U.S. v. Stephens

• Citation: 424 F.3d 876
• Decision Date: 02 September 2005
• Docket Number: No. 04-50170.,04-50170.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. STEPHENS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

424 F.3d 876

UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. STEPHENS, Defendant-Appellant.

No. 04-50170.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2005.

Filed September 2, 2005.

COPYRIGHT MATERIAL OMITTED

Alice Fontier, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant Antonio Damon Stephens.

Carol C. Lam, United States Attorney, Roger W. Haines, Jr., Assistant United States Attorney, Chief Appellate Section Criminal Division, Carol M. Lee, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-00-03718.

Before: REINHARDT and CLIFTON, Circuit Judges, and WEINER, District Judge.^*

WEINER, Senior District Judge.

I.

Antonio Damon Stephens appeals the sentence imposed by the district court upon the revocation of his supervised release. Stephens was on supervised release as part of his sentence following the entry of a guilty plea to importation of marijuana. The issue we confront in this appeal is whether the district court improperly delegated its authority to determine the number, frequency, timing, and manner of substance abuse testing and treatment to which Stephens would be subjected during the term of his supervised release. We hold that the requirement that Stephens participate in substance abuse treatment, including in-treatment drug testing, was an order of the district court. Thus, there was no improper delegation of Article III judicial authority to the probation department as to whether Stephens would participate. We also hold that, as part of a court ordered treatment program, a defendant may be required to undergo regular drug testing, in addition to the number of tests that are ordered as part of his supervised release. However, the testing condition, as imposed here, was an improper delegation of the district court's duty to set the maximum number of non-treatment drug tests to which Stephens would be subjected during the course of his supervised release. Accordingly, we vacate the sentence and remand.

II.

Stephens was indicted on December 6, 2000, on one count of importing approximately 45.25 kilos of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He pled guilty to count 1 of the indictment and was sentenced on June 12, 2001, to one year and one day imprisonment, and three years supervised release. A condition of his supervised release stated:

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as directed by the probation officer.

He was also required to "participate in a drug and alcohol abuse treatment and counseling program, including urinalysis testing, as directed by the Probation Officer," as well as a "program of mental health treatment as directed by the probation officer."

Stephens was released from custody on September 25, 2001, to a Community Corrections Center, where he resided until November 12, 2001. On December 6 and 14, 2001, and again on January 2 and 22, 2002, he submitted urine samples that tested positive for cocaine. The probation officer referred him for relapse group counseling. Stephens voluntarily entered an outpatient drug treatment program, however he submitted a positive urine while in the program. Stephens waived a hearing and agreed to modify the conditions of his supervised release, agreeing to enter a residential treatment program. The modification was approved by the court on March 18, 2002.

On December 15, 2003, Stephens' probation officer filed a petition with the court for a warrant to arrest Stephens. The probation officer alleged Stephens violated his supervised release by submitting four dirty urine samples (cocaine), failed to submit urine samples on four other occasions, changed his residence without notification, failed to report, and failed to submit a monthly supervision report. He was arrested on December 22, 2003. The court dismissed the first two allegations (regarding the urine samples) and sentenced Stephens to four months in custody and two years supervised release on the remaining allegations. The court reimposed the same special conditions at issue. Stephens was released from custody on June 9, 2004, to a community corrections center where he is again subjected to urinalysis testing.

III.

The district court's application of the Sentencing Guidelines is reviewed de novo. United States v. Nielsen, 371 F.3d 574, 582 (9th Cir.2004). A district court's decision to impose an available condition of supervised release is typically reviewed for abuse of discretion. United States v. Johnson, 998 F.2d 696, 697 (9th Cir.1993); United States v. Gallaher, 275 F.3d 784, 793 (9th Cir.2001) (district court has discretion to impose condition reasonably related to factors set out in 18 U.S.C. § 3553(a)).¹

IV.

The statute governing the mandatory conditions of supervised release, 18 U.S.C. § 3583(d), provides in part that:

The court shall also 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. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in section 3563(a)(4).

(emphasis added). The sentencing guideline provision governing mandatory conditions of supervised release, U.S.S.G. § 5D1.3(a)(4), similarly requires that:

the defendant shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable information indicates a low risk of future substance abuse by the defendant....

Id. (emphasis added). In addition, U.S.S.G. § 5D1.3(d)(4) recommends that the court, if it has reason to believe the offender is an abuser of drugs, add as a special condition of supervised release "a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol."

Complementing the sentencing authority it has given the court, Congress has given probation officers broad statutory authority to supervise offenders and to enforce a sentencing court's terms and conditions of supervised release and probation. See, 18 U.S.C. § 3603 (providing inter alia that a probation officer shall instruct the probationer or person on supervised release of the conditions specified by the court, keep informed of the person's conduct and condition, aid the person in bringing about improvements in his conduct and condition, be responsible for the supervision of such persons, keep informed concerning the conduct, condition and compliance with any condition of probation, and immediately report any violation to the court); see also, 18 U.S.C. § 3606 (authorizing a probation officer to arrest a probationer or person on supervised release, whom the probation officer has probable cause to believe has violated a condition of his probation or release).

The division of labor between the district court and the probation office, regarding drug testing, drug treatment, and other conditions of supervised release, has been the subject of several decisions, by this court and several of our sister circuits. The law has, by and large, developed along the principle that, where the court makes the determination of whether a defendant must abide by a condition, and how (or, when the condition involves a specific act such as drug testing, how many times) a defendant will be subjected to the condition, it is permissible to delegate to the probation officer the details of where and when the condition will be satisfied.² The limitation courts impose on permitting a probation officer to determine questions such as the manner by which a defendant will pay his restitution, whether drug testing will occur, or to determine the ultimate number of drug tests, is based upon the "probation officer's status as a nonjudicial officer." United States v. Kent, 209 F.3d 1073, 1078 (8th Cir. 2000). "The most important limitation is that a probation officer may not decide the nature or extent of the punishment imposed upon a probationer," United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005), since "[u]nder our constitutional system the right to . . . impose the punishment provided by law is judicial. . . ." Ex parte United States, 242 U.S. 27, 41-42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The limitation is therefore of constitutional dimension, deriving from Article III's grant to the courts of power over "cases and controversies." Pruden, 398 F.3d at 250 (citing Melendez-Santana, 353 F.3d at 101).

V.

The district court ordered that Stephens participate in a drug treatment program as a condition of his supervised release. Specifically, the sentencing order stated that he "shall comply" with the special condition that he "participate in a drug and alcohol abuse treatment and counseling program, including urinalysis testing, as directed by the Probation Officer," as well as a "program of mental health treatment as directed by the probation officer." In other words, the court...