U.S. v. Padilla

• Decision Date: 23 December 2004
• Docket Number: No. 03-1918.,03-1918.
• Citation: 393 F.3d 256
• Parties: UNITED STATES, Appellee, v. Joel PADILLA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

393 F.3d 256

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

No. 03-1918.

United States Court of Appeals, First Circuit.

Submitted September 8, 2004.

Decided December 23, 2004.

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.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SELYA, Circuit Judge.

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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Emerson, 270 F.3d 203 (5th Cir.2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (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, ___ U.S. ___, 124 S.Ct. 2429, 158 L.Ed.2d 994 (2004).

Refusal to Give Jury Instruction

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. Melendez-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.

This argument is foreclosed by our decision in Melendez-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 Melendez-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 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. 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.

LEVIN H. CAMPBELL, Senior Circuit Judge and SELYA, Circuit Judge, concurring in the judgment.

We agree that United States v. Melendez-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 Melendez-Santana panel took in determining what consequences attended the delegation error.

Although the Melendez-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, 122 S.Ct. 1781, 152 L.Ed.2d 860 (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, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also United States v. Perez-Ruiz, 353 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, ___ U.S. ___, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (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, 111 S.Ct. 1246 (collecting cases). Such errors affect "[t]he entire conduct of the trial from beginning to end." Id. at 309, 111 S.Ct. 1246.

In contrast, a delegation error of the kind at issue here (and in Melendez-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, 122 S.Ct. 1781 (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 nor implicates its fundamental fairness, such an error is non-structural. This means that, even when preserved, relief for such an error must be ...