                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        May 15, 2018
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                  No. 17-1191
                                         (D.C. No. 1:06-CR-00195-DME-2)
ANTHONY WRIGHT, a/k/a                                (D. Colo.)
Playboy, a/k/a Rose,

       Defendant-Appellant.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      Convicted of conspiracy and bank fraud, Mr. Anthony Wright was

sentenced to 70 months’ imprisonment and 5 years’ supervised release. See

18 U.S.C. §§ 371, 1344. During Mr. Wright’s supervised-release term, the

district court ordered revocation of supervised release for violation of the

conditions and imposed a new sentence of 12 months’ imprisonment and 2


*
      The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based
on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
years’ supervised release. For the new term of supervised release, the

district court imposed special conditions that (1) required testing for drug

abuse, (2) authorized drug treatment at the probation office’s direction,

and (3) prohibited the consumption of alcohol. Mr. Wright challenges these

conditions, contending that the district court had

           abused its discretion because the new conditions were
            unnecessary and

           improperly delegated judicial discretion over whether to
            require drug treatment.

We disagree. The district court did not abuse its discretion and did not

improperly delegate judicial discretion. Thus, we affirm.

I.    We review the special conditions for an abuse of discretion.

      At sentencing, Mr. Wright objected to the special conditions, arguing

that they were unnecessary. We review the imposition of these conditions

for an abuse of discretion and “‘will not disturb the district court’s ruling

absent a showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.’”

United States v. Flaugher, 805 F.3d 1249, 1251 (10th Cir. 2015) (quoting

United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014)).

      District courts have broad discretion to impose special conditions for

supervised release. Bear, 769 F.3d at 1226. But Congress has limited this

discretion in 18 U.S.C. § 3583(d), which sets out three requirements for

special conditions.
                                       2
      First, the conditions must be reasonably related to

           the nature and circumstances of the offense,

           the defendant’s history and characteristics,

           the deterrence of criminal conduct,

           the protection of the public from further crimes by the
            defendant, or

           the defendant’s educational, vocational, medical, or other
            correctional needs.

United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).

      Second, the conditions must involve no greater deprivation of liberty

than is reasonably necessary to deter criminal activity, protect the public,

and promote the defendant’s rehabilitation. Id.

      Third, the conditions must be consistent with the Sentencing

Commission’s policy statements. Id.

II.   The district court did not abuse its discretion in requiring drug
      testing and authorizing drug treatment.

      The sentencing guidelines recommend drug treatment when the

district court has reason to believe that the defendant is abusing controlled

substances. U.S. Sentencing Guidelines Manual § 5D1.3(d)(4). Under the

guidelines, drug treatment can include testing. Id.

      Mr. Wright argues that (1) there was little or no evidence of

continued drug abuse, and (2) he already completed a drug-treatment

program. We reject these arguments.

                                      3
      Prior to the initial sentencing, Mr. Wright admitted that he had used

marijuana weekly before his arrest. He also expressed optimism that he

would benefit from drug treatment while on supervised release. But he was

unsure whether he could refrain from marijuana use.

      Mr. Wright admits that he tested positive for marijuana while on

supervised release. And in the petition for revocation, the probation office

alleged under oath that Mr. Wright had failed to take drug tests on two

occasions. Though this allegation was dismissed, defense counsel admitted

that Mr. Wright had failed to take these tests, blaming problems with

transportation but conceding that the probation office never received

notification of the transportation problem. And a probation officer stated

under oath that Mr. Wright had been arrested in 2017 for possession of a

controlled substance. See United States v. McGhee, 869 F.3d 703, 706 (8th

Cir. 2017) (per curiam) (stating that the court can consider dismissed

violations of supervised release involving an arrest).

      In these circumstances, the district court had reason to believe that

Mr. Wright had recently been using marijuana, which could be considered

abuse of a controlled substance. See United States v. Cooper, 171 F.3d

582, 587 (8th Cir. 1999) (“‘When it comes to controlled substances, unlike

alcohol which can be consumed legally, a user is by definition an abuser.’”

(quoting United States v. Simmons, 130 F.3d 1223, 1224 (7th Cir. 1997))).

Thus, the district court had discretion to require drug testing and to

                                      4
authorize drug treatment. U.S. Sentencing Guidelines Manual

§ 5D1.3(d)(4); see also United States v. Jordan, 485 F.3d 982, 985 (7th

Cir. 2007) (stating that drug-treatment conditions “are not necessarily

reserved for individuals with extensive . . . histories of drug . . . abuse”).

      Mr. Wright relies on United States v. Napier, 463 F.3d 1040 (9th Cir.

2006). There the district court imposed similar special conditions based on

a 20-year-old conviction for selling cocaine and the vague accusations of a

coworker, who believed that the defendant was abusing “some type of

substance.” Napier, 463 F.3d at 1044–45. The Ninth Circuit vacated the

special conditions, determining there was no reason to believe that the

defendant had abused drugs or alcohol. Id. at 1045. In contrast, the district

court here had evidence that Mr. Wright had used a controlled substance

within the recent past.

      Mr. Wright also contends that drug treatment was unnecessary

because he had already participated in a treatment program. The district

court had discretion to reject this contention. Mr. Wright completed a

drug-treatment program when he was initially put on supervised release.

But the court had evidence of (1) a later drug test showing marijuana use

and (2) two failures to appear for drug tests. This evidence gave the

district court reason to question the effectiveness of the earlier drug

treatment.

                                     * * *

                                       5
       The district court’s special conditions involving testing and

treatment for drugs

            were reasonably related to Mr. Wright’s history and
             characteristics,

            did not involve a greater deprivation of liberty than reasonably
             necessary, and

            were consistent with § 5D1.3(d)(4).

See 18 U.S.C. § 3583(d). Accordingly, the district court did not abuse its

discretion in imposing the new special conditions involving testing and

treatment for drugs.

III.   The district court did not abuse its discretion in requiring Mr.
       Wright to abstain from alcohol.

       Mr. Wright also argues that the district court abused its discretion in

banning alcohol while he was on supervised release. We disagree.

       As Mr. Wright points out, the record does not contain any evidence

that he has abused alcohol. But the sentencing guidelines recommend an

alcohol ban when the court has reason to believe that the defendant is

abusing a controlled substance. U.S. Sentencing Guidelines Manual

§ 5D1.3(d)(4).

       As discussed above, the district court had reason to believe that Mr.

Wright had abused marijuana. See p. 4, above. Under these circumstances,

the district court did not abuse its discretion in banning alcohol.




                                       6
IV.   The district court did not err in delegating discretion over drug
      treatment.

      In his opening brief, Mr. Wright argued that the district court had

plainly erred by delegating its discretion to the probation office, which

could decide whether to require drug treatment. 1 A delegation is

impermissible it if implicates a “significant liberty interest, such as one

requiring the defendant to participate in residential treatment . . . .” United

States v. Mike, 632 F.3d 686, 696 (10th Cir. 2011).

      In responding, the government argued that the special condition

would be problematic only if it were read to allow the probation office to

unilaterally require treatment in a residential program. The government

asks us to avoid this problem by narrowly construing the condition to

prohibit the probation officer from requiring residential treatment. See

United States v. Bear, 769 F.3d 1221, 1231 (10th Cir. 2014) (narrowly

construing a broadly worded special condition to prevent the probation

office from unilaterally ordering residential mental-health treatment in

order to avoid a delegation issue); Mike, 632 F.3d at 696 (same).

      In his reply brief, Mr. Wright admitted that the special condition for

drug treatment would not constitute plain error if the condition were read




1
      Mr. Wright did not raise this issue in district court. He therefore
seeks review under the plain-error standard. See United States v. Bear, 769
F.3d 1221, 1230 (10th Cir. 2014).
                                       7
in this manner. Thus, Mr. Wright agrees with the government’s requested

interpretation of the condition.

      Like the parties, we interpret the condition in a way that prevents

placement in residential treatment based solely on the probation office’s

recommendation. With this interpretation, Mr. Wright concedes that the

condition would not constitute plain error.

V.    Conclusion

      The district court did not abuse its discretion in imposing the new

special conditions based on evidence that Mr. Wright had tested positive

for marijuana and missed two drug tests. Nor did the district court plainly

err by delegating discretion over whether to order drug treatment.

Accordingly, we affirm.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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