United States Court of Appeals
For the First Circuit
No. 03-1178
UNITED STATES,
Appellee,
v.
BERNARD LEWANDOWSKI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
William S. Smith on Anders brief for appellant.
June 23, 2004
Per Curiam. In this direct criminal appeal, counsel for
the appellant filed a motion to withdraw and a brief under Anders
v. California, 386 U.S. 738 (1967). We grant the motion to
withdraw and affirm appellant's conviction and sentence as provided
herein. We publish our opinion in order to ensure the uniform
disposition of other pending criminal appeals raising substantially
the same issue as this case.1
Appellant Bernard Lewandowski pled guilty to being a
felon in possession of a firearm and was sentenced as an armed
career criminal. The district court imposed a prison term followed
by a term of supervised release. The court also imposed a
special condition of release requiring Lewandowski to participate
in a drug treatment program with periodic drug testing. As the
record indicates, Lewandowski is a long-time heroin addict who
acknowledges that he needs treatment if he is to abstain from
future criminal activity.
In reviewing the record in this case, we found a
potentially troublesome boilerplate condition of supervised release
in the judgment form used by the district court (AO 245B, Rev.
9/00). The condition requires appellant to "submit to one drug
test within 15 days of release from imprisonment and at least two
1
Prior to issuing this opinion, we gave the parties an
opportunity to comment on our approach. Counsel for the appellant
elected not to respond, and the government advised us that it had
no objection.
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periodic tests thereafter."2 Thus, by using this judgment form,
the district court arguably specified only the minimum number of
drug tests -- three -- that Lewandowski was required to undergo
while on supervised release. As we recently held, however, 18
U.S.C. § 3583(d) "requires courts to determine the maximum number
of drug tests to be performed beyond the statutory minimum of
three." United States v. Melendez-Santana, 353 F.3d 93, 106 (1st
Cir. 2003) (emphasis supplied). In that case, we invalidated a
supervised release condition explicitly delegating that
determination to the probation officer. Here, there was no such
explicit delegation, and we do not believe that any such delegation
was intended. But the court's order did not definitively declare
who was to determine the maximum number of drug tests, and,
inasmuch as the probation officer has the responsibility for
monitoring the defendant while on supervised release, counsel
conceivably could argue that there was an implicit delegation to
the probation officer.
There is no need to ask counsel for an advocate's brief,
however, as we may construe the supervised release condition to
avoid any delegation problem. See, e.g., United States v. Schave,
186 F.3d 839, 843-44 (7th Cir. 1999) (adopting limiting
2
We view this condition, which was mandated by 18 U.S.C. §
3583(d), as separate from the special condition of supervised
release that required appellant to attend a treatment program that
included drug testing.
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construction of supervised release condition to avoid
constitutional problems). We construe the condition to cap the
number of drug tests at three, i.e., to state both the maximum and
minimum number of tests. In effect, we read the words "at least"
out of the condition as imposed, so that it requires only three
drug tests during the supervised release term. Our interpretation
does not affect the number of drug tests that may be ordered in
consequence of the treatment program that Lewandowski must attend
while on supervised release. See supra note 2.
As this opinion indicates, district judges using the
boilerplate form at issue here who wish to require more than the
statutory minimum of three drug tests must make that clear at
sentencing. They must either state the maximum number of tests or
describe a suitable range. See Melendez-Santana, 353 F.3d at 103.
In addition, probation officers who monitor supervisees subject to
the drug testing condition we consider here may not require more
than the minimum three tests without obtaining a modification of
the condition under 18 U.S.C. § 3583(e).
Apart from the delegation issue, we have found no other
non-frivolous issue in our review of the record. Accordingly,
counsel may withdraw. See Anders, 386 U.S. at 744 (indicating that
court of appeals may allow counsel to withdraw if the appeal is
"wholly frivolous").
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We grant counsel's motion to withdraw and affirm
appellant's conviction. We affirm appellant's sentence as
construed herein. The appeal is terminated.
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