United States v. Antonio D. Stephens

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…

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 drag 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…

concurring in part and dissenting in part:

The majority has concluded that a convicted defendant may be required to submit to drug testing within a drug treatment program imposed by the court as a condition of supervised release, in which case the number of drug tests need not be set by the court itself. I agree with that holding and concur with that part of the decision.

The majority has also concluded, however, that a probation officer is not permitted to determine the maximum number of drug tests that may be required of the convicted defendant if the testing is conducted outside of a specified treatment program, even where the sentencing court has explicitly ordered testing and specified a minimum number of tests. The majority holds that the maximum number of non-treatment drug tests must be specified by the court itself. I disagree, for reasons of precedent and policy.

First, that holding is inconsistent with binding precedent, in the form of our decision in United States v. Duff, 831 F.2d 176 (9th Cir.1987). We held there that a probation officer had the authority to require a convicted defendant to submit to drug testing even when the district court had not ordered drug…