United States Court of Appeals
For the First Circuit
No. 01-2386
No. 01-2397
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL MELÉNDEZ-SANTANA,
Defendant, Appellant.
APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, Chief U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge,
Carlos Lugo-Fiol for appellant Rafael Meléndez-Santana.
Francisco A. Ojeda-Diez with whom H.S. Garcia, United States
Attorney, and Sonia I. Torres, Assistant United States Attorney,
were on brief, for appellee.
December 24, 2003
__________________
*Of the Northern District of California, sitting by
designation.
LIPEZ, Circuit Judge. This consolidated appeal of two
criminal cases, Appeal Nos. 01-2386 and 01-2397, requires us to
evaluate the validity of certain conditions of supervised release
and the procedures used to impose those conditions. This
evaluation, in turn, requires us to consider the amount of
discretion a sentencing court may delegate to probation officers
and whether a condition that is included in a written sentencing
order but not announced at the sentencing hearing violates a
defendant's constitutional rights.
I.
In Appeal No. 01-2386, the defendant, Rafael Meléndez-
Santana ("Meléndez"), and three other individuals met an undercover
DEA agent and a police informant on August 21, 2000, in a shopping
mall parking lot to purchase twenty-five kilograms of cocaine. The
parties had previously negotiated a sales price of $12,000 per
kilogram for a total of $300,000. Meléndez agreed to finance this
purchase. When Meléndez opened the trunk of his car and showed the
purported sellers a portion of the money, DEA agents arrested him
and his associates. They found a Beretta 9mm pistol in his
possession.
In Appeal No. 01-2397, Meléndez committed the crimes
approximately three months prior to his arrest on the charges
involved in Appeal No. 01-2386. The details regarding this earlier
conduct as reported in the parties' stipulated statement of facts
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are sparse. It appears that Meléndez dropped an individual off at
the airport who was carrying $36,000 in a bag. A search of the van
that Meléndez was driving produced approximately a kilogram of
cocaine, approximately five hundred (500) grams of heroin and
several weapons. The stipulated statement of facts did not
indicate why Meléndez was not arrested at the airport on that day.
On September 21, 2000, a federal grand jury in Puerto
Rico indicted Meléndez on four counts for the August 21 conduct.
The indictment included one count of possession with intent to
distribute more than five kilograms of cocaine, possession of a
firearm in furtherance of a drug trafficking offense, possession of
a firearm by a convicted felon, and aiding and abetting. Meléndez
pled guilty to the drug possession and possession of a firearm in
furtherance of a drug trafficking offense counts on January 23,
2001. On August 21, 2001, the district court sentenced him to a
term of twenty-four months on the first charge and sixty months on
the second. The terms were to be served consecutively. He was
also sentenced to three years of supervised release.
At the end of that sentencing hearing, Meléndez's
attorney advised the court that an information had been filed
against Meléndez in Appeal No. 01-2397, the case involving the
earlier criminal conduct at the airport. In that case, the
government accused him of possession with intent to distribute one
kilogram of cocaine and approximately five hundred grams of heroin.
-3-
Meléndez waived his right to indictment and the preparation of a
Pre-Sentence Report (PSR) and pled guilty. In exchange for his
plea, the parties agreed that he would be held accountable for more
than four hundred grams but less than five hundred grams of
cocaine. He was sentenced during the same hearing to a term of
thirty-seven months of imprisonment, to be served consecutively to
the sentence in Appeal No. 01-2386. He was also sentenced to a
supervised release term of four years.
Meléndez filed a timely appeal from his sentences,
raising a series of challenges to the length of his sentence and to
the terms of his supervised release. After a careful review of the
record, we affirm part of his sentences, vacate other portions and
remand for re-sentencing by the district court.
II.
We begin our analysis with some background information on
the supervised release system. Congress abolished the existing
parole system in the Sentencing Reform Act of 1984, § 212(a)(2), 98
Stat. 1999 (codified at 18 U.S.C. § 3583 (2000)), and replaced it
with a new system of "supervised release." The two systems are
similar in that both allow former inmates to reenter society under
official control. However, under supervised release, courts,
rather than the Parole Commission, are responsible for setting and
enforcing the conditions of release.
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The United States Sentencing Guidelines generally require
courts to impose a term of supervised release to follow every
felony--or when otherwise required by statute--and they give the
courts the option to do so in all other cases. U.S.S.G. § 5D1.1.
These terms normally last one to five years. Id. § 5D1.2(a).
The Guidelines list a series of conditions of supervised
release that fall into three categories: 1) mandatory conditions
that courts must include in every sentencing order; 2) standard
conditions that are recommended but not required; and 3) special
conditions that are not required but can be imposed under certain
circumstances. U.S.S.G. § 5D1.3. The seven mandatory conditions
include basic correctional provisions such as "the defendant shall
not commit another federal, state or local offense," id. §
5D1.3(a)(1), and "the defendant shall not unlawfully possess a
controlled substance," id. § 5D1.3(a)(2). The fifteen standard
conditions generally relate to the defendant's responsibilities
toward his probation officer. See, e.g., id. § 5D1.3(c)(3) ("[T]he
defendant shall answer truthfully all inquiries by the probation
officer and follow the instructions of the probation officer.").
They also include rehabilitative requirements, such as a condition
mandating that the defendant keep a job. Id. § 5D1.3(c)(5).
In addition to the mandatory and standard conditions,
there are twelve "special" conditions listed in Sections 5D1.3(d)
and 5D1.3(e) of the Guidelines. Section 5D1.3(d) consists of seven
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special conditions that are recommended in situations in which
certain predicate facts are present. For example, one provision
bars defendants who have been convicted of felonies or used
dangerous weapons in the course of their crimes from possessing a
firearm or other dangerous weapon. Id. § 5D1.3(d)(1). Other
provisions mandate that the defendants participate in drug and
mental health treatment programs when the court finds that such
treatment is necessary. Id. § 5D1.3(d). Section 5D1.3(e) lists
additional special conditions that "may be appropriate on a
case-by-case basis." These special conditions include a curfew,
home detention and community service requirements. Id. §
5D1.3(e).1
If a released inmate violates the terms of supervised
release, the court may impose serious punishments, up to and
including requiring the violator to serve his release term in
prison. 18 U.S.C. § 3583(e)(3). Under certain circumstances, such
as where the defendant possesses illegal drugs or refuses to comply
1
In addition to the listed conditions, courts can also impose
conditions "to the extent that such conditions (1) are reasonably
related to (A) the nature and circumstances of the offense and the
history and characteristics of the defendant; (B) the need for the
sentence imposed to afford adequate deterrence to criminal conduct;
(C) the need to protect the public from further crimes of the
defendant; and (D) the need to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner; and (2)
involve no greater deprivation of liberty than is reasonably
necessary for the purposes set forth above and are consistent with
any pertinent policy statements issued by the Sentencing
Commission." U.S.S.G. § 5D1.3(b).
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with drug testing requirements, the court must revoke his term of
supervised release and reimprison him. 18 U.S.C. § 3583(g). We
turn now to Meléndez's specific claims.
A. Four Year Supervised Release Term
Meléndez claims--and the government agrees--that the
district court erroneously departed from the United States
Sentencing Guidelines when it sentenced him to a four-year
supervised release term in Appeal No. 01-2397, the case involving
the information and the earlier criminal conduct. We concur.2
Before a court may impose a sentence exceeding the
Guidelines, it "must give prior notice to the defendant of its
intention to impose a term of such an extended duration and must
state on the record the aggravating circumstances that justify the
upward departure." United States v. Matos 328 F.3d 34, 44 (1st
Cir. 2003); see also Burns v. United States, 501 U.S. 129, 138-39
(1991). The government charged Meléndez in an information with
2
Meléndez did not object to this departure at sentencing. In
United States v. Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002),
we held that while we generally review for plain error when a party
fails to object at sentencing, we apply abuse of discretion review
"if the defendant could not reasonably have anticipated the issue
would arise until after the court ruled." Since Cortes-Claudio
could not reasonably have anticipated that the court would depart
from the guidelines, we reviewed that sentence for abuse of
discretion. Id. The same reasoning applies here. In practical
terms, however, the distinction between the two standards of review
is irrelevant to the outcome of this case since we would reach the
same result under plain error review. See, e.g., United States v.
Mangone, 105 F.3d 29, 36 (1st Cir. 1997) (finding plain error when
the sentencing court departed upward without giving prior notice).
-7-
possession with intent to distribute one kilogram of cocaine and
500 grams of heroin in Appeal No. 01-2397. Meléndez waived
indictment, trial, and the preparation of a Pre-sentence Report and
agreed to plead guilty. Under the terms of that plea agreement,
however, the parties stipulated that he would plead guilty to
possession with the intent to distribute at least four hundred but
less than five hundred grams of cocaine.
The original offense for which Meléndez was charged in
the information carried a mandatory four-year term of supervised
release, see 21 U.S.C. § 841(b)(1)(B), but the offense to which he
actually pled guilty only carried a statutory mandatory term of
three years of supervised release. 21 U.S.C. § 841(b)(1)(C). The
sentencing court erroneously imposed the supervised release term
that accompanied the original charge.3 Since the resulting
sentence exceeded the Guidelines for the offense for which he
actually was found guilty, see U.S.S.G. § 5D1.2(a), and since the
court failed to provide advance notice of this departure, we vacate
the four-year supervised release provision in Appeal No. 01-2397.
We also vacate the portion of the judgment that states that
3
Our view that this was merely an oversight is supported by
the thirty-seven month term of imprisonment that the court ordered.
The offense level with which the sentencing judge started matches
the Guidelines level for a crime involving four hundred but less
than five hundred grams of cocaine but it is below the mandatory
minimum sentence for crimes involving five hundred grams or more of
cocaine. See 21 U.S.C. § 841(b)(1)(B) (setting a mandatory minimum
prison sentence of five years for crimes involving five hundred
grams but less than five kilograms of cocaine).
-8-
Meléndez pled guilty to possession with intent to distribute one
kilogram of cocaine and five hundred grams of heroin. As noted,
Meléndez actually pled guilty to possession with intent to
distribute four hundred but less than five hundred grams of
cocaine, and the judgment should be corrected to reflect this
fact.4
B. Consecutive Sentences
Meléndez claims that the district court erroneously
ordered him to serve the sentences in Appeal Nos. 01-2386 and 01-
2397 consecutively. In his view, the convictions should be
considered multiple counts of the same case for sentencing
purposes. He contends that the offenses all involved similar
conduct, that these offenses occurred only three months apart, that
he was not arrested until after he had taken the actions underlying
the charges in both cases, and that both cases were disposed of on
the same day in the same proceeding. On this basis, he argues that
his sentences should run concurrently. See U.S.S.G. § 5G1.2;
United States v. Quiñones, 26 F.3d 213, 217 (1st Cir. 1994)
4
The sentencing court allowed the defendant to waive the
preparation of a separate PSR for this hearing. A report had been
prepared in the proceedings giving rise to Appeal No. 01-2386, and
defense counsel claimed that a new PSR was unnecessary.
Nevertheless, the Guidelines clearly state in a policy statement
that "[t]he defendant may not waive preparation of the presentence
report," U.S.S.G. § 6A1.1. The errors here illustrate the wisdom
of that requirement. With a PSR in hand, the court would have
recognized that the circumstances of the plea did not permit a
four-year supervised release term, and would have entered a
judgment that accurately reflected the terms of this plea.
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(holding that a court may impose consecutive sentences for
multiple-count cases only after following the accepted protocol for
guideline departures).
The government asserts that Meléndez has waived this
claim by failing to present it first to the district court. It
also contends that, in any event, there was no plain error. As it
notes, the court simply followed the parties' recommendation in
their plea agreement by imposing a consecutive sentence in the
second case after first securing Meléndez's confirmation that he
had agreed to the consecutive sentence.5
Although Meléndez acknowledges that he agreed to the
consecutive sentence, he contends that the plea agreement also
stated that he would be sentenced in accordance with the Sentencing
Guidelines and that the sentencing recommendation was in conflict
with the Guidelines. Without case law or other support, he argues
that we should resolve the conflict in favor of the Guidelines.
On these facts, we agree that Meléndez has waived his
claim. We also agree that there was no plain error. The record
shows that Meléndez entered into his plea agreement voluntarily and
knowingly, realizing full well that he would receive the
consecutive sentence that he did. In effect, Meléndez is asking us
5
The agreement stated explicitly that "the appropriate
disposition" of the case was a thirty-seven month term of
imprisonment "to be served consecutively with the sentence imposed
in [Appeal No. 01-2386]." (emphasis in original).
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to relieve him of his obligations under the plea agreement, even
though the government has lived up to its commitments. We decline
to do so.
C. Conditions of Supervised Release
Meléndez claims that the district court's imposition of
conditions of supervised release included a number of procedural
and substantive errors. Specifically, he claims that the court
violated his Sixth Amendment right to be present at his sentencing
by including a special drug treatment condition in the written
sentencing orders without announcing that condition at the
sentencing hearings. He also claims that the drug treatment
provision constituted an impermissible delegation of judicial
authority since it allowed a probation officer to determine whether
he had to undergo treatment. He claims that a provision requiring
him to undergo drug testing also constituted an impermissible
delegation since it allowed the probation officer to decide how
many drug tests he had to undergo. Finally, he claims that the
court abused its discretion by requiring him to provide financial
records to the probation officer, and again violated his Sixth
Amendment rights by not imposing that financial records condition
at one of his hearings. We will review each claim in turn.
1. The Drug Treatment Condition
Meléndez claims that the sentencing court impermissibly
delegated its sentencing authority by allowing a probation officer
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to decide whether he might have to attend drug treatment. The
condition states that if Meléndez tests positive for drugs, "at the
discretion of the probation officer, [he shall] participate in a
substance abuse treatment program arranged and approved by the
probation officer until duly discharged by authorized program
personnel with the approval of the probation officer." He also
claims that since that condition was only included in the written
orders setting forth the terms of supervised release but was never
imposed as a condition at his sentencing hearing, the court
violated his Sixth Amendment right to be present at sentencing.
a. The Right to be Present at the Sentencing Hearing
Defendants have a right, guaranteed by the United States
Constitution and the Federal Rules of Criminal Procedure, to be
present during sentencing. See Fed. R. Crim. P. 43(a) ("[T]he
defendant must be present at . . . sentencing."). The Supreme
Court has stated that the constitutional aspect of this right is
"rooted to a large extent in the Confrontation Clause of the Sixth
Amendment," but that it also derives from the Fifth Amendment's Due
Process Clause. United States v. Gagnon, 470 U.S. 522, 526 (1985).
Although a defendant does not have a right to be present at every
minor stage in a trial, due process concerns are implicated
[w]henever [the defendant's] presence has a
relation, reasonably substantial, to the
fulness of his opportunity to defend against
the charge. . . . [T]he presence of a
defendant is a condition of due process to the
extent that a fair and just hearing would be
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thwarted by his absence, and to that extent
only.
Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108
(1934)). Since the defendant's absence from a sentencing hearing
could threaten his ability to obtain a fair and just hearing on the
important issues of punishment and rehabilitation addressed at such
a hearing, the Court's due process concerns in Gagnon are relevant
to the sentencing stage of a trial. See Thompson v. United States,
495 F.2d 1304, 1306 (1st Cir. 1974) ("[T]he alleged failure of
petitioner to be present at his own sentencing is an error which
. . . affects seriously the fairness, integrity and public
reputation of judicial proceedings.").
As a consequence of the defendant's right to be present
at the sentencing hearing, we have previously stated, in dicta,
that "'[w]here . . . [a] district court's oral expression of its
sentencing rationale varies materially from its subsequent written
expression of that rationale, appellate courts have tended to honor
the former at the expense of the latter.'" United States v. Cali,
87 F.3d 571, 579 (1st Cir. 1996) (quoting dictum in United States
v. Muniz, 49 F.3d 36, 42 n.5 (1st Cir. 1995)). Nearly all of the
other circuits have reached similar conclusions, although there has
been some variation in the exact phrasing of this doctrine. See,
e.g., United States v. DeMartino, 112 F.3d 75, 78 (2d Cir. 1997)
("[I]f there is a variance between the oral pronouncement of
sentence and the written judgment of conviction, the oral sentence
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generally controls."); United States v. Faulks, 201 F.3d 208, 211
(3d Cir. 2000) ("A long line of cases provides that when the two
sentences are in conflict, the oral pronouncement prevails over the
written judgment."); United States v. Morse, 344 F.2d 27, 29 n. 1
(4th Cir. 1965) ("To the extent of any conflict between [a] written
order and [an] oral sentence, the latter is controlling."); United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) ("[W]hen
there is a conflict between a written sentence and an oral
pronouncement, the oral pronouncement controls."); United States v.
Becker, 36 F.3d 708, 710 (7th Cir. 1994)("If an inconsistency
exists between an oral and the later written sentence, the sentence
pronounced from the bench controls."); United States v. Glass, 720
F.2d 21, 22 n.2 (8th Cir. 1983) ("Where an oral sentence and the
written judgment conflict, the oral sentence controls."); United
States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993) ("'In cases
where there is a direct conflict between an unambiguous oral
pronouncement of sentence and the written judgment and commitment,
this [c]ourt has uniformly held that the oral pronouncement, as
correctly reported, must control.'") (quoting United States v.
Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974)); United States
v. Marquez, 337 F.3d 1203, 1207 n.1 (10th Cir. 2003) ("[A]n oral
pronouncement of sentence from the bench controls over other
written language . . . ."). Accordingly, we conclude that where
the conditions of supervised release announced at the sentencing
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hearing conflict in a material way with the conditions of
supervised release in the written sentencing order, the oral
conditions control.
The failure of the sentencing court to announce the drug
treatment condition at the sentencing hearing created a material
conflict between the written and oral sentencing orders. The court
imposed a potentially significant new burden on the Defendant--
permitting a probation officer to order him to attend a residential
treatment program if he failed a drug test--without giving him the
opportunity to object to the condition at the sentencing hearing.
This procedure violated Meléndez's right to be present at
sentencing. We must vacate the drug treatment condition on this
basis alone.
b. Delegation
There is another defect in the drug treatment condition
that we must discuss to avoid future problems. That defect
involves the amount of discretion that the court delegated to the
probation officer to decide whether Meléndez must participate in a
drug treatment program.
Article III of the Constitution vests responsibility for
resolving cases and controversies with the courts. As Justice
Kennedy observed during his tenure on the Ninth Circuit, this
responsibility requires "both the appearance and the reality of
control by Article III judges over the interpretation, declaration,
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and application of federal law" to maintain "the essential,
constitutional role of the judiciary." Pacemaker Diagnostic Clinic
of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir.
1984) (Kennedy, J.). The judiciary's "essential role" can be
eroded just as easily through improvident delegation as through
interference by another branch, id.; therefore, separation of
powers forbids courts from delegating their Article III
responsibilities. However, "'[t]hat general principle does
not . . . prohibit courts from using nonjudicial officers to
support judicial functions, as long as that judicial officer
retains and exercises ultimate responsibility.'" United States v.
Allen, 312 F.3d 512, 515-16 (1st Cir. 2002) (quoting United States
v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995)).
In Allen, we upheld the sentencing court's imposition of
a condition of supervised release that required the defendant to
participate in a mental health treatment program "as directed by
the probation officer." Allen, 312 F.3d at 515. We determined
that the court itself retained ultimate sentencing authority by
requiring the defendant to undergo treatment and that it had merely
delegated "administrative details" to the probation officer. Id.
at 516. In reaching this holding, we contrasted the facts in Allen
with those in United States v. Kent, 209 F.3d 1073 (8th Cir. 2000),
in which the court struck down a condition that allowed the
probation officer to make the ultimate decision regarding whether
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the defendant would have to undergo treatment. Stated simply, the
probation officer in Allen was not deciding whether the defendant
had to attend counseling but how many sessions he had to attend.
See also United States v. Peterson, 248 F.3d 79, 84-85 (2d Cir.
2001) (concluding that delegation would be permissible regarding
scheduling and selection of mental health therapy sessions).
The sentencing court's delegation to the probation
officer of the treatment decision in this case contravenes our
ruling in Allen. The drug treatment condition states that if
Meléndez fails a drug test, he must participate in a treatment
program "at the discretion of the probation officer." Rather than
simply vesting the probation officer with the responsibility for
managing the administrative details of drug treatment, the court
granted the probation officer the authority to decide whether
Meléndez would have to undergo treatment after testing positive for
drugs.6 That treatment decision must be made by the court, either
at the time of sentencing,7 or later in response to a motion by the
6
We consider the determination of the type of program the
defendant must enroll in and when he may be discharged to be
administrative details that may be delegated to the probation
officer.
7
The United States Sentencing Commission treats the imposition
of drug treatment as a special condition of supervised release to
be imposed by the court. See U.S.S.G. § 5D1.3(d)(4) ("If the court
has reason to believe that the defendant is an abuser of narcotics,
other controlled substances or alcohol--[it may include] a
condition requiring the defendant to participate in a program
approved by the United States Probation Office for substance abuse
. . . .").
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probation officer, citing the positive drug test during the period
of supervised release and seeking a change in the conditions of
supervised release.8
2. The Drug Testing Requirement
Meléndez claims that the district court impermissibly
delegated its authority to a probation officer when it allowed the
officer to decide how many drug tests he would be required to
undergo. Since he failed to object to this aspect of his sentence
below, we review for plain error. Allen, 312 F.3d at 514.9
a. The Terms of the Order
The oral and written orders in these appeals conflict
regarding the amount of discretion the court delegated to the
probation officer. The written sentencing orders in both cases
stated: "The defendant shall refrain from any unlawful use of a
controlled substance and shall submit to one drug test within 15
8
Rule 32.1 of the Federal Rules of Criminal Procedure outlines
the steps that a probation officer must take to move for the
modification of a defendant's terms of supervised release following
a suspected violation. In pertinent part, the rule grants the
defendant the right to a hearing before a magistrate judge to
determine if there is probable cause to believe that he violated
the terms of supervised release, Fed. R. Crim. P. 32.1(a) & (b), as
well as the right to a hearing before a court to determine whether
his terms of supervised release should be modified. Fed. R. Crim.
P. 32.1(c).
9
The government and the defendant both framed the issue on
appeal as whether the district court impermissibly delegated the
determination as to the timing and number of drug tests. Neither
party, however, addressed the timing issue. Accordingly, we
address only the issue of whether the court impermissibly delegated
the determination of the number of drug tests.
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days of release on supervised release and at least two (2) periodic
drug tests thereafter, when so requested by the U.S. Probation
Officer." The oral orders did not include the provision requiring
"at least two (2) periodic drug tests therafter." The oral order
in Appeal No. 01-2386 stated: "The defendant shall refrain from
any unlawful use of controlled substances and shall submit to drug
testing within 15 days of release on supervised release and
thereafter whenever so required by the probation officer." The
oral order in 01-2397 was virtually identical. Therefore, pursuant
to the written orders, the probation officer had to require at
least two additional drug tests after the initial drug test within
fifteen days of release; however, under the oral orders, the
probation officer could forego any additional drug tests after the
initial test. Although there is a conflict between the oral and
written orders as to the number of drug tests required, we do not
have to decide if this is a material conflict requiring a ruling
that the oral order controls. See supra Section II.C.1.a. That is
so because both the oral and written orders suffer from the same
delegation infirmity.
b. Delegation
Both a statute and the United States Sentencing
Guidelines require the sentencing court to order that the defendant
"refrain from any unlawful use of a controlled substance and submit
to a drug test within 15 days of release on supervised release and
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at least 2 periodic drug tests thereafter (as determined by the
court) for use of a controlled substance." 18 U.S.C. § 3583(d)
(2000); U.S.S.G. § 5D1.3(a)(4) (emphasis added).10 The court may
only waive this requirement "if the defendant's presentence report
or other reliable sentencing information indicates a low risk of
future substance abuse by the defendant." 18 U.S.C. § 3563(a)(5);
U.S.S.G. § 5D1.3(a)(4). Meléndez claims that the inclusion of the
words "as determined by the court" means that the court, not the
probation officer, must decide how many tests a defendant should be
forced to undergo.
As noted, both the statute and the Guidelines state that
following the initial "drug test within 15 days of release," there
must be "at least 2 periodic drug tests thereafter (as determined
by the court) for use of a controlled substance." 18 U.S.C. §
3583(d) (2000); U.S.S.G. § 5D1.3(a)(4). If there is any ambiguity
in this text, it does not relate to the responsibility of the court
to make the determination referenced in the statute. That
responsibility could not be more explicit. But what is the
determination that the court must make? The determination assigned
to the court could either be the time frame for the two periodic
drug tests mandated by the statute, or the number of additional
10
The Guideline provision refers to release on "probation"
instead of on "supervised release"; however, the provision is
located in Section 5D1.3, which explicitly governs "Conditions of
Supervised Release."
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drug tests to be required beyond the initial drug test within 15
days of release and the two periodic tests required by the statute.
As a matter of language, the phrase "at least" establishes a
minimum and implies that a maximum remains to be determined. As a
matter of common sense, we do not think that Congress would require
courts to become involved in the scheduling of drug tests.
However, Congress could reasonably assign to courts the
responsibility for deciding the maximum number of drug tests to be
performed beyond the minimum of three mandated by Congress. See
United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998)
(holding that "18 U.S.C. § 3583(d) requires that the court
determine the number of drug tests to which the defendants must
submit") (emphasis in original). Indeed, there is symmetry in the
Congressional approach because both the statute and the Guidelines
give the court the authority to waive the testing requirement
completely upon a finding of "a low risk of future substance abuse
by the defendant." 18 U.S.C. § 3563(a)(5); U.S.S.G. § 5D1.3(a)(4).
To respond to concerns about a high risk of future substance abuse,
the court can also establish the maximum number of drug tests to be
performed.
This responsibility does not mean that the court has to
specify the exact number of tests to be performed. Consistent with
the statutory language, it may specify a range, allowing probation
officers to exercise discretion on the number of drug tests to be
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performed within that range. See United States v. Guy, 174 F.3d
859, 862 (7th Cir. 1999) (concluding that a condition requiring the
defendant to submit to "'random drug tests as ordered by the
Probation Office, not to exceed 104 tests per year'" did not
constitute plain error). The court may not, however, vest the
probation officer with the discretion to order an unlimited number
of drug tests.
The government, arguing that this plain text reading of
the statute and Guidelines should not control, requested that we
uphold the condition by following the reasoning of the court in
United States v. Smith, 45 F. Supp. 2d 914 (M.D. Ala. 1999). The
Smith Court evaluated a drug testing condition similar to the one
in this case and rejected the defendant's delegation claim.
The Smith Court rested its holding on three arguments:
1) the Violent Crime Control and Law Enforcement Act of 1994 (the
"1994 Act"), Pub. L. 103-322, which set forth the "(as determined
by the court)" language in Section 3583(d), only used that language
to describe the minimum of three tests that a court must impose
pursuant to the plain language of § 3583(d), and to give courts
discretion to reduce the minimum number of drug tests below three
without requiring courts to set the maximum number of tests; 2)
probation officers had the discretion to order drug tests prior to
the passage of the 1994 Act and nothing in that act manifested
Congress's intention to withdraw that discretion; and 3) limiting
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the probation officers' discretion could limit the number of tests
that a probationer is required to undergo and undermine the
efficiency of the supervised release system.
We frankly find Smith's reading of the statutory language
difficult to follow. The phrase "as determined by the court" is
unnecessary to achieve Congress's evident intent in Section 3583(d)
to require courts, in the ordinary case, to require a minimum of
three drug tests. Remove the language "as determined by the court"
from Section 3583(d) and the requirement that there be a minimum of
three drug tests is still there. If courts, in the exceptional
case, want to disregard the requirement of Section 3583(d) that
three drug tests be performed, and to order fewer or no tests, they
already have that authority pursuant to 18 U.S.C. § 3563(a)(5).11
Again, the "as determined by the court" language in Section 3583(d)
is unnecessary to achieve the purpose attributed to it by the Smith
Court. If this language is unnecessary to impose the requirement
of three drug tests as the norm or to give courts the discretion to
reduce or eliminate that minimum in exceptional cases, the "as
determined by the court" language can only mean that the court is
required to determine the maximum number of drug tests to be
performed beyond the three that are required. Otherwise, the
11
That provision states that the mandatory drug testing
condition "may be ameliorated or suspended by the court for any
individual defendant if the defendant's presentence report or other
reliable sentencing information indicates a low risk of future
substance abuse by the defendant . . . ." 18 U.S.C. § 3563(a)(5).
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language is superfluous. See, e.g., Allende v. Shultz, 845 F.2d
1111, 1117 (1st Cir. 1988) ("'It is the duty of the court to give
effect, if possible, to every clause and word of a statute,
avoiding, if it may be, any construction which implies that the
legislature was ignorant of the meaning of the language it
employed.'") (quoting Montclair v. Ramsdell, 107 U.S. (17 Otto)
147, 152 (1883)).
The Smith Court says that the "as determined by the
court" language gives the court discretion to alter the maximum
number of drug tests but does not require it to do so, leaving
intact the authority of probation officers to determine the maximum
number of drug tests to be performed. This reading simply ignores
the plain language of Section 3583(d), which gives the courts the
responsibility to determine the maximum number of drug tests beyond
three that would be required. Courts cannot fulfill this
Congressionally-assigned responsibility by assigning it to
probation officers. To the extent that the Smith Court makes a
fair policy point that it is impractical to expect courts to decide
years before a defendant is released "exactly how many drug tests
would be required after the defendant's release from prison,"
Smith, 45 F. Supp. 2d. at 918, the authority of courts to set a
range of drug tests to be performed pursuant to the statutory
language meets this practical concern.
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While it is true that, prior to the passage of the 1994
act, probation officers had discretion to order tests independently
of any directive from the court, see Smith, 45 F. Supp. 2d at 917
(noting that "probation officers had broad discretion to administer
drug tests, without specific authorization from the sentencing
court"), we conclude that Congress's refusal to include probation
officers in the section of the 1994 Act that became 18 U.S.C. §
3583(d) manifests its intent to alter the existing practice.
Congress explicitly referred to "the chief probation officer in
each district" in another section of the 1994 Act and conferred
upon those officers the responsibility of establishing a drug
testing program. See Section 20414 (codified at 18 U.S.C. §
3608).12 Congress clearly understood the role of probation officers
in providing for and administering drug programs, yet Congress
included no reference to probation officers in the drug testing
language of 18 U.S.C. 3583(d); instead, it referred only to courts
12
That provision states:
The Director of the Administrative Office of the United
States Courts, in consultation with the Attorney General
and the Secretary of Health and Human Services, shall,
subject to the availability of appropriations, establish
a program of drug testing of Federal offenders on
post-conviction release. The program shall include such
standards and guidelines as the Director may determine
necessary to ensure the reliability and accuracy of the
drug testing programs. In each judicial district the
chief probation officer shall arrange for the drug
testing of defendants on post-conviction release pursuant
to a conviction for a felony or other offense described
in section 3563(a)(4).
18 U.S.C. § 3608 (2000).
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determining the number of drug tests. See Keene Corp. v. United
States, 508 U.S. 200, 208 (1993) ("'[W]here Congress includes
particular language in one section of a statute but omits it in
another . . . [,] it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.'") (citation omitted).
Furthermore, the general statutory provisions in the
Sentencing Reform Act of 1984, P.L. 98-473,§ 212(a)(2), 98 Stat.
2002 (codified at 18 U.S.C. § 3603), relied on by the Smith Court
as evidence that Congress gave probation officers the authority to
require drug tests, were superceded by the more specific provision
in the 1994 Act that explicitly gave that power to courts.
According to the Smith Court, three provisions in the Sentencing
Reform Act grant probation officers authority to determine the
maximum number of drug tests to be performed:
Section 3603 . . . provides that probation
officers shall "keep informed, to the degree
required by the conditions specified by the
sentencing court, as to the conduct and
condition of . . . a person on supervised
release, who is under his supervision," 18
U.S.C.A. § 3603(2), "use all suitable methods,
not inconsistent with the conditions specified
by the court, to aid . . . a person on
supervised release who is under his
supervision, and to bring about improvements
in his conduct and condition," 18 U.S.C.A. §
3603(3), and "keep informed concerning the
conduct, condition, and compliance with any
condition of probation ... of each probationer
under his supervision." 18 U.S.C.A. § 3603(7).
These provisions clearly grant probation
-26-
officers significant discretion in the means
they use to accomplish a court's order.
Smith, 45 F. Supp. 2d at 919. Notably, these responsibilities are
framed in general terms, and none of the cited provisions
explicitly reference drug testing. Moreover, the specific drug
testing language of 18 U.S.C. § 3583(d) post-dates the Sentencing
Reform Act by ten years. See Natural Res. Def. Council, Inc. v.
E.P.A., 824 F.2d 1258, 1278 (1st Cir. 1987) ("[T]he most recent and
more specific Congressional pronouncement will prevail over a
prior, more generalized statute."). We reject the government's
invitation to use the general language of the 1984 act as a
justification for ignoring Section 3583(d)'s plain, explicit text.
To be sure, there is some force to the Smith Court's
concerns about the policy advantages of a supervised release system
that allows probation officers to decide the extent of drug
testing. Legislative history does not reveal why Congress chose to
go in a different direction. But we cannot be faithful to the
Congressional choice if we allow any policy reservations to control
our reading of statutory language. By its plain terms, Section
3583(d) requires courts to determine the maximum number of drug
tests to be performed beyond the statutory minimum of three, with
probation officers permitted to decide the number of tests to be
performed within the range established by the court.13
13
We entertained the possibility in United States v.
Merric, 166 F.3d 406, 409 (1st Cir. 1999) that a court could
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Since we conclude that the sentencing court's drug
satisfy its responsibility under a statutory provision stating
"[t]he length of time over which scheduled [fine] payments will be
made shall be set by the [sentencing] court," 18 U.S.C. §
3572(d)(2), by delegating that responsibility to a probation
officer, see id. ("conceivably, 'set' could include delegation").
However, we rejected that possibility because "it is the inherent
responsibility of the judge to determine matters of punishment and
this includes final authority over all payment matters." Id.
Other courts reviewing similar language have held that Congress's
use of the word "set" precludes delegation. United States v.
McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001) ("We interpret this
statement to require the district court to set a detailed payment
schedule at sentencing."). We do not have to rule out the
possibility that in some statutory settings phrases such as "set by
the court" or "determined by the court" could include delegation to
conclude here that the phrase "as determined by the court" does not
permit delegation. As noted, prior to the enactment of Section
3583(d) as part of the Violent Crime Control and Law Enforcement
Act of 1994, probation officers already had the authority to
establish the maximum number of drug tests to be performed. If
Congress wanted the courts to delegate that responsibility to
probation officers, there was no need for Section 3583(d).
There is an instructive precedent in Congress's enactment in
1996 of the Mandatory Victims Restitution Act. In that act,
Congress amended general pre-existing language when it required
courts to "set" the restitution payment schedule. The Eleventh
Circuit found that amendment to be significant on the delegation
issue:
In contrast, the predecessor statute to the MVRA, the
Victims and Witness Protection Act of 1982, provided that
the court could "require that [the] defendant make
restitution ... within a specified period or in specified
installments," but did not expressly state that the court
must set the terms of repayment in the restitution order.
By contrast, the plain language of the MVRA expressly
precludes delegation of repayment scheduling to the
probation office by providing that "the length of time
over which scheduled payments will be made shall be set
by the court ...." 18 U.S.C. § 3572(d)(2). This new
language has removed any ambiguity that might have
existed in the predecessor statute regarding the
permissibility of delegating authority to determine the
installment schedule.
United States v. Prouty, 303 F.3d 1249, 1254 n.3 (11th Cir. 2002).
-28-
testing condition delegated its sentencing authority in violation
of a clear Congressional mandate, and that this disregard of the
Congressional mandate was plain error, we must vacate the drug
testing provisions in Meléndez's sentences and remand for re-
sentencing.
3. Disclosure of Financial Information
The sentencing court included a special condition in its
written orders that required Meléndez to "provide the U.S.
Probation Officer access to any financial information upon request
and produce evidence to the effect that annual income tax returns
have been duly filed within his place of residence as required by
law." The court did not mention that condition at the first
hearing, Appeal No. 01-2386, but it did mention it at the second.
Meléndez claims that the court erred substantively, since neither
conviction warranted the inclusion of this condition, and
procedurally since it failed to include the condition in the oral
order in Appeal No. 01-2386. We will first evaluate whether the
sentencing court substantively abused its discretion by including
this condition.14 An infirmity there would moot Meléndez's
procedural claim.
a. Substantive Concern
Guideline § 5D1.3(d) states as follows:
14
We are reviewing Meléndez's substantive claim for abuse of
discretion because he did not have the opportunity to object to
this provision in Appeal No. 01-2386.
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The following "special" conditions of
supervised release are recommended in the
circumstances described and, in addition, may
otherwise be appropriate in particular cases:
...
3) Access to Financial Information
If the court imposes an order of restitution,
forfeiture, or notice to victims, or orders
the defendant to pay a fine--a condition
requiring the defendant to provide the
probation officer access to any requested
financial information.
U.S.S.G. § 5D1.3(d)(3).
The court, after taking Meléndez's financial condition
into account, did not include a fine as part of his sentence and
did not order him to pay restitution; therefore, he does not meet
the listed conditions. That does not mean, however, that the court
was not justified in imposing the disclosure requirement. The
Guidelines allow such conditions when they are "appropriate in
particular cases." Id. "A sentencing judge has broad discretion
to impose special conditions of release that are 'reasonably
related' to (1) the defendant's offense, history and
characteristics; (2) the need for adequate deterrence; and (3) the
need to protect the public from further crimes of the defendant."
United States v. Phaneuf 91 F.3d 255, 263 (1st Cir. 1996).
According to the stipulated statement of facts
accompanying the plea agreement in Appeal No. 01-2386, Meléndez was
responsible for financing the purchase of twenty-five kilograms of
cocaine at a cost of $300,000. In Appeal No. 01-2397, the
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passenger he dropped off at the airport was found with $36,000 in
cash in a bag. Forcing Meléndez to provide financial records to
the probation officer would assist the officer in detecting whether
he has returned to his criminal ways. As we recently observed when
we upheld a similar condition imposed under similar circumstances:
The special condition allows the court,
through the probation department, to monitor
the appellant's earnings and identify any
potential disparity between his income and his
lifestyle. Relatedly, it serves to deter the
appellant from engaging in schemes similar to
the crimes of conviction once he is released
from prison by forcing him to account for his
income.
United States v. Mansur-Ramos, 348 F.3d 29, 33 (1st Cir. 2003).
Given the circumstances of this case, we conclude that the district
court's imposition of this condition did not constitute an abuse of
discretion.
b. Right to Be Present at Sentencing
Meléndez also claims that the court violated his right to
be present during sentencing by not including the special financial
disclosure condition in the oral sentencing order for the first
sentence that the court imposed on August 21. Assuming arguendo
that the court's failure to include the disclosure condition in its
oral sentencing order violated Meléndez's right to be present at
sentencing, we conclude that this error was harmless.
The court included the financial disclosure requirement
in its oral sentencing order for Appeal No. 01-2397. Meléndez had
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the opportunity to either object or to provide additional arguments
at that time, but he failed to do so. Given that failure, he would
not have objected if the court noted the same requirement at the
hearing for Appeal No. 01-2386, held immediately prior to the
second sentencing hearing. The court's error, therefore, was
harmless. See Rushen v. Spain, 464 U.S. 114, 119 n.2 (1983)
(noting that "right to be present" claims are subject to harmless
error analysis). Accordingly, we affirm the inclusion of the
special financial disclosure condition in Appeal No. 01-2386.
III.
For the foregoing reasons, we VACATE the supervised
release conditions regarding drug treatment and drug testing in
both appeals as well as the four year supervised release term in
Appeal No. 01-2397; we ORDER modification of the judgment in Appeal
No. 01-2397; we AFFIRM the remainder of the sentences; and we
REMAND for re-sentencing in both appeals consistent with this
opinion.
SO ORDERED.
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