                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                             Submitted May 19, 2005*
                              Decided May 20, 2005

                                       Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. JOHN L. COFFEY, Circuit Judge

                     Hon. DANIEL A. MANION, Circuit Judge

No. 04-3296

UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Northern
                                                District of Illinois, Eastern Division
      v.
                                                No. 03 CR 778-2
ROBERT PERRY,
    Defendant-Appellant.                        Samuel Der-Yeghiayan,
                                                Judge.

                                     ORDER

       Robert Perry pleaded guilty to robbery affecting interstate commerce and two
counts of bank robbery and was sentenced to 180 months’ imprisonment, five years’
supervised release, restitution of $25,880, and a special assessment of $300. At
sentencing, the district court adopted the guidelines calculations set forth in the
presentence report, which included the determination that Perry was a career
offender within the meaning of U.S.S.G. § 4B1.1. The court also declared, however,
that it would impose the same sentence “in the alternative if the Supreme Court or
Seventh Circuit Court of Appeals eventually decides that there are no guidelines.”
As a term of Perry’s supervised release, he was required to participate in a drug


      *
       After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3296                                                                     Page 2

aftercare program that would include “urine testing at the discretion of the
probation officer.”

       On appeal Perry first argues that his sentence violates the Sixth Amendment
because it was enhanced based on prior convictions that were neither charged in
the indictment nor proven beyond a reasonable doubt to a jury. Because Perry
objected in the district court to being sentenced as a career offender, citing Blakely
v. Washington, 124 S. Ct. 2531 (2004), we review his sentence for harmless error,
United States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005). It is true that the Sixth
Amendment is generally implicated when a defendant’s sentence is enhanced
beyond a “statutory” maximum based on factual determinations not admitted by the
defendant or proven to a jury beyond a reasonable doubt. See United States v.
Booker, 125 S. Ct. 738, 756 (2005). But the fact of a defendant’s prior conviction
has been held to fall outside the requirement that facts be proven to a jury, see
Almendarez-Torres v. United States, 523 U.S. 224, 246 (1998), and Booker did not
disturb this exception, see United States v. Ngo, — F.3d —, 2005 WL 1023034, at *2
(7th Cir. May 3, 2005). Although the Supreme Court has recently recognized that a
district court may exceed the scope of the prior-convictions exception by finding
facts that are “too far removed from the conclusive significance of a prior judicial
record . . . to say that Almendarez-Torres clearly authorizes a judge to resolve the
dispute,” Shepard v. United States, No. 03-9168, 2005 WL 516494 at *8 (U.S.
March 7, 2005), Perry does not argue that the district court did so here. Cf. Ngo,
2005 WL 1023034, at *4 (district court went beyond fact of defendant’s prior
convictions to additionally conclude that convictions were not part of a common
scheme or plan). He merely claims that the fact of his prior convictions for armed
robbery and aggravated battery should have been proven to a jury, and this is the
argument that Almendarez-Torres forecloses.

       Even though the Sixth Amendment was not violated, however, the district
court erred if it considered itself bound by the sentencing ranges provided by the
guidelines. Schlifer, 403 F.3d at 853. But in this case any error was clearly
harmless because the district court stated at sentencing that it would impose the
same sentence in the absence of the guidelines. This alternative sentence reflects
that the district court did not consider itself bound by the guidelines, and we do not
believe it could be viewed as unreasonable under any standard of review.

       Perry next argues that the district court erred when it ordered him to submit
to urine tests as a condition of his supervised release without specifying a
particular number or range of tests. Perry is correct that it is the court and not the
probation officer who must determine the number of drug tests to which he must
submit. 18 U.S.C. § 3583(d); United States v. Bonanno, 146 F.3d 502, 510-11 (7th
Cir. 1998); United States v. Vega, 298 F.3d 149, 154 (1st Cir. 2005). Although
Perry never objected in the district court to the drug test requirement (thus
No. 04-3296                                                                  Page 3

rendering our review only for plain error), an inappropriate delegation of judicial
authority to the probation department may constitute plain error. United States v.
Mohammad, 53 F.3d 1426, 1438 (7th Cir. 1995); Vega, 298 F.3d at 154. And
regardless, the government has conceded that the district court plainly erred in
imposing this condition. Therefore a remand is necessary for the district court to
clarify the testing requirements to which Perry will be subject.

       Accordingly, we REMAND in order that the judge may determine the specific
number of drug tests that Perry will be subject to while on supervised release. On
all other issues, we AFFIRM.
