                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 12a0418p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 11-2571
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 SOLOMON JULIUS CARPENTER,
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
             No. 1:11-cr-24-1—Robert Holmes Bell, District Judge.
                       Decided and Filed: December 26, 2012
              Before: MARTIN, SILER, and DONALD, Circuit Judges.

                                 _________________

                                      COUNSEL
ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand
Rapids, Michigan, for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee.
                                 _________________

                                       OPINION
                                 _________________

       SILER, Circuit Judge. Defendant Solomon Julius Carpenter was sentenced to
a thirteen-month prison term followed by a two-year term of supervised release for
failing to appear for sentencing in violation of 18 U.S.C. § 3146(a)(1). One of the
conditions of his supervised release requires him to participate in a program of both drug
testing and treatment, as directed by his probation officer. Carpenter contends that this
condition is an impermissible delegation of judicial authority. We conclude that the
condition was proper and AFFIRM Carpenter’s sentence.




                                            1
No. 11-2571              United States v. Carpenter                                                       Page 2


                                                        I.

          Carpenter pled guilty to the charge of failing to appear for sentencing in violation
of 18 U.S.C. § 3146(a)(1). The district court sentenced him to thirteen months’
imprisonment and two years of supervised release. At the sentencing hearing, the court
did not orally pronounce the conditions of supervision, and Carpenter’s counsel raised
no objection to the imposed sentence. On the same day, in a written judgment, the
district court outlined the conditions of supervised release. Special Condition Number
1 provides:

          The defendant shall participate in a program of testing and treatment for
          substance abuse, as directed by the probation officer, until such time as
          the defendant is released from the program by the probation officer, and
          shall pay a portion of the cost according to his ability, as determined by
          the probation officer.

Carpenter challenges the imposition of this special condition.

                                                       II.

          The United States urges us to apply a plain error standard because Carpenter did
not object to Special Condition Number 1 at his sentencing hearing. See Fed. R. Crim.
P. 52(b); United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010).1 Carpenter
disagrees, arguing that plain error review should not apply because he had no
opportunity at the hearing to object because the drug treatment condition was not
mentioned. Federal Rule of Criminal Procedure 51(b) provides that “[i]f a party does
not have an opportunity to object to a ruling or order, the absence of an objection does
not later prejudice that party.” See United States v. Sepulveda-Contreras, 466 F.3d 166,
172 (1st Cir. 2006) (declining to apply a plain error standard of review because the
defendant had no opportunity to object to a condition first appearing in the written
judgment). Therefore, we find that Carpenter was not given an opportunity to object to
the drug treatment condition and decline to apply a plain error standard of review. In

          1
           To satisfy the plain error standard, Carpenter must show (1) error, (2) that was obvious or clear,
(3) affected his substantial rights, and (4) affected the fairness, integrity, or public reputation of his judicial
proceedings. Gunter, 620 F.3d at 645.
No. 11-2571            United States v. Carpenter                                   Page 3


lieu of reviewing this case for an abuse of discretion, see United States v. Inman, 666
F.3d 1001, 1004 (6th Cir. 2012), we apply a de novo standard of review because
Carpenter has alleged a constitutional and statutory error, see United States v. Wagner,
382 F.3d 598, 606-07 (6th Cir. 2004); United States v. Perez-Olalde, 328 F.3d 222, 224
(6th Cir. 2003).

                                              III.

        Carpenter asks that we determine what decisions regarding drug testing and drug
treatment may be delegated by the district court to a probation officer. In an analogous
case, we answered this question. See United States v. Logins, No. 11-2514, 2012 U.S.
App. LEXIS 22299, at *1, *3-4 (6th Cir. Oct. 26, 2012) (unpublished). Logins appealed
a special condition identical to the one issued to Carpenter:

        The defendant shall participate in a program of testing and treatment for
        substance abuse, as directed by the probation officer, until such time as
        the defendant is released from the program by the probation officer, and
        shall pay at least a portion of the cost according to his ability, as
        determined by the probation officer.

Logins, 2012 U.S. App. LEXIS 22299, at *3-4. Upon review, we approved this special
condition and held that

        when imposing a special condition of drug treatment under U.S.S.G.
        § 5D1.3(d)(4), the district court need only decide whether such treatment
        is required. Decisions such as which program to select and how long it
        will last can be left to the discernment of the probation officer.
        Furthermore, the details of the treatment, including how often and how
        many drug tests will be performed, can be left to the expertise of the
        professionals running the program.

Id. at *18 (footnote and citation omitted). We apply our holding in Logins to the facts
of the instant case.

        Carpenter wrongly contends that Special Condition Number 1 gave the probation
officer the authority to determine whether a drug treatment program would be imposed,
and that the district court impermissibly delegated its authority to the probation officer
to determine how many drug tests would be required. The condition clearly specifies
No. 11-2571        United States v. Carpenter                                       Page 4


that Carpenter shall participate in a drug treatment program as a condition of his
supervised release. The “as directed by the probation officer” language does not yield
to the probation officer authority to determine whether Carpenter must participate in a
treatment program because the district court decided that Carpenter “shall participate.”
See Logins, 2012 U.S. App. LEXIS 22299, at *21; United States v. Mosher, Nos. 12-
1141, 12-1143, 2012 U.S. App. LEXIS 16813, at *13-17 (6th Cir. Aug. 9, 2012)
(unpublished) (applying similar reasoning to a condition concerning mental health
treatment); United States v. Faulk, 181 F. App’x 882, 883-84 (11th Cir. 2006)
(unpublished) (holding that it was not plain error to impose the following condition:
“[Y]ou will be required to participate in a program of mental health counseling and
treatment as directed by the supervising U.S. Probation Officer.”); United States v. Zinn,
321 F.3d 1084, 1086, 1089 n.5 (11th Cir. 2003) (holding that it was not plain error to
impose the following condition: “You shall participate in a program of mental health
treatment including a sexual offender treatment program approved by the probation
officer.”). Thus, there was no delegation of Article III judicial power regarding the
primary decision of whether Carpenter would undergo treatment and whether the
treatment would include drug testing.

       That leaves the subordinate, statutory issue of whether the district court erred in
failing to specify the number of in-treatment drug tests. In their arguments, the parties
conflate the requirement imposed upon the district court for specifying the maximum
number of non-treatment drug tests, see USSG § 5D1.3(a)(4), as compared to in-
treatment drug tests, see USSG § 5D1.3(d). Here, the district court complied with its
responsibility under the Guidelines. See Logins, 2012 U.S. App. LEXIS 22299, at *14.
Congress has not required that the courts set a maximum number of in-treatment tests
where the court imposes a special condition for non-mandatory substance abuse testing
under USSG § 5D1.3(d). See, e.g., United States v. Melendez-Santana, 353 F.3d 93, 103
(1st Cir. 2003). The requirement of 18 U.S.C. § 3563(b)(9), incorporated by reference
into § 3583(d), that the drug treatment be specified “by the court,” does not require the
district court itself to specify the details of the treatment. Logins, 2012 U.S. App. LEXIS
22299, at *18; see United States v. Stephens 424 F.3d 876, 883 (9th Cir. 2005);
No. 11-2571          United States v. Carpenter                                   Page 5


Melendez-Santana, 353 F.3d at 101-02. As stated in Logins, for substance abuse
treatment and testing under USSG § 5D1.3(d), “the district court need only decide
whether treatment is required.” Logins, 2012 U.S. App. LEXIS 22299, at *16. The
district court did not improperly eschew its responsibility to impose the conditions of
supervised release merely by allowing the drug treatment professionals to design the
course of treatment, where the court has specifically required that the treatment include
testing. Congress differentiated between drug testing conducted as a mandatory
condition of supervised release and drug testing performed in the course of a special
condition of drug treatment. Only for the former case must the district court specify the
maximum number of drug tests. The frequency of treatment program testing is a
question for the professionals administering the program to determine in the performance
of their ordinary treatment functions. Logins, 2012 U.S. App. LEXIS 22299, at *18.

       Here, the district court imposed drug testing in connection with a special
condition of substance abuse program participation, and was therefore not required to
specify the number of drug tests Carpenter must undergo as a part of the treatment
program. Furthermore, the court did not impermissibly delegate its authority to the
probation officer.

       AFFIRMED.
