United States v. Padilla

United States Court of Appeals
For the First Circuit

No. 03-1918

UNITED STATES OF AMERICA,
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

Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.

Christie M. Charles, with whom George F. Gormley and George F.
Gormley, P.C. were on brief, for appellant.
John A. Drennan, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Michael J.
Sullivan, United States Attorney, and Virginia M. Vander Jagt,
Assistant United States Attorney, were on brief, for appellee.

______________________

OPINION EN BANC
______________________

July 25, 2005
 SELYA, Circuit Judge. After a jury convicted defendant-

appellant Joel Padilla on a charge of being a felon in possession

of a firearm, 18 U.S.C. § 922(g)(1), the district court imposed, as

part of his sentence, a term of supervised release. As a condition

of that term, the court ordered that Padilla submit to no fewer

than three drug tests, see 18 U.S.C. § 3583(d), and delegated to

the probation officer the authority to determine the maximum number

of tests to be administered. Padilla lodged no contemporaneous

objection.

On appeal, a panel of this court affirmed Padilla's

conviction but vacated the disputed supervised release condition.

United States v. Padilla, 393 F.3d 256, 259 (1st Cir. 2004)

(Padilla I) (per curiam). The panel concluded that the supervised

release condition, as framed, granted the probation officer

unbridled discretion to determine the maximum number of drug tests

and that, therefore, it constituted an improper delegation of

judicial authority. Id. at 258 (relying on United States v.

Meléndez-Santana, 353 F.3d 93, 103, 106 (1st Cir. 2003)). Despite

the fact that this claim of error was raised for the first time on

appeal, the panel vacated the disputed supervised release condition

and remanded for resentencing without engaging in conventional

plain error review. Id. at 258-59. That decision was dictated by

Meléndez-Santana's treatment of a virtually identical error. See

id. at 258 (citing Meléndez-Santana, 353 F.3d at 106); see also

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United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) ("We

have held, time and again, that in a multi-panel circuit, prior

panel decisions are binding upon newly constituted panels in the

absence of supervening authority sufficient to warrant disregard of

established precedent.").

Two members of the panel advocated that the en banc court

reexamine that portion of the Meléndez-Santana opinion that

required vacation of the disputed supervised release condition

without resort to conventional plain error analysis. See Padilla

I, 393 F.3d at 259, 261 (Campbell and Selya, JJ., concurring).

Subsequently, a majority of the judges of this court in active

service voted, sua sponte, to withdraw the panel opinion in

relevant part and rehear en banc "the questions of whether, to what

extent, and in what manner plain-error review applies to improper

delegations of sentencing authority of the type" that had occurred

in Padilla I. United States v. Padilla, 403 F.3d 780, 780 (1st

Cir. 2005) (Padilla II) (order granting rehearing en banc).

We have received supplemental briefs and heard oral

argument. We now overrule that portion of the panel opinion in

Meléndez-Santana that requires automatic reversal for delegation

errors, hold that conventional plain error principles must be

applied in such cases, proceed to analyze the delegation error here

under those principles, and conclude that despite the delegation

error, Padilla's sentence may stand.

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 I.

Background

In Meléndez-Santana, a panel of this court examined the

scope of the authority that a district court may entrust to a

probation officer with respect to the imposition of drug-testing

conditions during terms of supervised release. By statute:

The court shall . . . order, as an explicit
condition of supervised release, 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 at least 2 periodic drug tests
thereafter (as determined by the court) for
use of a controlled substance.

18 U.S.C. § 3583(d).

In Meléndez-Santana, the district court had delegated to

the probation officer the authority to order, at his discretion,

drug tests beyond the minimum number (three) set by the foregoing

statute. 353 F.3d at 102. On appeal, the panel held that the

statutory clause "as determined by the court" signifies "that the

court, not the probation officer, must decide how many tests a

defendant should be forced to undergo." Id. at 103. The panel

added, however, that:

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
performed within that range.

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Id. Thus, it determined that the district court had erred in

imposing the particular drug-testing condition because, by

"vest[ing] the probation officer with the discretion to order an

unlimited number of drug tests," id., it had improperly delegated

its judicial authority, id. at 106.

The defendant in Meléndez-Santana had failed to raise any

objection to the drug-testing condition before the lower court.

Id. at 102. Although the panel acknowledged that the claimed error

had been forfeited, it did not engage in conventional plain error

analysis but, rather, seemed to treat the delegation error as

requiring automatic reversal. See id. at 106.

The delegation error noted in Meléndez-Santana proved to

be a recurrent one. Padilla's case illustrates the point. The

district court sentenced him to a 110-month incarcerative term,

followed by a three-year supervised release period. At the

disposition hearing, the court delineated the following condition

of supervised release:

He must submit to such drug treatment and
testing as the probation office deems
appropriate. This can go beyond the minimal
one drug test within 15 days of release and
two periodic drugs tests thereafter, but is
designed to permit the probation officer to
make judgments about drug testing in Mr.
Padilla's case and drug treatment if they
believe that it is appropriate.

The court incorporated these instructions into the written

judgment, which stated:

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 The defendant shall participate in a substance
abuse treatment program, including testing, as
directed by the U.S. Probation Officer, and
the defendant shall submit to drug testing as
directed by the U.S. Probation Officer.

United States v. Padilla, No. 1:02-CR-10266 (D. Mass. June 10,

2003) (unpublished).

Padilla did not raise any objection to the drug-testing

condition in the district court. On appeal, however, that error

moved front and center. The panel determined that the sentencing

court, by failing to cap the number of drug tests that the

probation officer could mandate, had violated section 3583(d). See

Padilla I, 393 F.3d at 258. The government, conceding error, urged

the panel to leave the sentence intact on the ground that the error

neither affected Padilla's substantial rights nor impugned the

integrity of the proceedings. The panel concluded that it was

bound by the course adopted in Meléndez-Santana and therefore

rejected the government's argument. Id.

Two members of the panel wrote separately, however, to

"express [their] discomfiture with the approach that the Meléndez-

Santana panel took in determining what consequences attended the

delegation error." Id. at 259 (Campbell and Selya, JJ.,

concurring). These judges noted that the practice of automatically

vacating a release condition because of a delegation error

"effectively treat[s] [such a] mistake as one of 'the limited class

of structural errors' that warrant correction regardless of other

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considerations." Id. (quoting United States v. Cotton, 535 U.S.

625, 632 (2002)). Decrying this approach, the concurring judges

encouraged en banc review so that the full court could consider the

appropriate treatment of unpreserved delegation errors. Id. at

261. In due course, the full court ordered rehearing en banc.

Padilla II, 403 F.3d at 780.

II.

Analysis

Padilla presents two arguments in support of his

importuning that the drug-testing condition must be vacated.

First, he posits that the improper delegation of sentencing

authority is a structural error and, thus, requires automatic

reversal. Second, he maintains that, in all events, the delegation

error satisfies the conventional quadripartite test for plain error

review and, on that basis, entitles him to the requested relief.

The government, for its part, strives to persuade us that no error

occurred. It also argues that unpreserved delegation errors are

not structural and do not require automatic reversal. Finally, it

asserts that any delegation error that may have transpired does not

warrant correction.

We begin by explaining why we rebuff the government's

effort to inject a new issue into the case. We then elucidate the

standard of review, examine the nature of the unpreserved

delegation error, and mull its consequences.

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 A.

Scope of Review

The government belatedly urges that Meléndez-Santana's

principal holding was incorrect because a delegation of the type

involved here does not contravene 18 U.S.C. § 3583(d). We

summarily reject that exhortation as beyond the proper scope of our

review. We briefly explain our rationale.

An appellate court enjoys broad discretionary power to

grant rehearing en banc. See W. Pac. R. Corp. v. W. Pac. R. Co.,

345 U.S. 247, 250 (1953); see also 28 U.S.C. § 46(c). The scope of

en banc review ordinarily is delimited by the order convening the

en banc court. See, e.g., United States v. Councilman, 385 F.3d

793, 793 (1st Cir. 2004) (per curiam) (order granting rehearing en

banc) (requesting that the litigants address specifically defined

issues); United States v. Brown, 263 F.3d 1, 1 (1st Cir. 2001) (per

curiam) (order granting rehearing en banc) (enumerating questions

of specific concern to the court). Here, the order, by describing

the district court's action as an "improper delegation[] of

sentencing authority," Padilla II, 403 F.3d at 780, clearly

indicated that the question of whether a court errs when it imposes

a supervised release condition of the type described in Meléndez-

Santana was beyond the scope of the en banc proceeding and that the

full court would focus on the narrower question of how an

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unpreserved Meléndez-Santana error should be treated on appeal.

See id.

Such a circumscription of the issues to be considered is

well within the discretion of the en banc court. See 16A Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure § 3981.1 (3d ed. 1999 & Supp. 2005) (noting that "the

grant of en banc hearing may be limited in advance to an identified

issue"); see also Asherman v. Meachum, 957 F.2d 978, 984 (2d Cir.

1992) (en banc). The government could have asked us to frame the

issues on rehearing more broadly. It did not do so.

To be sure, the en banc court has discretion to review

all the issues presented by an appeal, even though the order

convening the en banc court indicates a more isthmian focus. Here,

however, the equities militate strongly against taking such an

extraordinary step. After all, the government confessed error in

the district court. See Padilla I, 393 F.3d at 258. Moreover, it

did not seek either panel rehearing or rehearing en banc in

Meléndez-Santana. And, finally, it has conceded Meléndez-Santana

error in a myriad of cases since we handed down the Meléndez-

Santana decision. See, e.g., United States v. Villafane-Jiminez,

___ F.3d ___, ___ (1st Cir. 2005) [Nos. 03-1230, 03-1231, 03-1340,

slip op. at 9]; United States v. Figuereo, 404 F.3d 537, 542 (1st

Cir. 2005). That series of actions makes it unseemly for us to

reexamine Meléndez-Santana's finding of error on an eleventh-hour

-9-
request. Cf. Anderson v. Beatrice Foods Co., 900 F.2d 388, 397

(1st Cir. 1990) (opinion on denial of rehearing) (explaining that

a party generally is not permitted to raise a new issue for first

time on a petition for rehearing); United States v. Hall, 63 F.

472, 475 (1st Cir. 1894) (per curiam) (similar). Because the order

convening the en banc court does not encompass the issue that the

government now seeks to explore, we deem it inappropriate to

consider that issue. Consequently, we will not reexamine the

Meléndez-Santana court's conclusion that section 3583(d) prohibits

a delegation of the type at issue here.

B.

Standard of Review

After imposing sentence (including the now-disputed

supervised release condition), the district court inquired of both

sides whether there was "[a]nything further that we need to take

up" before concluding the proceeding. Although afforded ample

opportunity to do so, Padilla voiced no objection to the drug-

testing condition. That default constrains our inquiry.

A court of appeals typically reviews a sentencing court's

imposition of a condition of supervised release for abuse of

discretion. See United States v. Brown, 235 F.3d 2, 3 (1st Cir.

2000). That standard shifts, however, when "the sentencing court

affords the defendant an opportunity to object to the condition but

the defendant holds his tongue." Id. In such circumstances,

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appellate review is for plain error. See id.; see also United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (explaining

that plain error review applies when a party has forfeited a right

by failing to assert it in a timely manner).

From the defaulting party's perspective, "[t]he plain

error hurdle is high." United States v. Hunnewell, 891 F.2d 955,

956 (1st Cir. 1989). Under that regime, a reviewing court may set

aside a challenged portion of a criminal sentence if, and only if,

the appellant succeeds in showing "(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).

Plain error review is not entirely a judge-made

construct. In the first instance, it derives from Fed. R. Crim. P.

52(b), which provides in pertinent part that "[a] plain error that

affects substantial rights may be considered although it was not

brought to the court's attention." Properly viewed, then, the

plain error test constitutes a mandatory limitation on a federal

appellate court's remedial authority. See United States v. Olano,

507 U.S. 725, 731 (1993) (stating that Rule 52(b) "provides a court

of appeals a limited power to correct errors that were forfeited

because not timely raised in district court").

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 Our authority to notice forfeited errors is hedged by the

doctrinal elements recognized in Olano. See id. at 732. The

appellant must carry the devoir of persuasion as to each of those

four elements. See United States v. Vega Molina, 407 F.3d 511, 521

(1st Cir. 2005). Even if he makes the requisite showing on the

first three elements, a reviewing court retains plenary discretion

not to correct the error if it concludes that the error does not

seriously affect the fairness, integrity, or public reputation of

the judicial proceedings as a whole. Olano, 507 U.S. at 732.

C.

Structural Error

The Supreme Court has recognized the existence of a tiny

class of structural errors — errors that may not be found harmless

under Fed. R. Crim. P. 52(a) because they deprive a criminal

defendant of those basic protections that enable a trial to serve

as a vehicle for reliably determining guilt or innocence. See

Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see also United

States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003). Padilla's

first argument seeks to grasp this slender lifeline. He asserts

that the delegation error here is structural in nature and, thus,

is per se reversible. This assertion is doubly flawed.

In the first place, this is not a structural error case

at all. A structural error is a "defect affecting the framework

within which the trial proceeds, rather than simply an error in the

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trial process itself." Fulminante, 499 U.S. at 310. Unlike a

garden-variety trial error, a structural error "transcends the

criminal process," id. at 311, by depriving a defendant of those

"basic protections [without which] a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or

innocence, and no criminal punishment may be regarded as

fundamentally fair." Rose v. Clark, 478 U.S. 570, 577-78 (1986)

(citation omitted).

The category of structural error has been reserved for a

"very limited class of cases." Johnson v. United States, 520 U.S.

461, 468 (1997). That class includes only the most pervasive and

debilitating errors. Paradigmatic examples are a total withholding

of the right to counsel at trial, Gideon v. Wainwright, 372 U.S.

335, 342-43 (1963), a denial of the right of self-representation at

trial, McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), or the

specter of a biased judge presiding over a case, Tumey v. Ohio, 273

U.S. 510, 535 (1927). A more recent example is the denial of the

right to a jury verdict of guilt beyond a reasonable doubt. See

Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993). The common

denominator is that such errors infect "[t]he entire conduct of the

trial from beginning to end." Fulminante, 499 U.S. at 309.

In contrast, a delegation error of the type at issue here

affects only a single aspect of a single phase of a criminal

proceeding — and a tangential aspect at that. This is hardly the

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stuff of structural error. Compare Sullivan, 508 U.S. at 281

(failing to provide a correct reasonable doubt instruction

"vitiates all the jury's findings" and therefore constitutes

structural error), with Neder v. United States, 527 U.S. 1, 10-11

(1999) (failing to instruct the jury on a single element of an

offense is a non-structural error in part because its impact is

isolated and does not infect the jury's other conclusions). The

delegation error here neither contaminated the proceeding as a

whole nor called into serious question its fundamental fairness.

Given its limited reach, the error is non-structural. Cf., e.g.,

Perez-Ruiz, 353 F.3d at 17 (finding that a sentencing error, in

contravention of the rule in Apprendi v. New Jersey, 530 U.S. 466

(2000), was not a structural error).

In the second place, even if we were to adopt Padilla's

taxonomy and classify the delegation error as structural, that

classification would not aid his cause. In Johnson, the Court

refuted the very premise on which Padilla's "automatic reversal"

assertion rests. There, the appellant argued that her forfeited

challenge fell outside the strictures of Olano because it was

"structural." Johnson, 520 U.S. at 466. Finding that "the

seriousness of the error claimed does not remove consideration of

it from the ambit of the Federal Rules of Criminal Procedure," the

Court held that forfeited errors, even if structural, are subject

to the imperatives of Rule 52(b). Id. We reached the same

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conclusion in United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40,

47 n.5 (1st Cir. 2004).

That ends this aspect of the matter. Creative labeling

does not assist Padilla here. On any view of the record, his claim

of error is properly considered within the confines of plain error

review.1

D.

Plain Error

Padilla's remaining argument is that this error satisfies

the conventional plain error test. Although that test is rigorous,

its first two steps present no problem for Padilla: since

Meléndez-Santana is the law of this circuit, we must regard

delegation of the power to set the maximum number of drug tests as

clear and obvious error. See Meléndez-Santana, 353 F.3d at 103-06.

The error is not that the district court left the probation officer

room to determine the number of drug tests; rather, it is that the

1
The Supreme Court has not yet reached the more sophisticated
question of whether a structural error necessarily affects
substantial rights, thereby automatically satisfying the third
element of the plain error test. See Johnson, 520 U.S. at 469
(declining to address this question); Olano, 507 U.S. at 735
(flagging the issue but declining to consider it). Three courts of
appeals have concluded that structural errors, by their nature,
satisfy the prejudice prong of the plain error test. See United
States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004); United States
v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001); United States v.
David, 83 F.3d 638, 646-47 (4th Cir. 1996). Similarly, this court
has stated that "'structural error' . . . is per se prejudicial."
United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000)
(dictum). Because the claimed error here is not structural in
nature, we need not address that question.

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court failed to limit the delegated discretion by capping that

number. See id. at 103.

The third step of the plain error pavane requires the

appellant to demonstrate that the error affects substantial rights.

Duarte, 246 F.3d at 60. The Olano Court explained that "in most

cases [this phrase] means that the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings." 507 U.S. at 734. Normally, the appellant must

make a particularized showing of prejudicial effect in order to

satisfy this element. See United States v. Dominguez Benitez, 124

S. Ct. 2333, 2339 (2004); Olano, 507 U.S. at 735.

In Dominguez Benitez, the Court discussed the "affecting

substantial rights" element of the plain error test and noted that

the prejudicial effect on the outcome of the proceeding must be

"substantial and injurious." 124 S. Ct. at 2339 (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). In other words, the

proponent — the party asserting plain error — must show "a

reasonable probability that, but for [the error claimed], the

result of the proceeding would have been different." Id.

(alteration in original) (internal quotation marks omitted).

In United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.

2005), this court found the Dominguez Benitez standard applicable

to forfeited sentencing errors. Id. at 78-79. In such cases, the

appellant, in order to satisfy the prejudice prong, must limn

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circumstances indicating a reasonable probability that the trial

court, but for the error, would have imposed a different, more

favorable sentence. Id. at 75. That standard governs here.

The case at hand is peculiar in that we are dealing with

two unknown variables: the limit the district court would have set

on drug tests and the number of tests that the probation officer

will demand. It is, therefore, nearly impossible for Padilla to

show a reasonable probability that he is worse off because the

probation officer, rather than the district court, has the power to

determine the maximum number of drug tests. Under these

circumstances, we do not see how Padilla can demonstrate that, but

for the delegation error, the supervised release condition likely

would have been more favorable to him. This, in turn, undercuts

his argument that the error should be corrected. See Jones v.

United States, 527 U.S. 373, 394-95 (1999) ("Where the effect of an

alleged error is so uncertain, a defendant cannot meet his burden

of showing that the error actually affected his substantial

rights.").

We hasten to add that our decision need not rest on this

point alone. Even were we to assume, for argument's sake, that

Padilla somehow could clear the third-prong hurdle — a dubious

proposition at best — the fourth element of the plain error

formulation poses an insuperable obstacle. In our view, this

delegation error did not in any way impugn the fairness, integrity,

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or public reputation of the criminal proceeding as a whole. Thus,

we would decline in any event to exercise our discretion to correct

it. See Duarte, 246 F.3d at 60.

Our rationale is straightforward: the error in question

is simply not of such magnitude or consequence that it would

undermine faith in the judicial system were it to stand

uncorrected. This determination recognizes that an appellate

court's remedial authority under Rule 52(b) is circumscribed. See

Johnson, 520 U.S. at 466. A party's best safeguard against

judicial error is a contemporaneous objection. Where, as here, no

such objection was interposed, plain error principles cannot be

used as a surrogate for the foregone objection.

Seen in that light, it is readily apparent that plain

error review is not a panacea for every perceived misstep in the

trial process. The authority to notice plain errors, properly

exercised, does not allow a reviewing court to correct "the

ordinary backfires — whether or not harmful to a litigant's cause

— which may mar a trial record." United States v. Griffin, 818

F.2d 97, 100 (1st Cir. 1987). It follows that this power should be

employed sparingly to correct grave or consequential errors — those

that "seriously affect the fundamental fairness and basic integrity

of the proceedings conducted below." Id.

The error here, considered within the encincture of the

case as a whole, is not one of those grave or consequential errors.

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The placement of authority to set the maximum number of drug tests

in the hands of the judge is a statutory choice; it is neither a

matter of constitutional necessity nor a condition essential to the

fair administration of justice.2 Thus, Article III is implicated

only by way of the statutorily prohibited delegation, and to the

extent that the statute gives rise to any personal right to an

Article III adjudicator, no procedural principle is better settled

than that a right may be forfeited by neglecting to assert it in a

timeous manner before the nisi prius court. See Olano, 507 U.S. at

731; Yakus v. United States, 321 U.S. 414, 444 (1944).

To cinch matters, we do not perceive anything

fundamentally unfair about the delegation of authority to the

probation officer such as occurred in this case. That error

concerns a matter that is incidental to the defendant's sentence as

opposed to one of its core components. Cf. United States v. York,

357 F.3d 14, 21 (1st Cir. 2004) (distinguishing between

"significant penological decision[s]," such as the determination of

whether a defendant will be subject to polygraph testing on

release, and the details related to effectuating such decisions,

such as the frequency of the testing). In the grand scheme of

errors — from those that are tolerated as inevitable imperfections

2
Indeed, as the panel noted in Meléndez-Santana, "prior to the
enactment of Section 3583(d) as part of the Violent Crime Control
and Law Enforcement Act of 1994, probation officers . . . had the
authority to establish the maximum number of drug tests to be
performed." 353 F.3d at 106 n.13.

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in a judicial system administered by human beings to those that are

offensive to the very principles on which that system is based —

the error here seems to be solidly nestled within the former

category.

In an endeavor to convince us that this delegation error

warrants correction, Padilla cites three cases involving forfeited

delegation errors in the context of restitution. Those cases fail

to alter our conclusion that the instant error does not justify an

exercise of our remedial authority.

In two of the three decisions, the court of appeals

merely vacated the lower court's restitution order without any

explication regarding the applicability of the third and fourth

elements of the plain error test. See United States v. Overholt,

307 F.3d 1231, 1256 (10th Cir. 2002); United States v. Albro, 32

F.3d 173, 174 n.1 (5th Cir. 1994) (per curiam).3 The third

decision, United States v. Pandiello, 184 F.3d 682 (7th Cir. 1999),

is no more convincing. There, the court concluded that the third

and fourth elements of the plain error test were satisfied because

a delegation error involving the failure to specify the amount of

each restitution payment had occurred. Id. at 688. The court's

sole explanation for this conclusion was its characterization of

the error as "a serious structural defect." Id. (quoting United

3
The Albro court made a point of indicating that its finding
of plain error was case-specific. 32 F.3d at 174 n.1.

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States v. Mohammad, 53 F.3d 1426, 1439 (7th Cir. 1995)). We have

rejected that characterization with respect to the delegation error

at issue here. See supra Part II(C).

The bottom line is simply this: the cases relied upon by

Padilla are out of step with our plain error jurisprudence. For

that reason, we decline to follow them.

If more were needed — and we doubt that it is — another

reason counseling against the exercise of our corrective discretion

is the limited effect of the error. Should the probation officer

require an inordinate number of drug tests or otherwise misuse his

wrongly delegated authority, the defendant, notwithstanding his

original forfeiture, has at least a partial remedy. A specific

statute, 18 U.S.C. § 3583(e)(2), permits the district court, on

motion, to "modify, reduce, or enlarge the conditions of supervised

release, at any time prior to the expiration or termination of the

term of supervised release." In turn, the Criminal Rules require

the court, prior to effecting such a modification, to "hold a

hearing, at which the person has the right to counsel."4 Fed. R.

Crim. P. 32.1(c)(1). The advisory committee's 1979 note to Fed. R.

Crim. P. 32.1(b) (the section that, prior to the 2002 amendments,

4
Two exceptions apply to this requirement. A hearing is not
necessary (i) if the defendant waives the right to one or (ii) if
the relief sought is favorable to the defendant, does not extend
the term of release or probation, and the government has not
objected to the modification after receiving notice and an
opportunity to respond. See Fed. R. Crim. P. 32.1(c)(2).

-21-
contained the language that now appears in Rule 32.1(c)) states

that "[t]he probationer should have the right to apply to the

sentencing court for a clarification or change of conditions"; that

"the probationer should be able to obtain resolution of a dispute

over an ambiguous term or the meaning of a condition without first

having to violate it"; and that in cases of "unreasonableness on

the part of the probation officer, the probationer should have

recourse to the sentencing court when a condition needs

clarification or modification." Fed. R. Crim. P. 32.1 advisory

committee's note; see also 3 Charles Alan Wright, Nancy J. King,

Susan R. Klein & Sarah N. Welling, Federal Practice and Procedure

§ 543 (3d ed. 2004 & Supp. 2005). We believe that this remedial

regime provides adequate means for redress should the probation

officer attempt to ride roughshod.

In the last analysis, Padilla's argument that this court

should correct the error boils down to the fact that the error

occurred.5 He fails to make the case that this error, in

5
Padilla has not argued that the error in question ought to
provoke an exercise of this court's supervisory power. We mention
this possibility only because of the Supreme Court's decision in
Nguyen v. United States, 539 U.S. 69 (2003). There, in a 5-4
decision, the Court held that a Ninth Circuit panel that included
a non-Article III judge was improperly constituted under 28 U.S.C.
§ 292(a) and corrected the forfeited error through an exercise of
its supervisory powers. See id. at 74-81. This case is
distinguishable in that the mis-delegation of authority does not
involve a drastic departure from "the accepted and usual course of
judicial proceedings," id. at 74 (internal quotation marks
omitted), nor does the error deal with "a statutory provision that
embodies a strong policy concerning the proper administration of

-22-
comparison to other errors for which relief has been denied on

plain error review, is somehow exceptional. To accept his

suggestion that we must correct the error simply because section

3583(d) prohibits what the district court did would eviscerate the

plain error test.

III.

Conclusion

This en banc proceeding is less about the particulars of

Padilla's case and more about the need to preserve the integrity of

plain error review. The plain error doctrine is premised on the

assumption that parties must take responsibility for protecting

their legal rights and, accordingly, that only the clearest and

most serious of forfeited errors should be corrected on appellate

review. See Dominguez Benitez, 124 S. Ct. at 2340; Olano, 507 U.S.

at 731; Griffin, 818 F.2d at 100. Courts must be scrupulous in

hewing to that line.

So it is here: while a district court commits error when

it orders drug testing under section 3583(d) but fails to establish

the maximum number of tests that the probation officer can

administer, we discern no reason why that sort of bevue warrants

correction under the jurisprudence of plain error. See Dominguez

Benitez, 124 S. Ct. at 2340 (explaining that the plain error

standard, properly administered, "should enforce the policies that

judicial business," id. at 81 (internal quotation marks omitted).

-23-
underpin Rule 52(b) generally, to encourage timely objections and

reduce wasteful reversals by demanding strenuous exertion to get

relief for unpreserved error").

We need go no further. Because the defendant has not

demonstrated that a delegation error of the type committed here

satisfies either the third or the fourth elements of the applicable

test, we deny the relief requested and affirm his sentence,

including the disputed supervised release condition.

Affirmed.

— Separate Opinions Follow —

-24-
 BOUDIN, Chief Judge, concurring. To a novice, the notion

that "error" has occurred in the course of a trial or sentencing

may be alarming, but anyone familiar with the work of courts

understands that errors are a constant in the trial process, that

most do not much matter, and that a reflexive inclination by

appellate courts to reverse because of unpreserved error would be

fatal.

A federal trial can involve myriad issues of substantive

law, split-second rulings on points of evidence and procedure, and

(in criminal cases) a sentencing regime so complex that it is now

the subject of treatises. Many legal questions have no

indisputably right answer: often there is no exact precedent;

statutory language or prior decisions are ambiguous; competing

policy objectives strive for supremacy; and individual district

judges within the same district court can and regularly do give

different answers to the same question.

Circuit judges have more time to reflect and the

advantage of more thorough briefing. Yet there are tables that set

forth conflicts on numerous questions as between circuits. See,

e.g., Circuit Split Roundup, 75 Crim. L. Rep. 441, 463-64 (2004)

(listing circuit splits "discussed in federal appellate decisions

issued in April 2004"). Like trial courts, circuit courts

themselves labor under severe constraints due to the volume of

cases and the complexity of the laws being administered. Law is

-25-
complex because the world that it regulates is complex, but

complexity makes perfection unattainable.

None of this signals any crisis. Many so-called errors

have no plausible effect on the outcome of the case, and many more

have only the lowest likelihood of affecting the outcome. Evidence

is frequently cumulative; jury instructions may pose questions on

which the jury's decision is controlled by weighty evidence; and

details in sentencing conditions may be of minimal practical

importance. For this and other reasons of policy, counsel is

expected to object when a judge rules adversely to the client; and

objections not presented in a timely manner are ordinarily

forfeited. Yakus v. United States, 321 U.S. 414, 444 (1944).

Even if an error has been forfeited, the plain error

doctrine still allows reversal on appeal--but only if specific

conditions are met. Although the current standard is supplied by

the Supreme Court's decision in United States v. Olano, 507 U.S.

725, 732 (1993), the underlying factors would be the same under any

common-sense formulation: e.g., the clarity of the error, the

likelihood that it affected the result, and concerns about justice

(which is not the same thing as a difference in result).

It is in this context of inevitable (but often

unimportant) error that one must consider the sentencing mistake in

this case, namely, a decision to let the probation officer set the

required number of drug tests instead of having the maximum number

-26-
specified by the judge. Most people would probably think it

entirely sensible that a probation officer, an individual familiar

with the defendant while on supervised release, be the one to make

such judgments in the first instance--subject always, as is the

case, to the ability of the district judge to alter the number or

to remedy any other unfairness of administration of a condition.

It happens that a governing decision now says that the

judge should fix the maximum number, United States v. Melendez-

Santana, 353 F.3d 93, 103 (1st Cir. 2003), but that was a change in

practice--not a requirement of a law of nature. Correcting by a

remand a later instance of the same mistake, when defense counsel

ignored the matter in the district court, may seem a small matter

to an appellate judge in the comfort of chambers, but is a waste of

time for everyone involved and especially for the district court.

The time of a judge is scarcest of all judicial

resources. Every unnecessary remand is a theft of that time from

cases where the dispute really matters–a theft multiplied many

times over in situations where (as in Melendez) lawyers often do

not bother to object because no one notices or supposes the matter

worth correcting. The dilution of plain error requirements in one

case then becomes (as with Melendez) the means or excuse for a

further dilution in other cases, inviting a further downward

spiral.

-27-
 It is improbable that even the defendant in this case

really cares whether the probation officer or the judge initially

sets the maximum number of tests; counsel, at taxpayer expense in

most criminal appeals, raise such issues simply because they are

there. Counsel is entitled to do so; the real problem begins when

judges reward such efforts by seeking to rescue forfeited errors of

no importance, encouraging more such claims and more wasted time in

the future.

The work of courts is not an academic exercise. See

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Judges are

engaged in getting the world’s work done, implementing legal rules

fairly but within a framework of settled procedural constraints–-

absent which the system could not function. To be inventive in

extending prior precedent is a useful capability for a judge; to be

practical is a necessity.

— Dissenting Opinion Follows —

-28-
 LIPEZ, Circuit Judge, with whom TORRUELLA, Circuit Judge,

joins, dissenting. I agree with the majority that the plain error

in Padilla's sentence is not structural in nature. However,

because I believe that it is meaningless to apply the third step of

the plain-error test in these circumstances, and because I would

resolve the fourth step in Padilla's favor, I respectfully dissent

from the majority's decision to leave the error uncorrected.

I. The third step (prejudice)

As the majority acknowledges, we are faced with comparing

"two unknown variables: the limit the district court would have set

on drug tests and the number of tests that the probation officer

will demand." Ante at __. In the majority's view, this

circumstance makes it "nearly impossible" for Padilla to show

prejudice. Id. Actually, the problem is deeper than that.

The plain-error test's third step requires us to assess

the probability that the error at issue affected the outcome of the

proceeding in which it occurred. To meet the plain-error test, the

prejudicial effect on the outcome of the proceeding must be

"substantial and injurious." United States v. Dominguez Benitez,

542 U.S. 74, __, 124 S. Ct. 2333, 2339 (2004) (internal quotation

marks omitted). Typically, when a defendant comes to us alleging

that the district court has committed plain error, we are able to

ask meaningful questions: Would the judge or jury still have found

the defendant guilty, or would the judge have imposed the same

-29-
sentence, or would the defendant still have entered a guilty plea,

if the error had not occurred? We answer those questions "by

viewing such a claim against the entire record. . . . It is simply

not possible for an appellate court to assess the seriousness of

the claimed error by any other means." United States v. Young, 470

U.S. 1, 16 (1985). If we answer those questions "yes," we conclude

that there was no prejudice from the error.

Here, however, we cannot ask that kind of question. This

case involves an erroneous delegation of authority to a probation

officer. That delegation error was not a ruling preliminary to a

guilty verdict, or the imposition of a period of incarceration, or

the acceptance of a guilty plea. We cannot assess the likelihood

that a known outcome would have occurred even without the error.

The error relates only to who imposes a condition of supervised

release. For the purpose of evaluating the significance of the

delegation error itself, the probability question that is so

critical to the prejudice analysis of plain-error review is

meaningless.

If we focus instead on the consequence of the improper

delegation of authority (how many drug tests the defendant will be

required to submit to during supervised release), the probability

question is still meaningless. The improperly delegated authority

has not yet been exercised. Thus we have two unknowns: the number

of drug tests the judge never decided to require, and the number of

-30-
drug tests the probation officer has yet to require. As an

appellate court in these circumstances, we are deprived of any

meaningful ability to review the plain error for prejudice. In

other words, Padilla's failure to show prejudice results not from

any infirmities specific to his case, but from an inherent

limitation on our ability to analyze the issue of prejudice. We

are not applying a "test" when the subject of the test has zero

chance of passing--and no defendant in Padilla's situation will

ever be able to show prejudice. In effect, the majority applies a

per se rule which will always leave this kind of error uncorrected.

The Supreme Court's logic in Sullivan v. Louisiana, 508

U.S. 275 (1993), is instructive here. In that case, the district

court had given the jury an erroneous reasonable-doubt instruction.

Although many constitutional errors are amenable to harmless-error

review, see Chapman v. California, 386 U.S. 18, 24 (1967), the

Court held that the error in Sullivan was not because "the entire

premise of Chapman review is simply absent," Sullivan, 508 U.S. at

280. The Court explained:

There being no jury verdict of guilty-beyond-a-
reasonable-doubt, the question whether the same verdict
of guilty-beyond-a-reasonable-doubt would have been
rendered absent the constitutional error is utterly
meaningless. There is no object, so to speak, upon which
harmless-error scrutiny can operate.

Id.

-31-
 As I have said, I reject Padilla's characterization of

his sentencing error as structural. However, we are faced with a

Sullivan-like problem here. Because we are comparing an unknown

with an unknown, we have "no object, so to speak, upon which [the

prejudice] scrutiny can operate." Id. There are some questions to

which no meaningful answer can be given--in other words, where the

question's premise simply does not apply. That is the situation

here. We are not applying a "test" to facts, as if the outcome

might depend on those facts. Thus, the prejudice analysis of

plain-error review in a case such as this is simply illusory.

In concluding that this indeterminacy means that Padilla

loses on the third step, the majority cites a statement from Jones

v. United States: "Where the effect of an alleged error is so

uncertain, a defendant cannot meet his burden of showing that the

error actually affected his substantial rights." 527 U.S. 373,

394-95 (1999). Jones had been convicted of a capital offense and

sentenced to death. On appeal, he claimed that an erroneous

instruction had led the jury to believe that if it failed to

recommend a sentence unanimously (whether life imprisonment or a

death sentence), the court would then impose a sentence of less

than life. 527 U.S. at 387. The court in Jones knew the outcome

of the process affected by the alleged error: that Jones had in

fact been sentenced to death. That type of error lends itself to

the traditional prejudice analysis of plain-error review, in which

-32-
a court must assess the probability of the same outcome even if the

error had not occurred. The Court engaged in such a probability

analysis when it said that

even assuming that the jurors were confused over the
consequences of deadlock, petitioner cannot show the
confusion necessarily worked to his detriment. It is
just as likely that the jurors, loath to recommend a
lesser sentence, would have compromised on a sentence of
life imprisonment as on a death sentence.

Id. at 394-95. For reasons that I have already explained, that

traditional prejudice analysis does not apply to the delegation

error at issue in this case. Here, we do not have the equivalent

information: namely, how many drug tests probation will require.

We are, in short, dealing with a different kind of plain-error

problem. Thus the prejudice analysis in Jones has scant relevance

to the prejudice issue here.

The government insists, however, that we are not dealing

with a different kind of plain-error problem. It cites two cases

which, in its view, demonstrate that even if a decision was made by

the wrong person or institution, the Supreme Court nonetheless

applies plain-error review as usual. Those cases are United States

v. Cotton, 535 U.S. 625 (2002) (drug quantity omitted from

indictment and so decided by judge instead of jury; Court reviewed

for plain error); and Johnson v. United States, 520 U.S. 461 (1997)

(in prosecution for perjury, the element of materiality was decided

by the judge instead of jury; Court reviewed for plain error). In

-33-
each case, the judge made a decision that the jury should have

made. The Court approached the claim of error by reviewing the

entire record and concluding that, even if the question had been

asked correctly of the jury rather than the judge, the outcome

would be the same because the evidence was "overwhelming and

uncontroverted." Cotton, 535 U.S. at 634; see also Johnson, 520

U.S. at 470 (evidence supporting materiality was "overwhelming").

Those cases did not, however, involve an improper delegation of

authority which had never been exercised. They were thus amenable

to a traditional kind of plain-error review; they only confirm that

we are dealing here with a different kind of error, which

necessitates a different approach to plain-error review.

II. The fourth step (public reputation of

judicial proceedings)

The only meaningful plain-error question when reviewing

a claim like Padilla's involves the fourth step: whether the error

so "seriously affects the fairness, integrity or public reputation

of judicial proceedings," United States v. Olano, 507 U.S. 725, 736

(1993) (internal quotation marks and citation omitted), that it

cannot stand. The majority dismisses this error as one "not of

such magnitude or consequence that it would undermine faith in the

judicial system were it to stand uncorrected." Ante at __. I

cannot agree.

-34-
 I first note one aspect of the history of this case. In

United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir. 2003),

where a panel of this court first decided that the delegation error

at issue here was plain error, the government did not seek a

rehearing by the panel or en banc. Since that case, as the

majority describes, the government has repeatedly conceded the

error in many cases and agreed to a remand for correction without

asking for en banc review of the plain-error determination. See,

e.g., United States v. Villafane-Jimenez, 410 F.3d 74, 88 (1st Cir.

2005); United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir.

2005); United States v. Vega, 398 F.3d 149, 154 (1st Cir. 2005).

Even when the original panel in this case explicitly invited the

government to seek a rehearing en banc, the government declined to

do so. See United States v. Padilla, 393 F.3d 256, 261 (1st Cir.

2004) (Campbell & Selya, JJ., concurring), vacated, 403 F.3d 780

(1st Cir. 2005). At that point, the court sua sponte had to call

for a rehearing en banc and order briefing.

As a procedural matter, that call was entirely

appropriate. If we think we have made a legal error, we have a

responsibility to correct it even if the parties are indifferent.

Still, the costs of complying with the Meléndez-Santana rule

arguably fell on government prosecutors, who had to go back to

court and get the sentencing judge to establish the maximum number

of drug tests. When the government displays little interest in

-35-
avoiding this burden, it should warn us that our interest in

avoiding it for them may be incompatible with the fourth step of

plain-error review.

As we have said before, "[t]he 'fairness, integrity or

reputation' plain-error standard is a flexible one and depends

significantly on the nature of the error, its context, and the

facts of the case." United States v. Gandia-Maysonet, 227 F.3d 1,

6 (1st Cir. 2000); see also United States v. Hoyle, 237 F.3d 1, 5

(1st Cir. 2001) (same). This kind of delegation error-–which

leaves the defendant in an impossible position for showing

prejudice, yet which is so easy for the prosecution and trial court

to fix--meets that standard.

A. Sentencing errors are different

The Second Circuit has held that courts have some

flexibility in applying the otherwise strict standards of plain-

error review when faced with sentencing errors. See United States

v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). We, in turn, have

cited Sofsky for that proposition. See United States v.

Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002). One of the

principle reasons for Sofsky's conclusion was the relative ease of

the burden of correction:

[N]oticing unobjected-to errors that occur at trial
precipitates an entire new trial that could have been
avoided by a timely objection, whereas correcting a
sentencing error results in, at most, only a remand for
resentencing, or, as in this case, for a modification of
the allegedly erroneous condition of supervised release.

-36-
287 F.3d at 125. Here, of course, Padilla makes the same modest

request for a modification in the conditions of his supervised

release, and the same principle applies.

We have demonstrated our fidelity to this principle

recently in our treatment of unpreserved Booker error. For

instance, in United States v. Antonakopoulos, we began with a

classic statement of the third prong. To show prejudice, we said

that a defendant must "point to circumstances creating a reasonable

probability that the district court would impose a different

sentence more favorable to [him] under the new 'advisory

Guidelines' Booker regime." 399 F.3d 68, 75 (1st Cir. 2005). Soon

thereafter, we also said in United States v. Heldeman that we were

"[g]uided by traditional plain error doctrine." 402 F.3d 220, 224

(1st Cir. 2005). Yet we acknowledged that, due to the special

circumstances of unpreserved Booker error, "we are inclined not to

be overly demanding as to proof of probability where, either in the

existing record or by plausible proffer, there is reasonable

indication that the district judge might well have reached a

different result under advisory guidelines." Id. We added that,

[a]fter all, it will be easy enough for the district
judge on remand to say no with a minimum expenditure of
effort if the sentence imposed under the pre-Booker
guidelines regime is also the one that the judge would
have imposed under the more relaxed post-Booker
framework.

-37-
Id.; see also United States v. Wilkerson, 411 F.3d 1, 8 (1st Cir.

2005) (one reason for remand is that "it would be easy enough for

[the district judge] to say no with a minimum expenditure of

effort"). Although Heldeman did not explicitly consider the fourth

step of plain-error review in its analysis, I understand our

consideration of the burden of correcting the error as particularly

relevant to the fourth step. To the extent that Heldeman did not

consider the fourth step at all, it shows that we have been

sensitive to context in the application of plain-error doctrine-

–indeed, quite recently, and in an instance where institutional

concerns about the burden of error correction were important to the

plain-error analysis.

In short, in the sentencing context, we have been able to

adapt traditional plain-error review to unusual circumstances that

the doctrine, and the Supreme Court's explication of it, have not

anticipated. We continue to cite both Antonakopoulos and Heldeman

as our guides in this area of law. See, e.g., United States v.

Lewis, 406 F.3d 11, 21 (1st Cir. 2005).

B. Institutional concerns predominate

We should show that same flexibility here. The fourth

step requires us to focus on the larger, institutional consequences

of the error (as expressed by the phrase the "public reputation of

judicial proceedings"), not only on the consequences of the error

for the defendant before us. Here, those institutional concerns

-38-
should include the importance of courts following explicit rules

that Congress has prescribed. Of course courts will sometimes go

astray,6 as in this case. However, when the burden of getting it

right is so minimal, the obligation to make the correction is that

much greater. We are not confronted here with the prospect of

redoing trials, or plea proceedings, or even sentencing hearings.

Instead, at most, the sentencing judge, with input from the

prosecution and defense counsel, has to correct the improper

delegation of authority to a probation officer and set the maximum

number of drug tests.

Congress has said, for reasons that may not be fully

apparent to us, that judges rather than probation officers should

set the maximum number of drug tests. We acknowledged that

uncertainty about Congress's rationale in Meléndez-Santana itself:

"Legislative history does not reveal why Congress chose to go in a

different direction" from a policy permitting judges to delegate

such decisions. United States v. Meléndez-Santana, 353 F.3d 93,

106 (1st Cir. 2003). The majority views Congress's commitment of

these kinds of decisions to the courts as merely statutory and, in

the final analysis, not particularly important. I acknowledge

that, before 1994, probation officers had the discretion to set the

6
As I have said, a quick search through our recent cases shows
that we are dealing with a common delegation error. See, e.g.,
Villafane-Jimenez, 410 F.3d at 88; Ayala-Pizarro, 407 F.3d at 29;
Vega, 398 F.3d at 154.

-39-
maximum number of drug tests. Still, Congress has made a decision

to alter that practice, and we should respect that choice by

correcting the error that undermines it.

With a minimal expenditure of judicial resources, we can

show that respect and thereby avoid a misapplication of the plain-

error doctrine which, rather than preserving the integrity of

plain-error review, repudiates our recent willingness to apply that

doctrine flexibly in the sentencing context. Such flexibility does

not threaten to open the floodgates of easy error correction, and

burdensome retrials and resentencing, as the majority may fear. We

will retain our ability to distinguish between types of error and

the contexts in which they occur. The integrity of plain-error

review does not suffer from its sensible application.

III. Conclusion

We should not appear to apply the plain-error doctrine

when, in truth, we know that defendants are destined for failure.

That is not a test, properly speaking--that is a per se rule. The

majority essentially opts for that per se approach and would leave

the delegation error at issue here, and all similar errors,

uncorrected. Respectfully, that is a mistake. We should exercise

our discretion to correct this error, thereby carrying out a direct

Congressional command with a minimal burden on prosecutors and the

courts. The fourth step of plain-error review is designed to

-40-
safeguard the reputation of the courts. Leaving this plain error

uncorrected disserves that purpose.

-41-