United States v. Padilla

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
 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, 360 F.3d 48, 53 (1st Cir. 2004).

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, 351 F.3d 632, 634 (5th Cir. 2003)

(rejecting Emerson challenge in the context of a section 922(g)(1)

prosecution), cert. denied, 124 S. Ct. 2429 (2004).

Refusal to Give Jury Instruction

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 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.

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 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., 386 F.3d 344, 349 (1st Cir.

2004) (explaining that in a multi-panel circuit, newly constituted

panels are bound by prior panel decisions); United States v. Wogan,

938 F.2d 1446, 1449 (1st Cir. 1991) (same). The fact that there

were multiple errors in Meléndez-Santana, making resentencing

necessary in any event, is not sufficient to distinguish that

decision.

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, 380 F.3d 8, 10 & n.1 (1st Cir. 2004) (per

curiam), and United States v. Lewandowski, 372 F.3d 470, 471 (1st

Cir. 2004) (per curiam). Those decisions are inapposite here, and,

thus, we decline the invitation.

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

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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, 380 F.3d at 10 n.1. With

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.

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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 —

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 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, 535 U.S. 625, 632 (2002)

(internal quotation marks omitted).

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

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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, 499 U.S. at 309-10

(collecting cases). Such errors affect "[t]he entire conduct of

the trial from beginning to end." Id. at 309.

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,

535 U.S. at 632-33 (finding that, in the context of sentencing, a

particular Apprendi error did not sink to the level of a structural

defect); Perez-Ruiz, 353 F.3d at 17 (similar). Because the

delegation error neither infects the criminal proceeding as a whole

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nor implicates its fundamental fairness, such an error is non-

structural. This means that, even when preserved, relief for such

an error must be "tied in some way to prejudicial effect, and the

standard phrased as 'error that affects substantial rights,' used

in [Criminal] Rule 52, has previously been taken to mean error with

a prejudicial effect on the outcome of a judicial proceeding."

Dominguez Benitez, 124 S. Ct. at 2339.

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, 311 F.3d 435, 437 (1st Cir. 2002) ("A party

waives a right when he intentionally relinquishes or abandons

it."). Even were we to take the view most favorable to the

defendant and assume that his procedural default at sentencing was

the result of oversight or inadvertence, the delegation error would

have to be regarded as forfeited and, as such, would engender plain

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error review.1 See id.; United States v. Vazquez-Molina, ___ F.3d

___, ___ (1st Cir. 2004) [No. 03-2655, slip op. at 7-8].

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, 246 F.3d 56, 60 (1st Cir. 2001); accord United

States v. Olano, 507 U.S. 725, 732 (1993). The Meléndez-Santana

panel opted for automatic reversal and abjured any application of

this four-part algorithm. Thus we are constrained by that

precedent to forgo its application here. See United States v.

Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) (explaining that in a

multi-panel circuit, newly constituted panels are bound by prior

panel decisions).2

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., 45 F.3d 588, 592 (1st Cir. 1995),
none applies here.

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 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 —

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.

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 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.'" 353 F.3d at 101 (citing Pacemaker Diagnostic Clinic

of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir.

1984)(Kennedy, J.)). An "improvident delegation" of judicial

authority to a probation officer can erode the judiciary's

"essential role"; thus, separation of powers forbids courts from

delegating their Article III responsibilities. Id. Although this

"general principle does not . . . prohibit courts from using

nonjudicial officers to support judicial functions," courts must

"retain[] and exercise[] ultimate responsibility." Id. (internal

citations omitted). We therefore held that the court improvidently

delegated its judicial function in Meléndez-Santana because,

instead of simply charging the probation officer with managing the

administrative details of defendant's drug treatment, the court

delegated its judicial function of deciding whether defendant had

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to undergo treatment. Id. at 101-02. We also held that given the

clear Congressional mandate of 18 U.S.C. § 3583(d), the court

plainly erred in delegating to the probation officer the discretion

to order an unlimited number of drug tests. That statute "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." Id. at 106.

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, 242 U.S. 27, 41 (1916) (imposition of

punishment is a judicial function); Whitehead v. United States, 155

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F.2d 460, 462 (6th Cir. 1946) ("[f]ixing the terms and conditions

of probation is a judicial act which may not be delegated"), cert.

denied, 329 U.S. 747 (1946). Unlike my brethren, I believe that

delegating core sentencing decisions, like the one at issue here,

infects the criminal proceeding as a whole and implicates its

fundamental fairness. See, e.g., United States v. Mohammad, 53

F.3d 1426, 1439 (7th Cir. 1995) (stating that the delegation of a

"serious sentencing decision from a judicial officer to another

deprives the defendant of a substantial right" and constitutes a

"serious structural defect" affecting the integrity of judicial

proceedings). In the context of determining the manner in which

restitution is to be paid, for example, a majority of our sister

courts have prohibited the delegation of core judicial functions to

probation officers. See United States v. Porter, 41 F.3d 68 (2nd

Cir. 1994) (sentencing court cannot delegate decisions as to the

scheduling and size of restitution installment payments); United

States v. Graham, 72 F.3d 352, 357 (3d Cir. 1995) (district court

"improperly delegated to the probation officer the determination of

the timing of the restitution installment payments"); United States

v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) ("making decisions

about the amount of restitution . . . is a judicial function and

therefore is non-delegable"); United States v. Albro, 32 F.3d 173

(5th Cir. 1994) (although a court is free to receive and consider

recommendations from probation officer, the court itself must

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designate the timing and amount of payments); United States v. Gio,

7 F.3d 1279, 1292-93 (7th Cir. 1993) (district court may not, after

fixing the amount of restitution, delegate ultimate authority for

determining amounts of installments to probation officer); United

States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001) (district

court must set the manner of payments and length of time over which

restitution payments shall be made); United States v. Overholt, 307

F.3d 1231, 1255 (10th Cir. 2002) (delegation to the Bureau of

Prisons and probation officer authority to set payment schedule of

restitution is "improper and constitutes plain error").

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, 184 F.3d 682,

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, 32 F.3d at 174 n. 1 (concluding

that "the unauthorized delegation of sentencing authority from an

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Article III judicial officer to a non-Article III official affects

substantial rights and constitutes plain error" in the context of

restitution payments); Overholt, 307 F.3d at 1255 (holding that

delegation to probation officer "is improper and constitutes plain

error").

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.

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