U.S. v. Padilla

• Decision Date: 25 July 2005
• Docket Number: No. 03-1918.,03-1918.
• Citation: 415 F.3d 211
• Parties: UNITED STATES of America, Appellee, v. Joel PADILLA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

415 F.3d 211

UNITED STATES of America, Appellee, v. Joel PADILLA, Defendant, Appellant.

No. 03-1918.

United States Court of Appeals, First Circuit.

Heard June 6, 2005.

Decided July 25, 2005.

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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.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, TORRUELLA, SELYA, LYNCH, LIPEZ and HOWARD, Circuit Judges.

OPINION EN BANC

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 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.

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.

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:

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 considerations." Id. (quoting United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (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.

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, 73 S.Ct. 656, 97 L.Ed. 986 (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...