                            In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 06-1492
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.
JOSE A. TEJEDA,
                                         Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 05 CR 119—J.P. Stadtmueller, Judge.
                         ____________
       SUBMITTED NOVEMBER 27, 2006Œ—DECIDED
                   ____________

No. 06-1622
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.
DANIEL L. DROPIK,
                                         Defendant-Appellant.
                         ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
        No. 05 CR 247—Rudolph T. Randa, Chief Judge.
                         ____________
SUBMITTED NOVEMBER 27, 2006Œ—DECIDED FEBRUARY 7, 2007
                         ____________


Œ
  After examining the briefs and the records, we have concluded
that oral argument is unnecessary. Thus, the appeals are
submitted on the briefs and the records. See Fed. R. App. P.
34(a)(2).
2                                  Nos. 06-1492 & 06-1622

    Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
  EVANS, Circuit Judge. The two cases we consider today
are related only by the issue they raise: whether plain
error exists if a district judge delegates too much author-
ity to a probation agent over drug tests to be given a
defendant during his term of supervised release.
  Jose Tejeda entered a guilty plea to possession with the
intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1) and 852. He was sentenced to a
term of 120 months imprisonment to be followed by
8 years of supervised release. The district judge entered
as a special condition of supervised release that Tejeda
“participate in a program of testing and residential or
outpatient treatment for drug and alcohol abuse, as
approved by his supervising probation officer, until such
time as he is released from such program.” There was no
mention of the specific number of drug tests which
could be required.
  Daniel L. Dropik entered a guilty plea to two counts of
racially motivated arson damaging religious property, in
violation of 18 U.S.C. § 247(c) and (d)(3). One count grew
out of activity in Wisconsin; the other a transfer to the
Eastern District of Wisconsin pursuant to Federal Rule of
Criminal Procedure 20 from the Western District of
Michigan. He was sentenced to two concurrent terms of
63 months imprisonment and two concurrent 3-year
terms of supervised release. As a special condition of
supervised release, he was ordered to “participate in a
program of testing and residential or outpatient treat-
ment for drug and alcohol abuse, as approved by the
supervising probation officer . . . .” No limit was placed on
the number of drug tests which the probation office
could require.
  It is the condition regarding drug testing as directed by
a probation officer during the term of supervised re-
Nos. 06-1492 & 06-1622                                           3

lease—a condition that in many cases will not come
into play for many years—to which both defendants—and
several who have gone before them—object. The problem
is that neither defendant (with counsel at his side) ob-
jected, at sentencing, to the condition when it was im-
posed. So we must decide, under the circumstances,
whether the situation (which may be not all that uncom-
mon) qualifies as a plain error that we must notice on
appeal.
  The authority to order drug testing comes from 18 U.S.C.
§ 3583(d), which sets out conditions of supervised release
and states, in part:
    The court shall also order, as an explicit condition of
    supervised release, that the defendant refrain from
    any unlawful use of a controlled substance and sub-
    mit to a drug test within 15 days of release on super-
    vised release and at least 2 periodic drug tests there-
    after (as determined by the court) for use of a con-
    trolled substance.
In United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.
1998), we found that granting the probation agent author-
ity as to testing was error. In that case, the judge ordered
drug testing “within the discretion of the probation offi-
cer.” Relying on our cases in which the district courts left
too much discretion in the hands of the probation office
regarding the payment of restitution,1 we determined that
the order in Bonanno must be set aside. We said the
statute made clear that it was up to the court to determine
the number of drug tests to which a defendant must


1
   Our decision today affects only the issue of drug testing. It is
not meant to have a direct effect on our cases involving restitu-
tion, such as, for example, United States v. Mohammad, 53 F.3d
1426 (7th Cir. 1995), or United States v. Pandiello, 184 F.3d 682
(7th Cir. 1999).
4                                  Nos. 06-1492 & 06-1622

submit. However, Bonanno contained no discussion of
whether, in the absence of an objection at sentencing, an
improper delegation of the court’s authority to the proba-
tion officer should fairly be classified as plain error.
  Bonanno aside, it is not necessarily a foregone conclu-
sion that every hint of discretion given to a probation
officer constitutes error. It may be that in a proper case
we would agree with the Court of Appeals for the Ninth
Circuit that if a defendant is ordered into a treatment
program, it would not be error to grant the probation
officer discretion to designate testing which is incidental
to the program. United States v. Maciel-Vasquez, 458
F.3d 994 (9th Cir. 2006). In the cases before us, however,
the condition regarding drug testing seems to be boiler-
plate language, which grants too much discretion to the
probation agent.
  Assuming error is present, however, it does not follow
that we must necessarily correct it. A right, even a con-
stitutional right, may be forfeited in a criminal case by
the failure to object to the error before the trial court.
Yakus v. United States, 321 U.S. 414, 444 (1944). On the
other hand, Fed. R. Cr. P. 52(b) provides that a “plain
error that affects substantial rights may be considered
even though it was not brought to the court’s attention.”
The rule leaves the decision whether to correct the for-
feited error “within the sound discretion of the court of
appeals.” United States v. Olano, 507 U.S. 725, 732 (1993).
In order to correct a forfeited error, we must find that
Rule 52(b) applies. For the rule to apply, there must be
error, that is plain, and that affects substantial rights. It
is the last requirement which causes the most difficulty.
Olano says that in most cases the error must have been
prejudicial; that is, it must have affected the outcome of
the district court proceedings. It is up to the defendant to
show that the error was indeed prejudicial. The standard
which guides the exercise of discretion is whether the
Nos. 06-1492 & 06-1622                                     5

error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Olano, at 736, quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936); see
also United States v. Sebolt, 460 F.3d 910 (7th Cir. 2006).
   Whether the delegation of an aspect of drug testing on
supervised release is plain error is something we have
assumed in several orders but not decided in pub-
lished opinions. (More on this later.) Other courts have
determined that the delegation of authority regarding
drug testing does not constitute plain error. In United
States v. Padilla, 415 F.3d 211, 216 (1st Cir. 2005), the
Court of Appeals for the First Circuit determined that
requiring a defendant to submit to drug testing “as
directed by the U.S. Probation Officer” was error, but it
was not plain error. The court pointed out that plain
error analysis as to sentencing matters requires a defen-
dant to show a reasonable probability that, but for the
error, the sentence would have been more favorable to
him. A practical problem for the defendant in a drug
testing case is that he cannot show who would demand
more tests, the judge or the probation officer. The Padilla
court also noted that the requirement in the statute
that an Article III officer impose the condition is simply
a statutory choice, not a constitutional requirement. The
error itself was seen as “incidental to the defendant’s
sentence as opposed to one of its core components.” Id. at
222. It constitutes an imperfection “in a judicial system
administered by human beings” as opposed to an error
that is “offensive to the very principles on which that
system is based . . . .” Id. See also United States v. Ortiz-
Torres, 449 F.3d 61 (1st Cir. 2006).
  The Court of Appeals for the Ninth Circuit has also
determined that, in the absence of a treatment program,
granting the probation officer authority to require testing
is error. As in Padilla, it is not plain error, however,
6                                     Nos. 06-1492 & 06-1622

because it does not seriously affect the fairness, integrity,
or public reputation of the proceedings.
  On the other hand, as we said, in several unpublished
orders (now called “nonprecedential dispositions” under
new Fed. R. App. P. 32.1) we have accepted the govern-
ment’s concession that plain error exists in the delegation
of drug testing decisions to the probation office. See United
States v. Brembry, 2006 WL 2243827 at *1; United States
v. Sam, 2006 WL 1586010 at *1; United States v. Perry,
2005 WL 1253875 at *2.2 Sometimes, though, even with
a government concession, other factors may indicate
that there is no plain error. In United States v. Flowers,
2006 WL 394965 at *1, the government conceded that
plain error existed, but because the defendant would be
subject to removal from the United States by the De-
partment of Homeland Security immediately upon his
completion of his term of imprisonment, we found that
the error was not plain. The government concessions
were made based on an analogy with cases involving
the delegation of decisions regarding restitution, cases
like United States v. Mohammad, 53 F.3d 1426 (7th Cir.
1995), and United States v. Pandiello, 184 F.3d 682 (7th
Cir. 1999). These cases imply that when an improper
delegation is made, plain error inevitably exists.3 We
now reject that approach.



2
  We are, of course, aware that Local Rule 53 was in effect at the
time of these orders but find it necessary to mention them merely
to acknowledge our change of course. They carry no weight as
precedent, so we are not technically overruling anything.
3
   We intend no criticism of the government for conceding the
point. Our cases involving restitution certainly support the
concession. More importantly, we encourage thoughtful evalua-
tions of which issues should be pursued. It’s just that this time
we disagree.
Nos. 06-1492 & 06-1622                                     7

  Fed. R. Cr. P. 52 requires more. The rule is not a substi-
tute for a properly lodged objection at trial or during a
sentencing proceeding. Even in a death penalty case, the
Court has said, “Appellate review under the plain-error
doctrine, of course, is circumscribed and we exercise our
power under Rule 52(b) sparingly.” Jones v. United States,
527 U.S. 373, 389 (1999). A delegation of discretion over
the mechanics of drug testing—when the testing itself
is ordered by the court—can hardly be said to affect
substantial rights of a defendant. As the court said in
Padilla, it cannot be shown that the defendant would
have been better off had the judge imposed the details of
the drug testing himself. Neither can it impugn the
fairness, integrity, or public reputation of the criminal
proceedings. On the contrary, a remand on such an issue
could well impugn the reputation of the courts among
the public. The public is, we think, somewhat fatigued
by expensive, technical, but essentially meaningless do-
overs. That this is such an issue brings us to another
reason that plain error cannot be found. Should the
probation officer impose onerous requirements, the
condition requiring drug testing can be modified “at any
time prior to the expiration or termination of the term of
supervised release . . . .” 18 U.S.C. § 3583(e)(2). See also
Fed. R. Cr. P. 32.1(c). We found in United States v.
McKissic, 428 F.3d 719, 726 (7th Cir. 2005), with regard
to an improperly imposed restriction on alcohol consump-
tion, that “[b]ecause the district court can modify Mr.
McKissic’s conditions, the lack of notice does not rise to
the level of plain error.” In Padilla, at 223, the court said
that the defendant has a remedy should the probation
officer require “an inordinate number of drug tests or
otherwise misuse his wrongly delegated authority . . . .”
That remedy is, of course, a motion to modify the condi-
tions of supervised release. And for someone like Mr.
Tejeda, who will be in confinement far into the future
8                                 Nos. 06-1492 & 06-1622

(and we assume off drugs), that would be a better time
to have the issue reconsidered.
  The issue regarding the improper delegation of discre-
tion to a probation agent vividly illustrates why there is
a hurdle to be overcome before an appellate court
should notice an error in the absence of an objection. The
ease with which the error in these cases could be cor-
rected cannot be exaggerated. Alerted to the problem,
the district judge could simply impose the conditions for
drug testing himself. Problem solved. The defendant
would not necessarily be better off but the statute
would have been complied with.
  Because this decision signals a change of course, it was
circulated to the active members of the court under Rule
40(e). No judge voted to hear the case en banc.
  The judgments of the district courts in both cases are
affirmed.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




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