United States v. Melendez-Santana

United States Court of Appeals
For the First Circuit

No. 01-2386
No. 01-2397

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL MELÉNDEZ-SANTANA,

Defendant, Appellant.

APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Chief U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge,

Carlos Lugo-Fiol for appellant Rafael Meléndez-Santana.
Francisco A. Ojeda-Diez with whom H.S. Garcia, United States
Attorney, and Sonia I. Torres, Assistant United States Attorney,
were on brief, for appellee.

December 24, 2003

__________________

*Of the Northern District of California, sitting by
designation.
 LIPEZ, Circuit Judge. This consolidated appeal of two

criminal cases, Appeal Nos. 01-2386 and 01-2397, requires us to

evaluate the validity of certain conditions of supervised release

and the procedures used to impose those conditions. This

evaluation, in turn, requires us to consider the amount of

discretion a sentencing court may delegate to probation officers

and whether a condition that is included in a written sentencing

order but not announced at the sentencing hearing violates a

defendant's constitutional rights.

I.

In Appeal No. 01-2386, the defendant, Rafael Meléndez-

Santana ("Meléndez"), and three other individuals met an undercover

DEA agent and a police informant on August 21, 2000, in a shopping

mall parking lot to purchase twenty-five kilograms of cocaine. The

parties had previously negotiated a sales price of $12,000 per

kilogram for a total of $300,000. Meléndez agreed to finance this

purchase. When Meléndez opened the trunk of his car and showed the

purported sellers a portion of the money, DEA agents arrested him

and his associates. They found a Beretta 9mm pistol in his

possession.

In Appeal No. 01-2397, Meléndez committed the crimes

approximately three months prior to his arrest on the charges

involved in Appeal No. 01-2386. The details regarding this earlier

conduct as reported in the parties' stipulated statement of facts

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are sparse. It appears that Meléndez dropped an individual off at

the airport who was carrying $36,000 in a bag. A search of the van

that Meléndez was driving produced approximately a kilogram of

cocaine, approximately five hundred (500) grams of heroin and

several weapons. The stipulated statement of facts did not

indicate why Meléndez was not arrested at the airport on that day.

On September 21, 2000, a federal grand jury in Puerto

Rico indicted Meléndez on four counts for the August 21 conduct.

The indictment included one count of possession with intent to

distribute more than five kilograms of cocaine, possession of a

firearm in furtherance of a drug trafficking offense, possession of

a firearm by a convicted felon, and aiding and abetting. Meléndez

pled guilty to the drug possession and possession of a firearm in

furtherance of a drug trafficking offense counts on January 23,

2001. On August 21, 2001, the district court sentenced him to a

term of twenty-four months on the first charge and sixty months on

the second. The terms were to be served consecutively. He was

also sentenced to three years of supervised release.

At the end of that sentencing hearing, Meléndez's

attorney advised the court that an information had been filed

against Meléndez in Appeal No. 01-2397, the case involving the

earlier criminal conduct at the airport. In that case, the

government accused him of possession with intent to distribute one

kilogram of cocaine and approximately five hundred grams of heroin.

-3-
Meléndez waived his right to indictment and the preparation of a

Pre-Sentence Report (PSR) and pled guilty. In exchange for his

plea, the parties agreed that he would be held accountable for more

than four hundred grams but less than five hundred grams of

cocaine. He was sentenced during the same hearing to a term of

thirty-seven months of imprisonment, to be served consecutively to

the sentence in Appeal No. 01-2386. He was also sentenced to a

supervised release term of four years.

Meléndez filed a timely appeal from his sentences,

raising a series of challenges to the length of his sentence and to

the terms of his supervised release. After a careful review of the

record, we affirm part of his sentences, vacate other portions and

remand for re-sentencing by the district court.

II.

We begin our analysis with some background information on

the supervised release system. Congress abolished the existing

parole system in the Sentencing Reform Act of 1984, § 212(a)(2), 98

Stat. 1999 (codified at 18 U.S.C. § 3583 (2000)), and replaced it

with a new system of "supervised release." The two systems are

similar in that both allow former inmates to reenter society under

official control. However, under supervised release, courts,

rather than the Parole Commission, are responsible for setting and

enforcing the conditions of release.

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 The United States Sentencing Guidelines generally require

courts to impose a term of supervised release to follow every

felony--or when otherwise required by statute--and they give the

courts the option to do so in all other cases. U.S.S.G. § 5D1.1.

These terms normally last one to five years. Id. § 5D1.2(a).

The Guidelines list a series of conditions of supervised

release that fall into three categories: 1) mandatory conditions

that courts must include in every sentencing order; 2) standard

conditions that are recommended but not required; and 3) special

conditions that are not required but can be imposed under certain

circumstances. U.S.S.G. § 5D1.3. The seven mandatory conditions

include basic correctional provisions such as "the defendant shall

not commit another federal, state or local offense," id. §

5D1.3(a)(1), and "the defendant shall not unlawfully possess a

controlled substance," id. § 5D1.3(a)(2). The fifteen standard

conditions generally relate to the defendant's responsibilities

toward his probation officer. See, e.g., id. § 5D1.3(c)(3) ("[T]he

defendant shall answer truthfully all inquiries by the probation

officer and follow the instructions of the probation officer.").

They also include rehabilitative requirements, such as a condition

mandating that the defendant keep a job. Id. § 5D1.3(c)(5).

In addition to the mandatory and standard conditions,

there are twelve "special" conditions listed in Sections 5D1.3(d)

and 5D1.3(e) of the Guidelines. Section 5D1.3(d) consists of seven

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special conditions that are recommended in situations in which

certain predicate facts are present. For example, one provision

bars defendants who have been convicted of felonies or used

dangerous weapons in the course of their crimes from possessing a

firearm or other dangerous weapon. Id. § 5D1.3(d)(1). Other

provisions mandate that the defendants participate in drug and

mental health treatment programs when the court finds that such

treatment is necessary. Id. § 5D1.3(d). Section 5D1.3(e) lists

additional special conditions that "may be appropriate on a

case-by-case basis." These special conditions include a curfew,

home detention and community service requirements. Id. §

5D1.3(e).1

If a released inmate violates the terms of supervised

release, the court may impose serious punishments, up to and

including requiring the violator to serve his release term in

prison. 18 U.S.C. § 3583(e)(3). Under certain circumstances, such

as where the defendant possesses illegal drugs or refuses to comply

1
In addition to the listed conditions, courts can also impose
conditions "to the extent that such conditions (1) are reasonably
related to (A) the nature and circumstances of the offense and the
history and characteristics of the defendant; (B) the need for the
sentence imposed to afford adequate deterrence to criminal conduct;
(C) the need to protect the public from further crimes of the
defendant; and (D) the need to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner; and (2)
involve no greater deprivation of liberty than is reasonably
necessary for the purposes set forth above and are consistent with
any pertinent policy statements issued by the Sentencing
Commission." U.S.S.G. § 5D1.3(b).

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with drug testing requirements, the court must revoke his term of

supervised release and reimprison him. 18 U.S.C. § 3583(g). We

turn now to Meléndez's specific claims.

A. Four Year Supervised Release Term

Meléndez claims--and the government agrees--that the

district court erroneously departed from the United States

Sentencing Guidelines when it sentenced him to a four-year

supervised release term in Appeal No. 01-2397, the case involving

the information and the earlier criminal conduct. We concur.2

Before a court may impose a sentence exceeding the

Guidelines, it "must give prior notice to the defendant of its

intention to impose a term of such an extended duration and must

state on the record the aggravating circumstances that justify the

upward departure." United States v. Matos 328 F.3d 34, 44 (1st

Cir. 2003); see also Burns v. United States, 501 U.S. 129, 138-39

(1991). The government charged Meléndez in an information with

2
Meléndez did not object to this departure at sentencing. In
United States v. Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002),
we held that while we generally review for plain error when a party
fails to object at sentencing, we apply abuse of discretion review
"if the defendant could not reasonably have anticipated the issue
would arise until after the court ruled." Since Cortes-Claudio
could not reasonably have anticipated that the court would depart
from the guidelines, we reviewed that sentence for abuse of
discretion. Id. The same reasoning applies here. In practical
terms, however, the distinction between the two standards of review
is irrelevant to the outcome of this case since we would reach the
same result under plain error review. See, e.g., United States v.
Mangone, 105 F.3d 29, 36 (1st Cir. 1997) (finding plain error when
the sentencing court departed upward without giving prior notice).

-7-
possession with intent to distribute one kilogram of cocaine and

500 grams of heroin in Appeal No. 01-2397. Meléndez waived

indictment, trial, and the preparation of a Pre-sentence Report and

agreed to plead guilty. Under the terms of that plea agreement,

however, the parties stipulated that he would plead guilty to

possession with the intent to distribute at least four hundred but

less than five hundred grams of cocaine.

The original offense for which Meléndez was charged in

the information carried a mandatory four-year term of supervised

release, see 21 U.S.C. § 841(b)(1)(B), but the offense to which he

actually pled guilty only carried a statutory mandatory term of

three years of supervised release. 21 U.S.C. § 841(b)(1)(C). The

sentencing court erroneously imposed the supervised release term

that accompanied the original charge.3 Since the resulting

sentence exceeded the Guidelines for the offense for which he

actually was found guilty, see U.S.S.G. § 5D1.2(a), and since the

court failed to provide advance notice of this departure, we vacate

the four-year supervised release provision in Appeal No. 01-2397.

We also vacate the portion of the judgment that states that

3
Our view that this was merely an oversight is supported by
the thirty-seven month term of imprisonment that the court ordered.
The offense level with which the sentencing judge started matches
the Guidelines level for a crime involving four hundred but less
than five hundred grams of cocaine but it is below the mandatory
minimum sentence for crimes involving five hundred grams or more of
cocaine. See 21 U.S.C. § 841(b)(1)(B) (setting a mandatory minimum
prison sentence of five years for crimes involving five hundred
grams but less than five kilograms of cocaine).

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Meléndez pled guilty to possession with intent to distribute one

kilogram of cocaine and five hundred grams of heroin. As noted,

Meléndez actually pled guilty to possession with intent to

distribute four hundred but less than five hundred grams of

cocaine, and the judgment should be corrected to reflect this

fact.4

B. Consecutive Sentences

Meléndez claims that the district court erroneously

ordered him to serve the sentences in Appeal Nos. 01-2386 and 01-

2397 consecutively. In his view, the convictions should be

considered multiple counts of the same case for sentencing

purposes. He contends that the offenses all involved similar

conduct, that these offenses occurred only three months apart, that

he was not arrested until after he had taken the actions underlying

the charges in both cases, and that both cases were disposed of on

the same day in the same proceeding. On this basis, he argues that

his sentences should run concurrently. See U.S.S.G. § 5G1.2;

United States v. Quiñones, 26 F.3d 213, 217 (1st Cir. 1994)

4
The sentencing court allowed the defendant to waive the
preparation of a separate PSR for this hearing. A report had been
prepared in the proceedings giving rise to Appeal No. 01-2386, and
defense counsel claimed that a new PSR was unnecessary.
Nevertheless, the Guidelines clearly state in a policy statement
that "[t]he defendant may not waive preparation of the presentence
report," U.S.S.G. § 6A1.1. The errors here illustrate the wisdom
of that requirement. With a PSR in hand, the court would have
recognized that the circumstances of the plea did not permit a
four-year supervised release term, and would have entered a
judgment that accurately reflected the terms of this plea.

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(holding that a court may impose consecutive sentences for

multiple-count cases only after following the accepted protocol for

guideline departures).

The government asserts that Meléndez has waived this

claim by failing to present it first to the district court. It

also contends that, in any event, there was no plain error. As it

notes, the court simply followed the parties' recommendation in

their plea agreement by imposing a consecutive sentence in the

second case after first securing Meléndez's confirmation that he

had agreed to the consecutive sentence.5

Although Meléndez acknowledges that he agreed to the

consecutive sentence, he contends that the plea agreement also

stated that he would be sentenced in accordance with the Sentencing

Guidelines and that the sentencing recommendation was in conflict

with the Guidelines. Without case law or other support, he argues

that we should resolve the conflict in favor of the Guidelines.

On these facts, we agree that Meléndez has waived his

claim. We also agree that there was no plain error. The record

shows that Meléndez entered into his plea agreement voluntarily and

knowingly, realizing full well that he would receive the

consecutive sentence that he did. In effect, Meléndez is asking us

5
The agreement stated explicitly that "the appropriate
disposition" of the case was a thirty-seven month term of
imprisonment "to be served consecutively with the sentence imposed
in [Appeal No. 01-2386]." (emphasis in original).

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to relieve him of his obligations under the plea agreement, even

though the government has lived up to its commitments. We decline

to do so.

C. Conditions of Supervised Release

Meléndez claims that the district court's imposition of

conditions of supervised release included a number of procedural

and substantive errors. Specifically, he claims that the court

violated his Sixth Amendment right to be present at his sentencing

by including a special drug treatment condition in the written

sentencing orders without announcing that condition at the

sentencing hearings. He also claims that the drug treatment

provision constituted an impermissible delegation of judicial

authority since it allowed a probation officer to determine whether

he had to undergo treatment. He claims that a provision requiring

him to undergo drug testing also constituted an impermissible

delegation since it allowed the probation officer to decide how

many drug tests he had to undergo. Finally, he claims that the

court abused its discretion by requiring him to provide financial

records to the probation officer, and again violated his Sixth

Amendment rights by not imposing that financial records condition

at one of his hearings. We will review each claim in turn.

1. The Drug Treatment Condition

Meléndez claims that the sentencing court impermissibly

delegated its sentencing authority by allowing a probation officer

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to decide whether he might have to attend drug treatment. The

condition states that if Meléndez tests positive for drugs, "at the

discretion of the probation officer, [he shall] participate in a

substance abuse treatment program arranged and approved by the

probation officer until duly discharged by authorized program

personnel with the approval of the probation officer." He also

claims that since that condition was only included in the written

orders setting forth the terms of supervised release but was never

imposed as a condition at his sentencing hearing, the court

violated his Sixth Amendment right to be present at sentencing.

a. The Right to be Present at the Sentencing Hearing

Defendants have a right, guaranteed by the United States

Constitution and the Federal Rules of Criminal Procedure, to be

present during sentencing. See Fed. R. Crim. P. 43(a) ("[T]he

defendant must be present at . . . sentencing."). The Supreme

Court has stated that the constitutional aspect of this right is

"rooted to a large extent in the Confrontation Clause of the Sixth

Amendment," but that it also derives from the Fifth Amendment's Due

Process Clause. United States v. Gagnon, 470 U.S. 522, 526 (1985).

Although a defendant does not have a right to be present at every

minor stage in a trial, due process concerns are implicated

[w]henever [the defendant's] presence has a
relation, reasonably substantial, to the
fulness of his opportunity to defend against
the charge. . . . [T]he presence of a
defendant is a condition of due process to the
extent that a fair and just hearing would be

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 thwarted by his absence, and to that extent
only.

Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108

(1934)). Since the defendant's absence from a sentencing hearing

could threaten his ability to obtain a fair and just hearing on the

important issues of punishment and rehabilitation addressed at such

a hearing, the Court's due process concerns in Gagnon are relevant

to the sentencing stage of a trial. See Thompson v. United States,

495 F.2d 1304, 1306 (1st Cir. 1974) ("[T]he alleged failure of

petitioner to be present at his own sentencing is an error which

. . . affects seriously the fairness, integrity and public

reputation of judicial proceedings.").

As a consequence of the defendant's right to be present

at the sentencing hearing, we have previously stated, in dicta,

that "'[w]here . . . [a] district court's oral expression of its

sentencing rationale varies materially from its subsequent written

expression of that rationale, appellate courts have tended to honor

the former at the expense of the latter.'" United States v. Cali,

87 F.3d 571, 579 (1st Cir. 1996) (quoting dictum in United States

v. Muniz, 49 F.3d 36, 42 n.5 (1st Cir. 1995)). Nearly all of the

other circuits have reached similar conclusions, although there has

been some variation in the exact phrasing of this doctrine. See,

e.g., United States v. DeMartino, 112 F.3d 75, 78 (2d Cir. 1997)

("[I]f there is a variance between the oral pronouncement of

sentence and the written judgment of conviction, the oral sentence

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generally controls."); United States v. Faulks, 201 F.3d 208, 211

(3d Cir. 2000) ("A long line of cases provides that when the two

sentences are in conflict, the oral pronouncement prevails over the

written judgment."); United States v. Morse, 344 F.2d 27, 29 n. 1

(4th Cir. 1965) ("To the extent of any conflict between [a] written

order and [an] oral sentence, the latter is controlling."); United

States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) ("[W]hen

there is a conflict between a written sentence and an oral

pronouncement, the oral pronouncement controls."); United States v.

Becker, 36 F.3d 708, 710 (7th Cir. 1994)("If an inconsistency

exists between an oral and the later written sentence, the sentence

pronounced from the bench controls."); United States v. Glass, 720

F.2d 21, 22 n.2 (8th Cir. 1983) ("Where an oral sentence and the

written judgment conflict, the oral sentence controls."); United

States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993) ("'In cases

where there is a direct conflict between an unambiguous oral

pronouncement of sentence and the written judgment and commitment,

this [c]ourt has uniformly held that the oral pronouncement, as

correctly reported, must control.'") (quoting United States v.

Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974)); United States

v. Marquez, 337 F.3d 1203, 1207 n.1 (10th Cir. 2003) ("[A]n oral

pronouncement of sentence from the bench controls over other

written language . . . ."). Accordingly, we conclude that where

the conditions of supervised release announced at the sentencing

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hearing conflict in a material way with the conditions of

supervised release in the written sentencing order, the oral

conditions control.

The failure of the sentencing court to announce the drug

treatment condition at the sentencing hearing created a material

conflict between the written and oral sentencing orders. The court

imposed a potentially significant new burden on the Defendant--

permitting a probation officer to order him to attend a residential

treatment program if he failed a drug test--without giving him the

opportunity to object to the condition at the sentencing hearing.

This procedure violated Meléndez's right to be present at

sentencing. We must vacate the drug treatment condition on this

basis alone.

b. Delegation

There is another defect in the drug treatment condition

that we must discuss to avoid future problems. That defect

involves the amount of discretion that the court delegated to the

probation officer to decide whether Meléndez must participate in a

drug treatment program.

Article III of the Constitution vests responsibility for

resolving cases and controversies with the courts. As Justice

Kennedy observed during his tenure on the Ninth Circuit, this

responsibility requires "both the appearance and the reality of

control by Article III judges over the interpretation, declaration,

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and application of federal law" to maintain "the essential,

constitutional role of the judiciary." Pacemaker Diagnostic Clinic

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

1984) (Kennedy, J.). The judiciary's "essential role" can be

eroded just as easily through improvident delegation as through

interference by another branch, id.; therefore, separation of

powers forbids courts from delegating their Article III

responsibilities. However, "'[t]hat general principle does

not . . . prohibit courts from using nonjudicial officers to

support judicial functions, as long as that judicial officer

retains and exercises ultimate responsibility.'" United States v.

Allen, 312 F.3d 512, 515-16 (1st Cir. 2002) (quoting United States

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

In Allen, we upheld the sentencing court's imposition of

a condition of supervised release that required the defendant to

participate in a mental health treatment program "as directed by

the probation officer." Allen, 312 F.3d at 515. We determined

that the court itself retained ultimate sentencing authority by

requiring the defendant to undergo treatment and that it had merely

delegated "administrative details" to the probation officer. Id.

at 516. In reaching this holding, we contrasted the facts in Allen

with those in United States v. Kent, 209 F.3d 1073 (8th Cir. 2000),

in which the court struck down a condition that allowed the

probation officer to make the ultimate decision regarding whether

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the defendant would have to undergo treatment. Stated simply, the

probation officer in Allen was not deciding whether the defendant

had to attend counseling but how many sessions he had to attend.

See also United States v. Peterson, 248 F.3d 79, 84-85 (2d Cir.

2001) (concluding that delegation would be permissible regarding

scheduling and selection of mental health therapy sessions).

The sentencing court's delegation to the probation

officer of the treatment decision in this case contravenes our

ruling in Allen. The drug treatment condition states that if

Meléndez fails a drug test, he must participate in a treatment

program "at the discretion of the probation officer." Rather than

simply vesting the probation officer with the responsibility for

managing the administrative details of drug treatment, the court

granted the probation officer the authority to decide whether

Meléndez would have to undergo treatment after testing positive for

drugs.6 That treatment decision must be made by the court, either

at the time of sentencing,7 or later in response to a motion by the

6
We consider the determination of the type of program the
defendant must enroll in and when he may be discharged to be
administrative details that may be delegated to the probation
officer.
7
The United States Sentencing Commission treats the imposition
of drug treatment as a special condition of supervised release to
be imposed by the court. See U.S.S.G. § 5D1.3(d)(4) ("If the court
has reason to believe that the defendant is an abuser of narcotics,
other controlled substances or alcohol--[it may include] a
condition requiring the defendant to participate in a program
approved by the United States Probation Office for substance abuse
. . . .").

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probation officer, citing the positive drug test during the period

of supervised release and seeking a change in the conditions of

supervised release.8

2. The Drug Testing Requirement

Meléndez claims that the district court impermissibly

delegated its authority to a probation officer when it allowed the

officer to decide how many drug tests he would be required to

undergo. Since he failed to object to this aspect of his sentence

below, we review for plain error. Allen, 312 F.3d at 514.9

a. The Terms of the Order

The oral and written orders in these appeals conflict

regarding the amount of discretion the court delegated to the

probation officer. The written sentencing orders in both cases

stated: "The defendant shall refrain from any unlawful use of a

controlled substance and shall submit to one drug test within 15

8
Rule 32.1 of the Federal Rules of Criminal Procedure outlines
the steps that a probation officer must take to move for the
modification of a defendant's terms of supervised release following
a suspected violation. In pertinent part, the rule grants the
defendant the right to a hearing before a magistrate judge to
determine if there is probable cause to believe that he violated
the terms of supervised release, Fed. R. Crim. P. 32.1(a) & (b), as
well as the right to a hearing before a court to determine whether
his terms of supervised release should be modified. Fed. R. Crim.
P. 32.1(c).
9
The government and the defendant both framed the issue on
appeal as whether the district court impermissibly delegated the
determination as to the timing and number of drug tests. Neither
party, however, addressed the timing issue. Accordingly, we
address only the issue of whether the court impermissibly delegated
the determination of the number of drug tests.

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days of release on supervised release and at least two (2) periodic

drug tests thereafter, when so requested by the U.S. Probation

Officer." The oral orders did not include the provision requiring

"at least two (2) periodic drug tests therafter." The oral order

in Appeal No. 01-2386 stated: "The defendant shall refrain from

any unlawful use of controlled substances and shall submit to drug

testing within 15 days of release on supervised release and

thereafter whenever so required by the probation officer." The

oral order in 01-2397 was virtually identical. Therefore, pursuant

to the written orders, the probation officer had to require at

least two additional drug tests after the initial drug test within

fifteen days of release; however, under the oral orders, the

probation officer could forego any additional drug tests after the

initial test. Although there is a conflict between the oral and

written orders as to the number of drug tests required, we do not

have to decide if this is a material conflict requiring a ruling

that the oral order controls. See supra Section II.C.1.a. That is

so because both the oral and written orders suffer from the same

delegation infirmity.

b. Delegation

Both a statute and the United States Sentencing

Guidelines require the sentencing court to order 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

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at least 2 periodic drug tests thereafter (as determined by the

court) for use of a controlled substance." 18 U.S.C. § 3583(d)

(2000); U.S.S.G. § 5D1.3(a)(4) (emphasis added).10 The court may

only waive this requirement "if the defendant's presentence report

or other reliable sentencing information indicates a low risk of

future substance abuse by the defendant." 18 U.S.C. § 3563(a)(5);

U.S.S.G. § 5D1.3(a)(4). Meléndez claims that the inclusion of the

words "as determined by the court" means that the court, not the

probation officer, must decide how many tests a defendant should be

forced to undergo.

As noted, both the statute and the Guidelines state that

following the initial "drug test within 15 days of release," there

must be "at least 2 periodic drug tests thereafter (as determined

by the court) for use of a controlled substance." 18 U.S.C. §

3583(d) (2000); U.S.S.G. § 5D1.3(a)(4). If there is any ambiguity

in this text, it does not relate to the responsibility of the court

to make the determination referenced in the statute. That

responsibility could not be more explicit. But what is the

determination that the court must make? The determination assigned

to the court could either be the time frame for the two periodic

drug tests mandated by the statute, or the number of additional

10
The Guideline provision refers to release on "probation"
instead of on "supervised release"; however, the provision is
located in Section 5D1.3, which explicitly governs "Conditions of
Supervised Release."

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drug tests to be required beyond the initial drug test within 15

days of release and the two periodic tests required by the statute.

As a matter of language, the phrase "at least" establishes a

minimum and implies that a maximum remains to be determined. As a

matter of common sense, we do not think that Congress would require

courts to become involved in the scheduling of drug tests.

However, Congress could reasonably assign to courts the

responsibility for deciding the maximum number of drug tests to be

performed beyond the minimum of three mandated by Congress. See

United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998)

(holding that "18 U.S.C. § 3583(d) requires that the court

determine the number of drug tests to which the defendants must

submit") (emphasis in original). Indeed, there is symmetry in the

Congressional approach because both the statute and the Guidelines

give the court the authority to waive the testing requirement

completely upon a finding of "a low risk of future substance abuse

by the defendant." 18 U.S.C. § 3563(a)(5); U.S.S.G. § 5D1.3(a)(4).

To respond to concerns about a high risk of future substance abuse,

the court can also establish the maximum number of drug tests to be

performed.

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

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performed within that range. See United States v. Guy, 174 F.3d

859, 862 (7th Cir. 1999) (concluding that a condition requiring the

defendant to submit to "'random drug tests as ordered by the

Probation Office, not to exceed 104 tests per year'" did not

constitute plain error). The court may not, however, vest the

probation officer with the discretion to order an unlimited number

of drug tests.

The government, arguing that this plain text reading of

the statute and Guidelines should not control, requested that we

uphold the condition by following the reasoning of the court in

United States v. Smith, 45 F. Supp. 2d 914 (M.D. Ala. 1999). The

Smith Court evaluated a drug testing condition similar to the one

in this case and rejected the defendant's delegation claim.

The Smith Court rested its holding on three arguments:

1) the Violent Crime Control and Law Enforcement Act of 1994 (the

"1994 Act"), Pub. L. 103-322, which set forth the "(as determined

by the court)" language in Section 3583(d), only used that language

to describe the minimum of three tests that a court must impose

pursuant to the plain language of § 3583(d), and to give courts

discretion to reduce the minimum number of drug tests below three

without requiring courts to set the maximum number of tests; 2)

probation officers had the discretion to order drug tests prior to

the passage of the 1994 Act and nothing in that act manifested

Congress's intention to withdraw that discretion; and 3) limiting

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the probation officers' discretion could limit the number of tests

that a probationer is required to undergo and undermine the

efficiency of the supervised release system.

We frankly find Smith's reading of the statutory language

difficult to follow. The phrase "as determined by the court" is

unnecessary to achieve Congress's evident intent in Section 3583(d)

to require courts, in the ordinary case, to require a minimum of

three drug tests. Remove the language "as determined by the court"

from Section 3583(d) and the requirement that there be a minimum of

three drug tests is still there. If courts, in the exceptional

case, want to disregard the requirement of Section 3583(d) that

three drug tests be performed, and to order fewer or no tests, they

already have that authority pursuant to 18 U.S.C. § 3563(a)(5).11

Again, the "as determined by the court" language in Section 3583(d)

is unnecessary to achieve the purpose attributed to it by the Smith

Court. If this language is unnecessary to impose the requirement

of three drug tests as the norm or to give courts the discretion to

reduce or eliminate that minimum in exceptional cases, the "as

determined by the court" language can only mean that the court is

required to determine the maximum number of drug tests to be

performed beyond the three that are required. Otherwise, the

11
That provision states that the mandatory drug testing
condition "may be ameliorated or suspended by the court for any
individual defendant if the defendant's presentence report or other
reliable sentencing information indicates a low risk of future
substance abuse by the defendant . . . ." 18 U.S.C. § 3563(a)(5).

-23-
language is superfluous. See, e.g., Allende v. Shultz, 845 F.2d

1111, 1117 (1st Cir. 1988) ("'It is the duty of the court to give

effect, if possible, to every clause and word of a statute,

avoiding, if it may be, any construction which implies that the

legislature was ignorant of the meaning of the language it

employed.'") (quoting Montclair v. Ramsdell, 107 U.S. (17 Otto)

147, 152 (1883)).

The Smith Court says that the "as determined by the

court" language gives the court discretion to alter the maximum

number of drug tests but does not require it to do so, leaving

intact the authority of probation officers to determine the maximum

number of drug tests to be performed. This reading simply ignores

the plain language of Section 3583(d), which gives the courts the

responsibility to determine the maximum number of drug tests beyond

three that would be required. Courts cannot fulfill this

Congressionally-assigned responsibility by assigning it to

probation officers. To the extent that the Smith Court makes a

fair policy point that it is impractical to expect courts to decide

years before a defendant is released "exactly how many drug tests

would be required after the defendant's release from prison,"

Smith, 45 F. Supp. 2d. at 918, the authority of courts to set a

range of drug tests to be performed pursuant to the statutory

language meets this practical concern.

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 While it is true that, prior to the passage of the 1994

act, probation officers had discretion to order tests independently

of any directive from the court, see Smith, 45 F. Supp. 2d at 917

(noting that "probation officers had broad discretion to administer

drug tests, without specific authorization from the sentencing

court"), we conclude that Congress's refusal to include probation

officers in the section of the 1994 Act that became 18 U.S.C. §

3583(d) manifests its intent to alter the existing practice.

Congress explicitly referred to "the chief probation officer in

each district" in another section of the 1994 Act and conferred

upon those officers the responsibility of establishing a drug

testing program. See Section 20414 (codified at 18 U.S.C. §

3608).12 Congress clearly understood the role of probation officers

in providing for and administering drug programs, yet Congress

included no reference to probation officers in the drug testing

language of 18 U.S.C. 3583(d); instead, it referred only to courts

12
That provision states:
The Director of the Administrative Office of the United
States Courts, in consultation with the Attorney General
and the Secretary of Health and Human Services, shall,
subject to the availability of appropriations, establish
a program of drug testing of Federal offenders on
post-conviction release. The program shall include such
standards and guidelines as the Director may determine
necessary to ensure the reliability and accuracy of the
drug testing programs. In each judicial district the
chief probation officer shall arrange for the drug
testing of defendants on post-conviction release pursuant
to a conviction for a felony or other offense described
in section 3563(a)(4).
18 U.S.C. § 3608 (2000).

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determining the number of drug tests. See Keene Corp. v. United

States, 508 U.S. 200, 208 (1993) ("'[W]here Congress includes

particular language in one section of a statute but omits it in

another . . . [,] it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.'") (citation omitted).

Furthermore, the general statutory provisions in the

Sentencing Reform Act of 1984, P.L. 98-473,§ 212(a)(2), 98 Stat.

2002 (codified at 18 U.S.C. § 3603), relied on by the Smith Court

as evidence that Congress gave probation officers the authority to

require drug tests, were superceded by the more specific provision

in the 1994 Act that explicitly gave that power to courts.

According to the Smith Court, three provisions in the Sentencing

Reform Act grant probation officers authority to determine the

maximum number of drug tests to be performed:

Section 3603 . . . provides that probation
officers shall "keep informed, to the degree
required by the conditions specified by the
sentencing court, as to the conduct and
condition of . . . a person on supervised
release, who is under his supervision," 18
U.S.C.A. § 3603(2), "use all suitable methods,
not inconsistent with the conditions specified
by the court, to aid . . . a person on
supervised release who is under his
supervision, and to bring about improvements
in his conduct and condition," 18 U.S.C.A. §
3603(3), and "keep informed concerning the
conduct, condition, and compliance with any
condition of probation ... of each probationer
under his supervision." 18 U.S.C.A. § 3603(7).
These provisions clearly grant probation

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 officers significant discretion in the means
they use to accomplish a court's order.

Smith, 45 F. Supp. 2d at 919. Notably, these responsibilities are

framed in general terms, and none of the cited provisions

explicitly reference drug testing. Moreover, the specific drug

testing language of 18 U.S.C. § 3583(d) post-dates the Sentencing

Reform Act by ten years. See Natural Res. Def. Council, Inc. v.

E.P.A., 824 F.2d 1258, 1278 (1st Cir. 1987) ("[T]he most recent and

more specific Congressional pronouncement will prevail over a

prior, more generalized statute."). We reject the government's

invitation to use the general language of the 1984 act as a

justification for ignoring Section 3583(d)'s plain, explicit text.

To be sure, there is some force to the Smith Court's

concerns about the policy advantages of a supervised release system

that allows probation officers to decide the extent of drug

testing. Legislative history does not reveal why Congress chose to

go in a different direction. But we cannot be faithful to the

Congressional choice if we allow any policy reservations to control

our reading of statutory language. By its plain terms, Section

3583(d) 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.13

13
We entertained the possibility in United States v.
Merric, 166 F.3d 406, 409 (1st Cir. 1999) that a court could

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 Since we conclude that the sentencing court's drug

satisfy its responsibility under a statutory provision stating
"[t]he length of time over which scheduled [fine] payments will be
made shall be set by the [sentencing] court," 18 U.S.C. §
3572(d)(2), by delegating that responsibility to a probation
officer, see id. ("conceivably, 'set' could include delegation").
However, we rejected that possibility because "it is the inherent
responsibility of the judge to determine matters of punishment and
this includes final authority over all payment matters." Id.
Other courts reviewing similar language have held that Congress's
use of the word "set" precludes delegation. United States v.
McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001) ("We interpret this
statement to require the district court to set a detailed payment
schedule at sentencing."). We do not have to rule out the
possibility that in some statutory settings phrases such as "set by
the court" or "determined by the court" could include delegation to
conclude here that the phrase "as determined by the court" does not
permit delegation. As noted, prior to the enactment of Section
3583(d) as part of the Violent Crime Control and Law Enforcement
Act of 1994, probation officers already had the authority to
establish the maximum number of drug tests to be performed. If
Congress wanted the courts to delegate that responsibility to
probation officers, there was no need for Section 3583(d).
There is an instructive precedent in Congress's enactment in
1996 of the Mandatory Victims Restitution Act. In that act,
Congress amended general pre-existing language when it required
courts to "set" the restitution payment schedule. The Eleventh
Circuit found that amendment to be significant on the delegation
issue:
In contrast, the predecessor statute to the MVRA, the
Victims and Witness Protection Act of 1982, provided that
the court could "require that [the] defendant make
restitution ... within a specified period or in specified
installments," but did not expressly state that the court
must set the terms of repayment in the restitution order.
By contrast, the plain language of the MVRA expressly
precludes delegation of repayment scheduling to the
probation office by providing that "the length of time
over which scheduled payments will be made shall be set
by the court ...." 18 U.S.C. § 3572(d)(2). This new
language has removed any ambiguity that might have
existed in the predecessor statute regarding the
permissibility of delegating authority to determine the
installment schedule.
United States v. Prouty, 303 F.3d 1249, 1254 n.3 (11th Cir. 2002).

-28-
testing condition delegated its sentencing authority in violation

of a clear Congressional mandate, and that this disregard of the

Congressional mandate was plain error, we must vacate the drug

testing provisions in Meléndez's sentences and remand for re-

sentencing.

3. Disclosure of Financial Information

The sentencing court included a special condition in its

written orders that required Meléndez to "provide the U.S.

Probation Officer access to any financial information upon request

and produce evidence to the effect that annual income tax returns

have been duly filed within his place of residence as required by

law." The court did not mention that condition at the first

hearing, Appeal No. 01-2386, but it did mention it at the second.

Meléndez claims that the court erred substantively, since neither

conviction warranted the inclusion of this condition, and

procedurally since it failed to include the condition in the oral

order in Appeal No. 01-2386. We will first evaluate whether the

sentencing court substantively abused its discretion by including

this condition.14 An infirmity there would moot Meléndez's

procedural claim.

a. Substantive Concern

Guideline § 5D1.3(d) states as follows:

14
We are reviewing Meléndez's substantive claim for abuse of
discretion because he did not have the opportunity to object to
this provision in Appeal No. 01-2386.

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 The following "special" conditions of
supervised release are recommended in the
circumstances described and, in addition, may
otherwise be appropriate in particular cases:

...
3) Access to Financial Information
If the court imposes an order of restitution,
forfeiture, or notice to victims, or orders
the defendant to pay a fine--a condition
requiring the defendant to provide the
probation officer access to any requested
financial information.

U.S.S.G. § 5D1.3(d)(3).

The court, after taking Meléndez's financial condition

into account, did not include a fine as part of his sentence and

did not order him to pay restitution; therefore, he does not meet

the listed conditions. That does not mean, however, that the court

was not justified in imposing the disclosure requirement. The

Guidelines allow such conditions when they are "appropriate in

particular cases." Id. "A sentencing judge has broad discretion

to impose special conditions of release that 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. Phaneuf 91 F.3d 255, 263 (1st Cir. 1996).

According to the stipulated statement of facts

accompanying the plea agreement in Appeal No. 01-2386, Meléndez was

responsible for financing the purchase of twenty-five kilograms of

cocaine at a cost of $300,000. In Appeal No. 01-2397, the

-30-
passenger he dropped off at the airport was found with $36,000 in

cash in a bag. Forcing Meléndez to provide financial records to

the probation officer would assist the officer in detecting whether

he has returned to his criminal ways. As we recently observed when

we upheld a similar condition imposed under similar circumstances:

The special condition allows the court,
through the probation department, to monitor
the appellant's earnings and identify any
potential disparity between his income and his
lifestyle. Relatedly, it serves to deter the
appellant from engaging in schemes similar to
the crimes of conviction once he is released
from prison by forcing him to account for his
income.

United States v. Mansur-Ramos, 348 F.3d 29, 33 (1st Cir. 2003).

Given the circumstances of this case, we conclude that the district

court's imposition of this condition did not constitute an abuse of

discretion.

b. Right to Be Present at Sentencing

Meléndez also claims that the court violated his right to

be present during sentencing by not including the special financial

disclosure condition in the oral sentencing order for the first

sentence that the court imposed on August 21. Assuming arguendo

that the court's failure to include the disclosure condition in its

oral sentencing order violated Meléndez's right to be present at

sentencing, we conclude that this error was harmless.

The court included the financial disclosure requirement

in its oral sentencing order for Appeal No. 01-2397. Meléndez had

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the opportunity to either object or to provide additional arguments

at that time, but he failed to do so. Given that failure, he would

not have objected if the court noted the same requirement at the

hearing for Appeal No. 01-2386, held immediately prior to the

second sentencing hearing. The court's error, therefore, was

harmless. See Rushen v. Spain, 464 U.S. 114, 119 n.2 (1983)

(noting that "right to be present" claims are subject to harmless

error analysis). Accordingly, we affirm the inclusion of the

special financial disclosure condition in Appeal No. 01-2386.

III.

For the foregoing reasons, we VACATE the supervised

release conditions regarding drug treatment and drug testing in

both appeals as well as the four year supervised release term in

Appeal No. 01-2397; we ORDER modification of the judgment in Appeal

No. 01-2397; we AFFIRM the remainder of the sentences; and we

REMAND for re-sentencing in both appeals consistent with this

opinion.

SO ORDERED.

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