modification of his sentence. The other two claims lack merit. We consider the three claims sequentially.
Denial of Motion to Dismiss
Padilla contends that the district court erred in denying
his motion to dismiss on Commerce Clause grounds. That motion was
based on his reading of the decisions in United States v. Lopez,
514 U.S. 549 (1995), and United States v. Emerson, 270 F.3d 203
(5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). We are not
free to revisit the Lopez claim because this court already has
rejected it in prior cases. See, e.g., United States v. Colon
Osorio,
We also reject Padilla's claim that Emerson provides a
basis for dismissal on Commerce Clause grounds. In doing so, we
adopt the rationale of the court that spawned the Emerson decision.
See United States v. Darrington,
Refusal to Give Jury Instruction *3 Padilla claims that the district court abused its discretion when it declined to give a requested instruction addressing whether the gun he possessed — which lacked a firing pin assembly and magazine — was a "firearm" within the meaning of the statute of conviction. See 18 U.S.C. § 921(a)(3) (defining the term). We discern no abuse of discretion.
The short of the matter is that the law amply justifies the instruction actually given by the lower court. See, e.g., United States v. Brown, 117 F.3d 353, 355 (7th Cir. 1997) (construing the corresponding sentencing guideline definition and collecting cases). Padilla has cited no relevant legal authority in support of a contrary position.
Delegation of Sentencing Authority On appeal, Padilla asserts for the first time that the district court erred when it allowed the probation officer to determine the number of drug tests he must undergo during his supervised release term. The government confesses error; it concedes that this was an improper delegation of judicial authority. See United States v. Meléndez-Santana, 353 F.3d 93, 103, 106 (1st Cir. 2003) (construing 18 U.S.C. § 3583(d)). It nonetheless suggests that we need not correct the unpreserved error because it neither constitutes a miscarriage of justice nor seriously affects the integrity of the proceedings.
This argument is foreclosed by our decision in Meléndez-
Santana, in which a panel of this court corrected the same kind of
unpreserved error without conducting the usual plain error review.
See id. at 106 (vacating drug testing condition and remanding for
resentencing because 18 U.S.C. § 3583(d) "requires courts to
determine the maximum number of drug tests to be performed"); see
also Eulitt v. Me. Dep't of Educ.,
In the alternative, the government invites us to limit
the number of drug tests to the minimum (three) required by 18
U.S.C. § 3583(d). To this end, it cites our recent decisions in
United States v. Tulloch,
In Lewandowski, we construed a supervised release condition mandating "at least" three drug tests to require only three tests. See id. There, however, the district court had not expressly delegated to the probation officer the power to decide *5 whether to administer more tests. Id. We nonetheless adopted a limiting construction in order to resolve an ambiguity in the court's order and ensure that it could not be interpreted to contain an implied delegation of such authority. Id.
Tulloch is distinguishable for a different reason.
There, we directed the district court to amend one defendant's
supervised release condition, which mandated only a single drug
test, to conform to the statutory requirement that no fewer than
three tests be performed. See Tulloch,
regard to the other defendant, we instructed the court to conform its written judgment to its previously announced oral judgment (which set the number of drug tests at three). See id. The case at hand does not share the central characteristics of either Lewandowski or Tulloch.
Of course, Padilla has not objected to the government's suggestion that we adopt a limiting construction here, and, conceivably, that might represent a reasonable and efficient way to correct an express misdelegation of this kind. But that judgment should be made on the ground, as it were, by the sentencing court. On this record, which indicates that Padilla regularly used marijuana for some period of time prior to his arrest for the offense of conviction, we prefer to let the sentencing court decide how to rectify the error. Accordingly, we vacate the challenged condition and remand to the district court for further proceedings. *6 If it so chooses, the court may amend its sentencing judgment to require three drug tests or, after holding a new hearing at which Padilla would have the right to appear with counsel, may specify some higher maximum number of drug tests.
We vacate the sentence to the extent it improperly delegates the district court's authority to determine the maximum number of drug tests required during the appellant's supervised release term. We remand to the district court for further action consistent with this opinion. In all other respects, we affirm the conviction and sentence.
— Concurring Opinions Follow —
CAMPBELL, Senior Circuit Judge and SELYA, Circuit Judge, concurring in the judgment. We agree that United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir. 2003), controls the disposition of this case and that, under its principal holding, an improper delegation of the authority to set certain drug-testing conditions occurred. See id. at 106. We do not question the soundness of that holding. We write separately, however, to express our discomfiture with the approach that the Meléndez- Santana panel took in determining what consequences attended the delegation error.
Although the Meléndez-Santana panel gave lip service to
plain error review, it vacated the challenged portion of the
judgment upon the finding of error simpliciter, without undertaking
any further analysis. See id. In so doing, the panel effectively
treated the trial court's mistake as one of "the limited class of
structural errors" that warrant correction regardless of other
considerations. United States v. Cotton,
In our view, that approach — which portends automatic
reversal of every delegation error — is incorrect. A finding of
structural error assumes the existence of a "defect affecting the
framework within which the trial proceeds, rather than simply an
error in the trial process itself." Arizona v. Fulminante, 499
U.S. 279, 310 (1991); see also United States v. Perez-Ruiz, 353
*8
F.3d 1, 17 (1st Cir. 2003). And some (perhaps most) structural
errors deserve careful, individualized attention. The Supreme
Court recently stated that, even with respect to preserved errors,
only "certain structural errors undermining the fairness of a
criminal proceeding as a whole . . . require[] reversal without
regard to the mistake's effect on the proceeding." United States
v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004) (emphasis
supplied). As that passage indicates, the sub-category of
"automatic reversal" errors has been reserved for the most
pervasive and debilitating constitutional deprivations, such as a
total withholding of the right to counsel at trial, a denial of the
right to self-representation at trial, and the specter of a biased
judge presiding over a case. See Fulminante,
In contrast, a delegation error of the kind at issue here
(and in Meléndez-Santana) affects only a single aspect (drug
testing on supervised release) of a single phase (sentencing) of a
criminal proceeding. Such a bevue, although serious, simply does
not belong in the select company of structural errors. Cf. Cotton,
Here, as in Meléndez-Santana, the defendant failed to
object at the time of sentencing to the improper delegation of
judicial authority. Hence, this non-structural error arguably was
waived and, if so, it cannot be resurrected on appeal. See United
States v. Rodriguez,
The plain error standard of review presents a formidable
barrier to a defaulting party. To survive plain error review, a
litigant must demonstrate "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte,
In sum, we deem ourselves bound, on the authority of Meléndez-Santana, to join in the opinion vacating the challenged drug-testing order. Were we at liberty to undertake full-blown plain error review, however, we doubt very much that Padilla could prevail; the drug-testing order here at issue appears neither to affect the defendant's substantial rights nor to impugn the integrity of the proceedings below. [3] Because this is so and because we believe, with all due respect, that Meléndez-Santana is wrongly decided both with regard to its treatment of the delegation error as structural and with regard to its conclusion that such errors warrant automatic reversal, we write separately.
We add, moreover, that the problem we have encountered here is likely to be a recurrent one. Equally as important, the question of which errors are structural and which are not is one of great salience in the criminal law. We would welcome an opportunity to have the full court address this issue and we urge the government to give serious consideration to filing a petition for en banc review. Unless and until this aspect of the Meléndez- Santana decision is corrected, however, we must concur in the judgment automatically vacating the challenged condition and remanding for resentencing.
— Second concurring opinion follows —
TORRUELLA, Circuit Judge, concurring. Although I believe that Meléndez-Santana was correctly decided, I write separately to address some of my brethren's discomfiture about the structural error rationale and plain error review in that case.
As we noted in Meléndez-Santana, "Article III of the
Constitution vests responsibility for resolving cases and
controversies with the courts. . . . [T]his responsibility requires
'both the appearance and the reality of control by Article III
judges over the interpretation, declaration, and application of
federal law' to maintain 'the essential, constitutional role of the
judiciary.'"
Although my brethren agree with Meléndez-Santana's principal holding -- that the district court in that case improperly delegated its authority to set certain drug testing conditions -- they are chagrined by the court's approach. That is, they fault the court for finding "structural error" and for giving "lip service to plain error review . . . without undertaking any further analysis."
However, if my brethren agree with Meléndez-Santana's
holding -- that Section 3583 clearly imposes on the courts the duty
to determine the maximum number of drug tests to be performed --
then the statutory grant to the court must be read as exclusive
because "the imposition of a sentence, including any terms of
probation or supervised release, is a core judicial function."
United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995); see
also Ex parte United States,
Under the same analysis, and contrary to my brethren's
views, I believe that similar "improvident delegation" of a
sentencing decision is plainly erroneous per se. That is, allowing
a federal court to delegate its Article III responsibilities,
especially core sentencing decisions like the one at issue here,
both affects a "defendant's substantial rights" and "seriously
impairs the fairness, integrity, or public reputation of judicial
proceedings." See, e.g., United States v. Pandiello,
688 (7th Cir. 1999) (permitting a judge to delegate authority over
a "core sentencing decision . . . deprives the defendant of a
substantial right and constitutes a serious structural defect
affecting the integrity of the judicial proceedings") (internal
quotation marks omitted); Albro,
In sum, I believe that Meléndez-Santana was correctly decided. Delegating core sentencing functions, such as the one at issue here, erodes the judiciary's role under Article III and, as such, constitutes plain error by violating defendant's substantial rights and affecting the reputation of judicial proceedings.
Notes
[1] Even if the unpreserved delegation error were structural (a proposition that we reject), plain error review would still apply. See Johnson v. United States, 520 U.S. 461, 466 (1997) (holding that Criminal Rule 52(b), requiring the application of plain error analysis to forfeited claims, governs direct appeals from criminal judgments premised upon unpreserved structural errors); United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 47 n.5 (1st Cir. 2004) (relying on Johnson in noting that "[e]ven if this were a structural error, [the defendant] would still not be entitled to 'automatic reversal' because he failed to preserve his objection").
[2] While the Wogan rule admits of a few modest exceptions, see
Williams v. Ashland Eng'g Co.,
[3] On much the same basis, we doubt that the discerned error in Meléndez-Santana could have withstood full-blown application of the test for plain error.