United States Court of Appeals
For the First Circuit
No. 03-1918
UNITED STATES,
Appellee,
v.
JOEL PADILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
George F. Gormley and Christie M. Charles on brief for the
appellant.
Michael J. Sullivan, United States Attorney, and Virginia M.
Vander Jagt, Assistant U.S. Attorney, on brief for appellee.
December 23, 2004
Per Curiam. Following the conviction of defendant-
appellant Joel Padilla for being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1), the district court sentenced him to
imprisonment and a term of supervised release. On appeal, Padilla
advances three claims, one of which has merit and, under existing
circuit precedent, justifies modification of his sentence. The
other two claims lack merit. We consider the three claims
sequentially.
Denial of Motion to Dismiss
Padilla contends that the district court erred in denying
his motion to dismiss on Commerce Clause grounds. That motion was
based on his reading of the decisions in United States v. Lopez,
514 U.S. 549 (1995), and United States v. Emerson, 270 F.3d 203
(5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). We are not
free to revisit the Lopez claim because this court already has
rejected it in prior cases. See, e.g., United States v. Colon
Osorio, 360 F.3d 48, 53 (1st Cir. 2004).
We also reject Padilla's claim that Emerson provides a
basis for dismissal on Commerce Clause grounds. In doing so, we
adopt the rationale of the court that spawned the Emerson decision.
See United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003)
(rejecting Emerson challenge in the context of a section 922(g)(1)
prosecution), cert. denied, 124 S. Ct. 2429 (2004).
Refusal to Give Jury Instruction
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Padilla claims that the district court abused its
discretion when it declined to give a requested instruction
addressing whether the gun he possessed — which lacked a firing pin
assembly and magazine — was a "firearm" within the meaning of the
statute of conviction. See 18 U.S.C. § 921(a)(3) (defining the
term). We discern no abuse of discretion.
The short of the matter is that the law amply justifies
the instruction actually given by the lower court. See, e.g.,
United States v. Brown, 117 F.3d 353, 355 (7th Cir. 1997)
(construing the corresponding sentencing guideline definition and
collecting cases). Padilla has cited no relevant legal authority
in support of a contrary position.
Delegation of Sentencing Authority
On appeal, Padilla asserts for the first time that the
district court erred when it allowed the probation officer to
determine the number of drug tests he must undergo during his
supervised release term. The government confesses error; it
concedes that this was an improper delegation of judicial
authority. See United States v. Meléndez-Santana, 353 F.3d 93,
103, 106 (1st Cir. 2003) (construing 18 U.S.C. § 3583(d)). It
nonetheless suggests that we need not correct the unpreserved error
because it neither constitutes a miscarriage of justice nor
seriously affects the integrity of the proceedings.
-3-
This argument is foreclosed by our decision in Meléndez-
Santana, in which a panel of this court corrected the same kind of
unpreserved error without conducting the usual plain error review.
See id. at 106 (vacating drug testing condition and remanding for
resentencing because 18 U.S.C. § 3583(d) "requires courts to
determine the maximum number of drug tests to be performed"); see
also Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349 (1st Cir.
2004) (explaining that in a multi-panel circuit, newly constituted
panels are bound by prior panel decisions); United States v. Wogan,
938 F.2d 1446, 1449 (1st Cir. 1991) (same). The fact that there
were multiple errors in Meléndez-Santana, making resentencing
necessary in any event, is not sufficient to distinguish that
decision.
In the alternative, the government invites us to limit
the number of drug tests to the minimum (three) required by 18
U.S.C. § 3583(d). To this end, it cites our recent decisions in
United States v. Tulloch, 380 F.3d 8, 10 & n.1 (1st Cir. 2004) (per
curiam), and United States v. Lewandowski, 372 F.3d 470, 471 (1st
Cir. 2004) (per curiam). Those decisions are inapposite here, and,
thus, we decline the invitation.
In Lewandowski, we construed a supervised release
condition mandating "at least" three drug tests to require only
three tests. See id. There, however, the district court had not
expressly delegated to the probation officer the power to decide
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whether to administer more tests. Id. We nonetheless adopted a
limiting construction in order to resolve an ambiguity in the
court's order and ensure that it could not be interpreted to
contain an implied delegation of such authority. Id.
Tulloch is distinguishable for a different reason.
There, we directed the district court to amend one defendant's
supervised release condition, which mandated only a single drug
test, to conform to the statutory requirement that no fewer than
three tests be performed. See Tulloch, 380 F.3d at 10 n.1. With
regard to the other defendant, we instructed the court to conform
its written judgment to its previously announced oral judgment
(which set the number of drug tests at three). See id. The case
at hand does not share the central characteristics of either
Lewandowski or Tulloch.
Of course, Padilla has not objected to the government's
suggestion that we adopt a limiting construction here, and,
conceivably, that might represent a reasonable and efficient way to
correct an express misdelegation of this kind. But that judgment
should be made on the ground, as it were, by the sentencing court.
On this record, which indicates that Padilla regularly used
marijuana for some period of time prior to his arrest for the
offense of conviction, we prefer to let the sentencing court decide
how to rectify the error. Accordingly, we vacate the challenged
condition and remand to the district court for further proceedings.
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If it so chooses, the court may amend its sentencing judgment to
require three drug tests or, after holding a new hearing at which
Padilla would have the right to appear with counsel, may specify
some higher maximum number of drug tests.
We vacate the sentence to the extent it improperly
delegates the district court's authority to determine the maximum
number of drug tests required during the appellant's supervised
release term. We remand to the district court for further action
consistent with this opinion. In all other respects, we affirm the
conviction and sentence.
— Concurring Opinions Follow —
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CAMPBELL, Senior Circuit Judge and SELYA, Circuit Judge,
concurring in the judgment. We agree that United States v.
Meléndez-Santana, 353 F.3d 93 (1st Cir. 2003), controls the
disposition of this case and that, under its principal holding, an
improper delegation of the authority to set certain drug-testing
conditions occurred. See id. at 106. We do not question the
soundness of that holding. We write separately, however, to
express our discomfiture with the approach that the Meléndez-
Santana panel took in determining what consequences attended the
delegation error.
Although the Meléndez-Santana panel gave lip service to
plain error review, it vacated the challenged portion of the
judgment upon the finding of error simpliciter, without undertaking
any further analysis. See id. In so doing, the panel effectively
treated the trial court's mistake as one of "the limited class of
structural errors" that warrant correction regardless of other
considerations. United States v. Cotton, 535 U.S. 625, 632 (2002)
(internal quotation marks omitted).
In our view, that approach — which portends automatic
reversal of every delegation error — is incorrect. A finding of
structural error assumes the existence of a "defect affecting the
framework within which the trial proceeds, rather than simply an
error in the trial process itself." Arizona v. Fulminante, 499
U.S. 279, 310 (1991); see also United States v. Perez-Ruiz, 353
-7-
F.3d 1, 17 (1st Cir. 2003). And some (perhaps most) structural
errors deserve careful, individualized attention. The Supreme
Court recently stated that, even with respect to preserved errors,
only "certain structural errors undermining the fairness of a
criminal proceeding as a whole . . . require[] reversal without
regard to the mistake's effect on the proceeding." United States
v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004) (emphasis
supplied). As that passage indicates, the sub-category of
"automatic reversal" errors has been reserved for the most
pervasive and debilitating constitutional deprivations, such as a
total withholding of the right to counsel at trial, a denial of the
right to self-representation at trial, and the specter of a biased
judge presiding over a case. See Fulminante, 499 U.S. at 309-10
(collecting cases). Such errors affect "[t]he entire conduct of
the trial from beginning to end." Id. at 309.
In contrast, a delegation error of the kind at issue here
(and in Meléndez-Santana) affects only a single aspect (drug
testing on supervised release) of a single phase (sentencing) of a
criminal proceeding. Such a bevue, although serious, simply does
not belong in the select company of structural errors. Cf. Cotton,
535 U.S. at 632-33 (finding that, in the context of sentencing, a
particular Apprendi error did not sink to the level of a structural
defect); Perez-Ruiz, 353 F.3d at 17 (similar). Because the
delegation error neither infects the criminal proceeding as a whole
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nor implicates its fundamental fairness, such an error is non-
structural. This means that, even when preserved, relief for such
an error must be "tied in some way to prejudicial effect, and the
standard phrased as 'error that affects substantial rights,' used
in [Criminal] Rule 52, has previously been taken to mean error with
a prejudicial effect on the outcome of a judicial proceeding."
Dominguez Benitez, 124 S. Ct. at 2339.
Here, as in Meléndez-Santana, the defendant failed to
object at the time of sentencing to the improper delegation of
judicial authority. Hence, this non-structural error arguably was
waived and, if so, it cannot be resurrected on appeal. See United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ("A party
waives a right when he intentionally relinquishes or abandons
it."). Even were we to take the view most favorable to the
defendant and assume that his procedural default at sentencing was
the result of oversight or inadvertence, the delegation error would
have to be regarded as forfeited and, as such, would engender plain
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error review.1 See id.; United States v. Vazquez-Molina, ___ F.3d
___, ___ (1st Cir. 2004) [No. 03-2655, slip op. at 7-8].
The plain error standard of review presents a formidable
barrier to a defaulting party. To survive plain error review, a
litigant must demonstrate "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); accord United
States v. Olano, 507 U.S. 725, 732 (1993). The Meléndez-Santana
panel opted for automatic reversal and abjured any application of
this four-part algorithm. Thus we are constrained by that
precedent to forgo its application here. See United States v.
Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) (explaining that in a
multi-panel circuit, newly constituted panels are bound by prior
panel decisions).2
1
Even if the unpreserved delegation error were structural (a
proposition that we reject), plain error review would still apply.
See Johnson v. United States, 520 U.S. 461, 466 (1997) (holding
that Criminal Rule 52(b), requiring the application of plain error
analysis to forfeited claims, governs direct appeals from criminal
judgments premised upon unpreserved structural errors); United
States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 47 n.5 (1st Cir.
2004) (relying on Johnson in noting that "[e]ven if this were a
structural error, [the defendant] would still not be entitled to
'automatic reversal' because he failed to preserve his objection").
2
While the Wogan rule admits of a few modest exceptions, see
Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995),
none applies here.
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In sum, we deem ourselves bound, on the authority of
Meléndez-Santana, to join in the opinion vacating the challenged
drug-testing order. Were we at liberty to undertake full-blown
plain error review, however, we doubt very much that Padilla could
prevail; the drug-testing order here at issue appears neither to
affect the defendant's substantial rights nor to impugn the
integrity of the proceedings below.3 Because this is so and
because we believe, with all due respect, that Meléndez-Santana is
wrongly decided both with regard to its treatment of the delegation
error as structural and with regard to its conclusion that such
errors warrant automatic reversal, we write separately.
We add, moreover, that the problem we have encountered
here is likely to be a recurrent one. Equally as important, the
question of which errors are structural and which are not is one of
great salience in the criminal law. We would welcome an
opportunity to have the full court address this issue and we urge
the government to give serious consideration to filing a petition
for en banc review. Unless and until this aspect of the Meléndez-
Santana decision is corrected, however, we must concur in the
judgment automatically vacating the challenged condition and
remanding for resentencing.
— Second concurring opinion follows —
3
On much the same basis, we doubt that the discerned error in
Meléndez-Santana could have withstood full-blown application of the
test for plain error.
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TORRUELLA, Circuit Judge, concurring. Although I believe
that Meléndez-Santana was correctly decided, I write separately to
address some of my brethren's discomfiture about the structural
error rationale and plain error review in that case.
As we noted in Meléndez-Santana, "Article III of the
Constitution vests responsibility for resolving cases and
controversies with the courts. . . . [T]his responsibility requires
'both the appearance and the reality of control by Article III
judges over the interpretation, declaration, and application of
federal law' to maintain 'the essential, constitutional role of the
judiciary.'" 353 F.3d at 101 (citing Pacemaker Diagnostic Clinic
of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir.
1984)(Kennedy, J.)). An "improvident delegation" of judicial
authority to a probation officer can erode the judiciary's
"essential role"; thus, separation of powers forbids courts from
delegating their Article III responsibilities. Id. Although this
"general principle does not . . . prohibit courts from using
nonjudicial officers to support judicial functions," courts must
"retain[] and exercise[] ultimate responsibility." Id. (internal
citations omitted). We therefore held that the court improvidently
delegated its judicial function in Meléndez-Santana because,
instead of simply charging the probation officer with managing the
administrative details of defendant's drug treatment, the court
delegated its judicial function of deciding whether defendant had
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to undergo treatment. Id. at 101-02. We also held that given the
clear Congressional mandate of 18 U.S.C. § 3583(d), the court
plainly erred in delegating to the probation officer the discretion
to order an unlimited number of drug tests. That statute "requires
courts to determine the maximum number of drug tests to be
performed beyond the statutory minimum of three, with probation
officers permitted to decide the number of tests to be performed
within the range established by the court." Id. at 106.
Although my brethren agree with Meléndez-Santana's
principal holding -- that the district court in that case
improperly delegated its authority to set certain drug testing
conditions -- they are chagrined by the court's approach. That is,
they fault the court for finding "structural error" and for giving
"lip service to plain error review . . . without undertaking any
further analysis."
However, if my brethren agree with Meléndez-Santana's
holding -- that Section 3583 clearly imposes on the courts the duty
to determine the maximum number of drug tests to be performed --
then the statutory grant to the court must be read as exclusive
because "the imposition of a sentence, including any terms of
probation or supervised release, is a core judicial function."
United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995); see
also Ex parte United States, 242 U.S. 27, 41 (1916) (imposition of
punishment is a judicial function); Whitehead v. United States, 155
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F.2d 460, 462 (6th Cir. 1946) ("[f]ixing the terms and conditions
of probation is a judicial act which may not be delegated"), cert.
denied, 329 U.S. 747 (1946). Unlike my brethren, I believe that
delegating core sentencing decisions, like the one at issue here,
infects the criminal proceeding as a whole and implicates its
fundamental fairness. See, e.g., United States v. Mohammad, 53
F.3d 1426, 1439 (7th Cir. 1995) (stating that the delegation of a
"serious sentencing decision from a judicial officer to another
deprives the defendant of a substantial right" and constitutes a
"serious structural defect" affecting the integrity of judicial
proceedings). In the context of determining the manner in which
restitution is to be paid, for example, a majority of our sister
courts have prohibited the delegation of core judicial functions to
probation officers. See United States v. Porter, 41 F.3d 68 (2nd
Cir. 1994) (sentencing court cannot delegate decisions as to the
scheduling and size of restitution installment payments); United
States v. Graham, 72 F.3d 352, 357 (3d Cir. 1995) (district court
"improperly delegated to the probation officer the determination of
the timing of the restitution installment payments"); United States
v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) ("making decisions
about the amount of restitution . . . is a judicial function and
therefore is non-delegable"); United States v. Albro, 32 F.3d 173
(5th Cir. 1994) (although a court is free to receive and consider
recommendations from probation officer, the court itself must
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designate the timing and amount of payments); United States v. Gio,
7 F.3d 1279, 1292-93 (7th Cir. 1993) (district court may not, after
fixing the amount of restitution, delegate ultimate authority for
determining amounts of installments to probation officer); United
States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001) (district
court must set the manner of payments and length of time over which
restitution payments shall be made); United States v. Overholt, 307
F.3d 1231, 1255 (10th Cir. 2002) (delegation to the Bureau of
Prisons and probation officer authority to set payment schedule of
restitution is "improper and constitutes plain error").
Under the same analysis, and contrary to my brethren's
views, I believe that similar "improvident delegation" of a
sentencing decision is plainly erroneous per se. That is, allowing
a federal court to delegate its Article III responsibilities,
especially core sentencing decisions like the one at issue here,
both affects a "defendant's substantial rights" and "seriously
impairs the fairness, integrity, or public reputation of judicial
proceedings." See, e.g., United States v. Pandiello, 184 F.3d 682,
688 (7th Cir. 1999) (permitting a judge to delegate authority over
a "core sentencing decision . . . deprives the defendant of a
substantial right and constitutes a serious structural defect
affecting the integrity of the judicial proceedings") (internal
quotation marks omitted); Albro, 32 F.3d at 174 n. 1 (concluding
that "the unauthorized delegation of sentencing authority from an
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Article III judicial officer to a non-Article III official affects
substantial rights and constitutes plain error" in the context of
restitution payments); Overholt, 307 F.3d at 1255 (holding that
delegation to probation officer "is improper and constitutes plain
error").
In sum, I believe that Meléndez-Santana was correctly
decided. Delegating core sentencing functions, such as the one at
issue here, erodes the judiciary's role under Article III and, as
such, constitutes plain error by violating defendant's substantial
rights and affecting the reputation of judicial proceedings.
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United States v. Padilla
Court: Court of Appeals for the First Circuit
Date filed: 2004-12-23
Citations: 415 F.3d 211
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