United States v. Antonio D. Stephens

439 F.3d 1083 UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. STEPHENS, Defendant Appellant. No. 04-50170. United States Court of Appeals, Ninth Circuit. March 8, 2006. U.S. Attorney, Carol M. Lee, Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee. Alice L. Fontier, Esq., Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant. Before STEPHEN REINHARDT, ANDREW J. KLEINFELD and RICHARD R. CLIFTON, Circuit Judges. ORDER 1 The majority of the panel has voted to deny the petition for rehearing and rehearing en banc. Judge Clifton would grant the petition. 2 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. FED. R. APP. P. 35. 3 The petition for rehearing and rehearing en banc is denied. 4 TALLMAN, Circuit Judge, with whom WARDLAW, RAWLINSON, CLIFTON, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc: 5 Today, by ignoring the plain meaning of 18 U.S.C. § 3583 (d), the court rewrites…

with whom WARDLAW, RAWLINSON, CLIFTON, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:

Today, by ignoring the plain meaning of 18 U.S.C. § 3583 (d), the court rewrites the language of an unambiguous statute, contravenes the United States Parole Commission’s authoritative Rules and Procedures Manual, and disregards controlling Ninth Circuit case law by requiring district judges “to set the maximum number of non-treatment drug tests to which [a defendant] would be subjected during the course of his supervised release.” United States v. Stephens, 424 F.3d 876, 878 (9th Cir.2005) (emphasis in original). The ruling makes no sense under a supervisory scheme that properly delegates to the court’s probation officers responsibility for determining how best to enforce the terms and conditions of supervised release set months or years earlier by the sentencing judge. The drug testing condition is typically imposed and ordered by judges, as part of the original sentence, to become effective after release from incarceration based upon the offender’s criminal history, the nature of the crime of conviction, and the Pre-Sentence Report. Congress no…

ORDER

The majority of the panel has voted to deny the petition for rehearing and rehearing en banc. Judge Clifton would grant the petition.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. Fed. R. App. P. 35.

The petition for rehearing and rehearing en banc is denied.