Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1068
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON DÁVILA-TAPIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Steven A. Feldman and Feldman and Feldman on brief for
appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), and Luke Cass, Assistant United States Attorney, on
brief for appellee.
July 16, 2012
Per Curiam. Defendant-appellant Nelson Dávila-Tapia, a
man in his mid-thirties, pleaded guilty to conspiring to possess
with intent to distribute at least 100, but no more than 400, grams
of heroin within 1,000 feet of an elementary school. See 21 U.S.C.
§§ 841(a)(1), 846, 860. Following his plea, the district court
sentenced him to serve eighty-four months in prison to be followed
by eight years of supervised release. As one of the conditions of
supervised release, the court ordered the appellant to submit to no
more than 104 drug tests per year (the exact number to be
prescribed from time to time by the probation department as long as
at least three such tests were carried out during the supervised
release term).
Before us, the appellant argues (i) that this condition
involves an impermissible delegation of judicial authority and (ii)
that authorizing an upper limit of 832 drug tests over the course
of the term of supervised release (104 tests per year for eight
years) was excessive and unreasonable. After careful consideration
of this asseverational array, we reject the appeal.
The parties have briefed a threshold issue concerning
whether a waiver-of-appeal provision contained in the appellant's
plea agreement bars this appeal all together. Given what
transpired in the district court, the resolution of this issue is
not clear-cut. Conversely, the claim of sentencing error itself is
easily dispatched. For ease in analysis, we therefore assume
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arguendo that the waiver-of-appeal provision does not bar the
maintenance of this appeal.
A sentencing court's shaping of a condition of supervised
release is ordinarily reviewed for abuse of discretion. United
States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en banc).
Where, however, the defendant has failed to object to the disputed
condition in the court below, appellate review is for plain error.
Id.; see Fed. R. Crim. P. 52(b). This is such a case.
Plain-error review "entails four showings: (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) (citing Johnson v. United States, 520 U.S. 461,
466-67 (1997)). The defendant must carry the devoir of persuasion
as to each element. Padilla, 415 F.3d at 218.
The appellant's principal argument is that the disputed
condition, which allows a probation officer to require the
administration of up to 104 drug tests per year, works an
impermissible delegation of judicial authority. This argument has
been squarely rejected: there is no delegation error where, as
here, a district court requires up to 104 drug tests per year as a
condition of a defendant's supervised release. See United States
v. Morales-Rodríguez, 467 F.3d 1, 16 (1st Cir. 2006); United States
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v. Laureano-Velez, 424 F.3d 38, 41 & n.4 (1st Cir. 2005) (per
curiam).
The appellant's fallback position is that the disputed
condition is excessive and unreasonable. In his view, empowering
the probation officer to arrange for up to 104 drug tests per year
for eight years yields a potential number of drug tests that is so
oppressive that the appellant would be virtually pre-ordained to
violate his supervised release. As authority for this proposition,
he cites United States v. Guy, 174 F.3d 859 (7th Cir. 1999).
The opinion in Guy simply does not say what the appellant
says that it says. The Guy court explained that while authorizing
104 drug tests per year "might seem excessive" for an offender who
had no prior history of drug abuse, imposing such a condition of
supervised release was not plain error. Id. at 862.
On the facts of this case, the holding in Guy helps,
rather than hurts, the government. If the imposition of such a
supervised release condition is not plain error in the case of a
defendant who has no prior record of drug abuse, then it hardly can
be plain error in the case of a defendant who — like the appellant
— has used heroin on a daily basis since the age of twenty-three,
and regularly has used cocaine and marijuana as well.1
We add, moreover, that the appellant's fears may be less
1
Despite the fact that the appellant underwent drug-
rehabilitation treatment in 2008, an October 2010 drug test
indicated the presence of heroin, cocaine, benzodiazepines, and
marijuana in his system.
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than horrible imaginings. Even though the maximum number of
allowable drug tests is high, neither the conditions of supervised
release nor their implementation is set in stone. Assuming that
the appellant walks the straight and narrow during his term of
supervised release, he is free to ask the probation officer to
order a more modest number of tests (only a total of three over the
entire duration of supervised release is required). Similarly, he
is free to ask the district court to modify the disputed supervised
release condition should it prove to be onerous. 18 U.S.C.
§ 3583(e)(2).
We need go no further. A sentencing court has
significant discretion to custom-tailor the conditions of
supervised release as long as those conditions are reasonably
related to "(1) the defendant's offense, history and
characteristics; (2) the need for adequate deterrence; and (3) the
need to protect the public from further crimes of the defendant."
United States v. Mansur-Ramos, 348 F.3d 29, 33 (1st Cir. 2003)
(internal quotation marks omitted); see 18 U.S.C. §§ 3553(a)(2),
3583(d); USSG §5D1.3(b). This standard was satisfied in the case
at hand. There was no error, plain or otherwise. See, e.g.,
United States v. Elwell, 984 F.2d 1289, 1298 (1st Cir. 1993)
(holding that drug testing "lay well within the district court's
discretion, given Elwell's past use and past dealing in drugs").
Affirmed.
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