UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4350

PEGGY L. MILLER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4367

PEGGY L. MILLER,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-166)

Argued: June 3, 1997

Decided: July 9, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Miller Allison Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Edward H. Weis, First Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Margaret A. Hickey, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Peggy Miller challenges the district court's denial of her
motion to rescind a modification of the terms of her supervised
release which requires her to undergo drug testing. For the reasons
that follow, we vacate and remand to the district court for it to clarify
the statutory basis upon which it ordered the drug testing.

I.

Peggy Miller pled guilty to one count of making a false claim on
her 1990 tax return. After her sentencing hearing, the district court
imposed a ten-month term of imprisonment and a three-year term of
supervised release. See J.A. at 59-60.

At the time Miller committed her tax offense, a federal statute
(enacted in 1990) provided that drug testing could be imposed, within
the court's discretion, as a condition of supervised release. See 18
U.S.C. § 3583(d). The statute provided that the court could exercise
its discretion to impose such a condition provided that the condition
was reasonably related to (1) the nature and circumstances of the

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offense and the history and characteristics of the defendant, (2) the
need to afford adequate deterrence to criminal conduct, (3) the need
to protect the public from further crimes of the defendant, or (4) the
need to provide the defendant with educational or vocational training,
medical care, or other correctional treatment. See 18 U.S.C.
§ 3583(d); 18 U.S.C. § 3553. In 1994, after Miller committed her
offense but prior to her conviction and sentence for this offense, 18
U.S.C. § 3583(d) was amended to make drug testing a mandatory
condition of supervised release, waivable only upon a finding that the
defendant posed a low risk of substance abuse.

The district court entered its April 8, 1996, order of judgment
against Miller on a form sheet, on which appeared a box that the court
could check if it made a finding that the defendant posed a low risk
of drug abuse and therefore waived mandatory drug testing. See J.A.
at 65. On this form, the district court checked the box. Several days
later, however, the court entered an order imposing three periodic ran-
dom drug tests as a condition of Miller's supervised release. See J.A.
at 69. The court explained, in the course of denying Miller's motion
to rescind this "modification" of the terms of her supervised release,
that:

          [T]he Court's suspension of the requirement of drug test-
          ing was the result of a clerical error. The imposition of man-
          datory drug testing is discretionary with the Court. The
          Court considers it to be an appropriate condition for this
          defendant.

J.A. at 71. The district court did not explain whether it was imposing
drug testing under its authority granted by the 1990 or 1994 version
of section 3583(d).

Miller appeals the denial of her motion to rescind the district
court's modification imposing the drug testing as a condition of her
supervised release, claiming that the district court modified her
release under the 1990 version of the statute, and abused its discretion
in doing so. In this regard, she contends that there was no record evi-
dence connecting her to drugs, drug use, or potential drug use, and
therefore that drug testing was not reasonably related to any of the
four factors listed in the 1990 version of section 3583(d). In the alter-

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native, Miller argues that if the district court was applying the 1994
version of section 3583(d) when it modified her supervised release,
the court's application of this amended statute violated the Ex Post
Facto Clause because the new provision retroactively increased the
severity of her punishment for the offense that she committed in 1991.
But see Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992); Ewell
v. Murray, 11 F.3d 482, 487 (4th Cir. 1993). Because, after an exami-
nation of the record, we cannot discern whether the district court sen-
tenced Miller under the 1990 or the 1994 version of the statute when
it imposed Miller's drug testing, we vacate the district court's order
and remand for clarification of the statutory (and, if necessary, the
factual) basis for its decision.

II.

Both Miller and the United States argue that the district court sen-
tenced Miller under the 1990 version of the statute when it modified
its order because the language of the district court's order denying
Miller's motion to rescind referred to the court's"discretion" to
impose drug testing. Because drug testing was discretionary under the
1990 statute, but now is mandatory under the 1994 amendments, the
parties conclude that the district court must have sentenced Miller
under the older statute. If the parties were correct in their contentions,
a substantial question would exist as to whether the district court
abused its discretion, as the plain text of the 1990 statute provides that
a "discretionary" condition may only be imposed if the condition is
reasonably related to one of the four penal goals specified in the stat-
ute, none of which, at least on the record as it appears before us,
appear applicable to Miller.

We are far from convinced, however, that the district court
imposed sentence under the 1990 statute. From our reading of the
record, it appears at least as likely that the court was acting pursuant
to the statute as amended in 1994, which denominates drug testing as
a "mandatory" condition of supervised release, but leaving the district
court with discretion to waive the condition upon a finding that the
defendant presents a low risk of drug abuse. Thus, for instance, the
district court's reference to "discretion" in its decision denying Mil-
ler's motion to rescind could as easily have been a reference to the
court's discretion to waive the "mandatory" condition under the 1994

                     4
statute. The 1994 version of the statute was also the version in effect
when Miller was sentenced. Additionally, the judgment form com-
pleted by the court was clearly intended to implement the 1994 ver-
sion of the statute: Pursuant to the text of the form, drug testing is
automatically imposed as a condition of supervised release unless the
box is checked reflecting a finding by the court that the defendant
poses a low risk of drug use. See J.A. at 65. Such a finding would
only appear necessary if the court was sentencing Miller under the
1994 version of section 3583(d).

Because we cannot be certain of the basis for the district court's
imposition of drug testing as a condition of Miller's supervised
release, we think the more prudent course at this juncture is to vacate
the district court's order and return the case to the district court for
clarification of the statutory basis upon which Miller was ordered to
undergo mandatory drug testing and an explanation of the reasons
therefor if necessary.

The judgment of the district court is vacated and the case is
remanded for further proceedings.

VACATED AND REMANDED

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