United States v. Vega-Ortiz

United States Court of Appeals
For the First Circuit

No. 03-2464

UNITED STATES OF AMERICA,

Appellee,

v.

RAMON VEGA-ORTIZ

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Selya, Dyk,* and Howard, Circuit Judges.

Ramon Garcia Garcia for appellant.
H.S. Garcia, United States Attorney,and Nelson Pérez-Sosa,
Senior Appellate Attorney, for appellee.

October 7, 2005

*Of the United States Court of Appeals of the Federal
Court, sitting by designation.
 HOWARD, Circuit Judge. Ramon Vega-Ortiz pleaded guilty

to one count of conspiracy to distribute heroin, cocaine, cocaine

base, and marijuana in violation of 21 U.S.C. §§ 841(a)(1)(A) &

846. At the conclusion of Vega-Ortiz's sentencing hearing, the

district court imposed a sentence of 120 months of imprisonment.

In addition, the court announced that it would impose a five-year

period of supervised release with the following conditions:

[While on supervised release] the defendant
shall not commit another federal, state or
local crime and observe the standard
conditions of supervised release recommended
by the United States Sentencing Commission
and adopted by this Court. The defendant
shall not unlawfully possess controlled
substances and submit to a drug test within
fifteen days of release, and thereafter
whenever so requested by the U.S. Probation
Officer. If any such samples detect
substance abuse, the defendant shall
participate in a substance abuse program,
arranged and approved by the probation
officer until duly discharged by authorized
personnel with the approval of the probation
officer.

Vega-Ortiz did not object to these conditions.

In due course, the court reduced Vega-Ortiz's sentence

to a written judgment. See Fed. R. Crim. P. 32(k)(1). The

written judgment was identical to the oral pronouncement of

sentence, except for the portion concerning drug testing. In this

respect, the judgment read: "The defendant shall not illegally

possess controlled substances and shall submit to a drug test

within fifteen days of release on supervised release, at least two

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periodic tests thereafter and whenever required by the probation

officer." (Emphasis supplied).

On appeal, Ortiz challenges the drug-testing condition

on two grounds. First, he argues that the district court

committed plain error by delegating to the probation officer the

authority to determine the number of drug tests he must undergo.

Second, he complains that the court's pronouncement of sentence

conflicts with the written judgment insofar as only the written

judgment requires that he submit to at least three drug tests.

According to Vega-Ortiz, the oral pronouncement of sentence must

control in these circumstances. We consider these arguments in

turn.

In United States v. Meléndez-Santana, 353 F.3d 93, 106

(1st Cir. 2003), a panel of this court held that the district

court committed plain error by delegating to the probation officer

the authority to establish the defendant's drug-testing regimen

while on supervised release. In light of this holding, the

government conceded that the delegation to the probation officer

in this case was plain error. The government has taken this

position in several other post Meléndez-Santana appeals, and we

have accepted these concessions. 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).

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 After the filing of appellate briefs in this case,

however, the law of the circuit changed. Sitting en banc, the

court abrogated the plain-error holding of Meléndez-Santana. See

United States v. Padilla, 415 F.3d 211, 220-23 (1st Cir. 2005) (en

banc). While not disturbing the ruling that a district court errs

by delegating to the probation officer the authority to establish

the number of required drug tests, see id. at 217-18, the en banc

court held that defendants who fail to preserve the Meléndez-

Santana issue are not automatically entitled to plain error relief

but must show that the error "affects substantial rights" and

"impugn[s] the fairness, integrity or public reputation of the

criminal proceeding as a whole," id. at 220-23.

Given the controlling law at the time this case was

briefed, we do not fault the government for its concession. But

that does not mean that we are required to accept it. See United

States v. Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004) ("The

court of appeals is not obligated to accept legal propositions

even when the parties are agreed, merely because there is no

adversary dispute or presentation on the particular issue.").

"While concessions are often useful to a court, they do not, at

least as to questions of law that are likely to affect a number of

cases in the circuit beyond the one in which the concession is

made, relieve this Court of the duty to make its own resolution of

such issues." Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005).

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 There are currently several cases pending before this

court in which the government has conceded plain error based on an

error of the sort identified in Meléndez-Santana. But after

Padilla, there is no question that an unpreserved Meléndez-Santana

error cannot automatically ground a sentence vacatur. In these

circumstances, it is appropriate to ignore the government's

concession and to follow our clear precedent. See United States

v. Sánchez-Berríos, --F.3d--, 2005 WL 2277629, at *10 (1st Cir.

Sept. 20, 2005) (declining, post-Padilla, to accept government's

concession of plain error for Meléndez-Santana violation). For

the reasons stated in Padilla, 415 F.3d 220-23, the delegation

error alleged by Vega-Ortiz does not satisfy either the third or

fourth prongs of the plain-error standard and thus does not

constitute plain error.

Vega-Ortiz next claims that the condition in the written

judgment requiring that he submit to a minimum of three drug tests

does not govern because the court did not state this condition at

the sentencing hearing. A criminal defendant has a right to be

present at his own sentencing. See Thompson v. United States, 495

F.2d 1304, 1306 (1st Cir. 1974). A consequence of this right is

that, "where 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

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F.3d 571, 579 (1st Cir. 1996). Thus, we must decide whether the

district court's failure to articulate the three-drug-test

condition in pronouncing Vega-Ortiz's sentence constitutes a

material conflict with the written judgment.

Our decision in United States v. Tulloch, 380 F.3d 8

(1st Cir. 2004), governs. In Tulloch, we held that a written

judgment requiring a minimum of three drug tests as a condition of

supervised release applied even though the pronouncement of

sentence did not include the requirement. See id. at 11-14. We

reasoned that the condition of a minimum of three drug tests is

required by statute, 18 U.S.C. § 3583(d), and is a mandatory

condition of supervised release under the Sentencing Guidelines,

U.S.S.G. § 5D1.3(a)(4). See Tulloch, 380 F.3d at 11-12.

Therefore, the defendant was on "constructive notice" that, by

receiving a period of supervised release as part of his sentence,

he would necessarily be required to submit to at least three drug

tests. Id. at 12.1

So too here. At the sentencing hearing, the district

court told Vega-Ortiz that the conditions of his supervised

release would be governed by the standard conditions set forth in

the Sentencing Guidelines. Vega-Ortiz was therefore on

1
We recognized that the district court can reduce the minimum
number of drug tests, see 18 U.S.C. § 3563(a)(5), but that because
the defendant was on constructive notice of the drug test
requirement, it was his responsibility to request the court for a
reduction, see Tulloch, 380 F.3d at 12-13.

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constructive notice that the condition of a minimum of three drug

tests presumptively would apply. See id. The written judgment

spelled out the standard conditions in detail, but this was only

a clarification of the pronouncement of sentence, and not a

material conflict. See id. (citing United States v. Truscello,

168 F.3d 61, 63 (2d Cir. 1999)).

Affirmed.

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