United States v. Tulloch

United States Court of Appeals
For the First Circuit

No. 02-1749
UNITED STATES,

Appellee,

v.

MESFIN HAILE TULLOCH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

____________________

No. 02-2410
UNITED STATES,

Appellee,

v.

HIGINIO ALEJANDRO CASTILLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Lynch and Lipez,
Circuit Judges.
 David Abraham Silverman on brief for appellant Tulloch.
Bruce M. Merrill on brief for appellant Castillo.
Michael J. Sullivan, United States Attorney, and Timothy Q.
Feeley, Assistant U.S. Attorney, on Motion for Summary Disposition
for appellee.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa,
Assistant U.S. Attorney, and Sonia I. Torres-Pabón, Assistant U.S.
Attorney, on brief for appellee.

August 12, 2004
 Per Curiam. These appeals raise ongoing issues

pertaining to supervised release conditions that were first

addressed in this circuit in United States v. Melendez-Santana, 353

F.3d 93 (1st Cir. 2003). In this opinion, we hold that a mandatory

drug testing condition may be included in the written sentencing

judgment without having been mentioned at sentencing. We also hold

that the standard supervised release conditions set out in the

United States Sentencing Guidelines may be adopted by reference at

the sentencing hearing.

I. Background

In separate criminal proceedings, Higinio Alejandro-

Castillo ("Castillo") and Mesfin Haile Tulloch ("Tulloch") pled

guilty to entering or attempting to reenter the United States in

violation of 8 U.S.C. § 1326(a) and (b)(2). They were sentenced to

terms of imprisonment and three-year terms of supervised release.

On appeal, each of them contends that the sentencing court

improperly delegated sentencing authority to the probation officer

by allowing the officer to determine how many drug tests were

required during their terms on supervision. See Melendez-Santana,

353 F.3d at 106 (holding that 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"). They also contend that

the court included supervised release conditions in the written

judgments that were not mentioned specifically at the sentencing

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hearings, in violation of their right to be present at sentencing.

See id. at 99-100 (explaining this constitutional and statutory

right). To the extent appellants could have raised their present

claims of error at their respective sentencing proceedings, but did

not, we review those claims for plain error; otherwise, our review

is for abuse of discretion. Id. at 102, 107 n.14.

II. The Claims

A. Delegation

At Castillo's sentencing hearing, the court made no

mention of drug testing. Its written judgment included a

supervised release condition requiring him to submit to one drug

test within 15 days of release from imprisonment "and thereafter as

required by the US Probation Officer." In Tulloch's case, the

court ordered him at sentencing to submit to three "periodic drug

tests," but made no reference to the probation officer. Its

written judgment ordered one drug test within the first 15 days

after release and "at least two periodic drug tests thereafter, as

directed by the probation officer."

Appellants assert that the written conditions improperly

delegated each court's sentencing authority by allowing the

probation officer to determine the maximum number of drug tests.

We agree. In each case, the sentencing court essentially "vest[ed]

the probation officer with the discretion to order an unlimited

number of drug tests," which it could not do. Melendez-Santana,

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353 F.3d at 103. On remand, we direct the respective courts to

strike the improper delegation from their written judgments.

Tulloch makes an additional delegation claim. He

contends that the court impermissibly allowed the probation officer

to determine the timing of the drug tests. We reject this claim.

As our previous cases indicate, the scheduling of tests to ensure

compliance with supervised release conditions is an administrative

task that probation officers lawfully may perform. See United

States v. York, 357 F.3d 14, 21-22 (1st Cir. 2004) (sustaining

condition ordering "periodic" polygraph examinations); see also

Melendez-Santana, 353 F.3d at 103 (expressing doubt that Congress

would expect courts to become involved in scheduling drug tests)

(dictum).

B. Right to be Present

Both appellants assert a violation of their right to be

present at sentencing. Castillo complains that the drug testing

condition was never mentioned at his sentencing hearing.1 Tulloch

1
The government agrees that Castillo's right to be present was
violated, raising the question whether there is anything left for
this court to do. We conclude that we may, and should, address the
issue, and we reach a different conclusion than the parties. See
Computervision Corp. & Subsid. v. Commissioner, 164 F.3d 73, 75
(1st Cir. 1999) (stating that the decision whether to address
conceded issues is a "prudential" one and describing the pertinent
considerations). Given the widespread use of boilerplate
sentencing judgment forms, which often recite conditions not
specifically mentioned at sentencing, the issues presented by these
appeals will be recurrent ones. Addressing them now will provide
guidance to district courts and criminal defendants alike.
Moreover, these issues are not technical or complex, and they have

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objects to the standard conditions contained in his written

judgment on the ground that the district court had only generally

referenced them at sentencing.2 To succeed on appeal, appellants

must show that the challenged written conditions "conflict in a

material way" with their oral sentences. Melendez-Santana, 353

F.3d at 100. We conclude that there is no material conflict

between appellants' oral sentences imposing terms of supervised

release and the written conditions they challenge. We turn first

to Castillo's claim.

1. Castillo

In theory, requiring repeated drug testing could

conceivably inflict a significant burden on supervisees.

Therefore, if a drug testing condition is not mentioned at

sentencing, defendants might reasonably claim that their right to

be present has been violated. Context is critical, however. In

this case, as our discussion below indicates, the written judgment

simply imposes the same burden on Castillo as his oral sentence

directing him to serve a supervised release term. Therefore, there

is no material conflict between his written and oral sentences.

See id., 353 F.3d at 100 (suggesting that a material conflict

been explored carefully in the decisions cited herein, making
adversary briefing less critical than it otherwise might be.
2
The district court told Tulloch that during the supervised
release term "you will comply with the standard conditions as set
forth in the guidelines[.]" The written judgment included fourteen
of the fifteen standard conditions listed in the Guidelines.

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exists where the written sentence imposes a "potentially

significant new burden on the Defendant").

Castillo was sentenced in 2002, and drug testing has been

a mandatory condition of supervision since 1994. In that year, 18

U.S.C. § 3583(d) was amended to require drug testing as an explicit

condition for defendants on supervised release. 18 U.S.C.A. §

3583(d) (2000) (historical and statutory notes); Melendez-Santana,

353 F.3d at 104. In 1997, the United States Sentencing Guidelines

were amended accordingly, referencing the mandatory drug testing

requirement for the first time. U.S. Sentencing Guidelines Manual

§ 5D1.3(a)(4) (1997); see 18 U.S.C.A. Fed. Sent. Guidelines (2004

Supp. Pamphlet) (historical notes, 1997 Amendments); United States

v. Jackson, 189 F.3d 820, 822 (9th Cir. 1999) (noting that, prior

to the 1997 amendment, courts had discretion to impose a drug

testing condition under § 5D1.3(b)). Since their amendment, §

3583(d) and Guideline § 5D1.3(a)(4) have provided defendants facing

supervised release terms with constructive notice that they will be

required to undergo drug testing during their supervised release

terms. See United States v. Paul, 274 F.3d 155, 172 (5th Cir.

2001) (holding that the Guidelines give constructive notice of

mandatory sex offender registration condition), cert. denied, 535

U.S. 1002 (2002); United States v. Brown, 235 F.3d 2, 4 (1st Cir.

2000) (similar; special condition). The statute and guideline also

indicate that the only prerequisite for the drug testing condition

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is that the court impose a supervised release term at sentencing,

as it did in this case. Before he was sentenced, moreover,

Castillo knew that he would receive a supervised release term and

would be subject to certain conditions during that term. At his

plea hearing, he was told about the supervised release term, that

certain conditions would apply, and that he would be reimprisoned

if he violated them. He knew further that his sentence would be

determined under the Guidelines.

At the sentencing hearing, the court imposed a three-year

term of supervised release. It mentioned some of the applicable

conditions, but not the mandatory drug testing condition. In its

written judgment, the court ordered drug testing. It did not check

the box on the judgment form that courts use to suspend or

ameliorate the condition in particular cases.3 Thus, the failure

to mention drug testing at sentencing appears to have been

inadvertent.

On these facts, we believe that the reasoning in United

States v. Truscello, 168 F.3d 61 (2d Cir. 1999), applies. See also

United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003)

3
Section 3583(d) provides that the drug testing condition "may
be ameliorated or suspended by the court as provided in section
3563(a)(4) [sic]." The intended cross-reference is to 18 U.S.C. §
3563(a)(5), which provides that the mandatory drug testing
condition applicable to probationers may be ameliorated or
suspended by the court "for any individual defendant if the
defendant's presentence report indicates a low risk of future
substance abuse by the defendant."

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(per curiam) (finding the reasoning in Truscello to be persuasive).

In Truscello, the Second Circuit considered whether the sentencing

court's failure to mention any conditions at all at sentencing

after imposing a term of supervised release precluded it from

subsequently including certain mandatory and standard conditions in

its written judgment. The court of appeals held that it did not

because there was no "actual" or "real inconsistency" between the

orally imposed term of supervised release and the written judgment

specifying the conditions applicable to such term.4 As it

explained, implicit in the very nature of supervision is that

conditions are placed on the supervised defendant; thus, in its

view, the district court's written judgment merely clarified the

ambiguity in the oral sentence. Truscello, 168 F.3d at 63.

Castillo contends that he did not have an opportunity at

sentencing to object to the drug testing condition. He claims that

it was not warranted because he had not used controlled substances

for years and because the court did not find him to be at risk for

future drug abuse. As noted above, however, only one fact is

necessary to trigger application of the drug testing condition --

that the district court order a term of supervised release, as it

4
In evaluating whether a written condition violates a
defendant's right to be present, the Second Circuit looks for a
"direct" conflict with the oral sentence, Truscello, 168 F.3d at
62, whereas we look for a "material" conflict, Melendez-Santana,
353 F.3d at 100. If there is any difference in these standards, it
does not affect disposition of these cases.

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did here at the sentencing hearing. If, in order to alter his

otherwise applicable sentence, Castillo had wished to take

advantage of the statutory provision allowing amelioration, he

should have raised that issue with the court at sentencing and made

the appropriate factual argument.

In sum, we sustain the written drug testing condition (as

amended, see footnote 1 above) because the burden it imposes is

consistent with the burden mandated by § 3583(d), of which Castillo

had constructive notice. We might reach a different result if a

sentencing court were to impose a written drug testing condition,

not announced at the sentencing hearing, which orders more drug

tests than the minimum three required by the statute. The statute

leaves the imposition of additional tests to the discretion of the

district court. Ordering drug tests beyond the statutory minimum

could conceivably impose a "potentially significant new burden" on

a defendant, Melendez-Santana, 353 F.3d at 100, and defendants

might be able to make some argument at sentencing that could

influence the court's determination. However, we need not decide

that matter now.

2. Tulloch

At sentencing, the district court imposed a term of

supervised release on Tulloch and described various supervised

release conditions. Among other things, it directed him to "comply

with the standard conditions as set forth in the guidelines," but

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it did not describe them in detail. The written judgment included

conditions substantially similar to the first fourteen of the

fifteen standard conditions set out in the Guidelines.5 See U.S.

Sentencing Guidelines Manual § 5D1.3(c)(1)-(14) (2001). Tulloch

contends that the court's general reference to the standard

conditions failed adequately to notify him which conditions

actually would be imposed, thus depriving him of his opportunity to

object to them. Moreover, he claims that allowing adoption by

reference permits sentencing courts to indiscriminately impose

standard conditions on defendants.

For a variety of reasons, we disagree. As with Castillo,

Tulloch knew before he was sentenced that he faced a term of

supervised release, that conditions would apply during that term,

and that the Guidelines controlled his sentencing. The Guidelines

flatly recommend the standard conditions, without qualification or

prerequisite (other than that a term of supervised release be

imposed). U.S.S.G. § 5D1.3(c) ("The following 'standard'

conditions are recommended for supervised release.") At

sentencing, moreover, the court made clear that the standard

5
The fifteenth condition was not applicable because at
sentencing the court ordered "immediate" payment of the mandatory
special assessment. The omitted guideline, § 5D1.3(c)(15), imposes
a notification requirement on released defendants who have not yet
paid their special assessments.

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Guideline conditions would apply,6 and the written judgment imposed

all that were applicable. Thus, the court's oral and written

sentences were entirely consistent: they imposed the very same

burdens on Tulloch. Indeed, Tulloch does not complain that the

written conditions are more onerous, and he does not object to any

particular condition; his objection seems entirely theoretical.

But we see no potential for abuse in allowing courts to streamline

sentencing proceedings by incorporating by reference such well-

known, commonly used conditions of supervised release. See Torres-

Aguilar, 352 F.3d at 938; Truscello, 168 F.3d at 63.7 And, in

other contexts, we have allowed incorporation by reference at

sentencing. See United States v. Tavano, 12 F.3d 301, 307 (1st

Cir. 1993) ("As a general rule, a trial court lawfully may make

implicit findings with regard to sentencing matters, incorporating

6
If Tulloch had desired additional clarification, he easily
could have asked for it at the sentencing hearing.
7
Indeed, as Truscello indicates, standard conditions either
impose requirements essential to the basic administration of the
supervised release system, or regulate other matters necessary to
effect the purpose of supervised release. 168 F.3d at 63; see
Melendez-Santana, 353 F.3d at 96 (characterizing the standard
conditions as generally involving the defendant's responsibilities
to the probation officer or rehabilitative requirements). They are
so uniformly imposed that they have become boilerplate in federal
courts. Truscello, 168 F.3d at 63. Consequently, we doubt that
defendants can legitimately claim surprise or raise right-to-be-
present claims when the standard conditions set out in the
Guidelines are included in a written judgment without having been
mentioned at the sentencing hearing.

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by reference suitably detailed suggestions limned in the PSI Report

or advanced by a party.") (concerning drug quantity determination).

We direct the district courts in these appeals to strike

the improper delegation to the probation officer from their written

judgments. The district court in Appeal No. 02-2410 is ordered to

amend the drug testing condition to provide for the minimum number

of drug tests mandated in 18 U.S.C. § 3583(d). In all other

respects, the judgments of conviction and the sentences are

affirmed.

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