                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 04-50170
                Plaintiff-Appellee,
               v.                                   D.C. No.
                                                   CR-00-03718
ANTONIO D. STEPHENS,
                                                    OPINION
             Defendant-Appellant.
                                           
         Appeal from the United States District Court
            for the Southern District of California
          M. James Lorenz, District Judge, Presiding

                    Argued and Submitted
            January 12, 2005—Pasadena, California

                     Filed September 2, 2005

     Before: Stephen Reinhardt and Richard R. Clifton,
   Circuit Judges, and Charles R. Weiner, District Judge.*

                 Opinion by Judge Weiner;
  Partial Concurrence and Partial Dissent by Judge Clifton




   *The Honorable Charles R. Weiner, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                12079
12082           UNITED STATES v. STEPHENS


                      COUNSEL

Alice Fontier, Federal Defenders of San Diego, Inc., San
Diego, California, for defendant-appellant Antonio Damon
Stephens.
                   UNITED STATES v. STEPHENS              12083
Carol C. Lam, United States Attorney, Roger W. Haines, Jr.,
Assistant United States Attorney, Chief Appellate Section
Criminal Division, Carol M. Lee, Assistant United States
Attorney, San Diego, California, for plaintiff-appellee United
States of America.


                          OPINION

WEINER, Senior District Judge:

                               I.

   Antonio Damon Stephens appeals the sentence imposed by
the district court upon the revocation of his supervised
release. Stephens was on supervised release as part of his sen-
tence following the entry of a guilty plea to importation of
marijuana. The issue we confront in this appeal is whether the
district court improperly delegated its authority to determine
the number, frequency, timing, and manner of substance
abuse testing and treatment to which Stephens would be sub-
jected during the term of his supervised release. We hold that
the requirement that Stephens participate in substance abuse
treatment, including in-treatment drug testing, was an order of
the district court. Thus, there was no improper delegation of
Article III judicial authority to the probation department as to
whether Stephens would participate. We also hold that, as part
of a court ordered treatment program, a defendant may be
required to undergo regular drug testing, in addition to the
number of tests that are ordered as part of his supervised
release. However, the testing condition, as imposed here, was
an improper delegation of the district court’s duty to set the
maximum number of non-treatment drug tests to which Ste-
phens would be subjected during the course of his supervised
release. Accordingly, we vacate the sentence and remand.

                              II.

   Stephens was indicted on December 6, 2000, on one count
of importing approximately 45.25 kilos of marijuana, in viola-
12084              UNITED STATES v. STEPHENS
tion of 21 U.S.C. §§ 952 and 960, and one count of possession
of marijuana with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). He pled guilty to count 1 of the indict-
ment and was sentenced on June 12, 2001, to one year and
one day imprisonment, and three years supervised release. A
condition of his supervised release stated:

    The defendant shall refrain from any unlawful use of
    a controlled substance. The defendant shall submit to
    one drug test within 15 days of release from impris-
    onment and at least two periodic drug tests thereaf-
    ter, as directed by the probation officer.

He was also required to “participate in a drug and alcohol
abuse treatment and counseling program, including urinalysis
testing, as directed by the Probation Officer,” as well as a
“program of mental health treatment as directed by the proba-
tion officer.”

   Stephens was released from custody on September 25,
2001, to a Community Corrections Center, where he resided
until November 12, 2001. On December 6 and 14, 2001, and
again on January 2 and 22, 2002, he submitted urine samples
that tested positive for cocaine. The probation officer referred
him for relapse group counseling. Stephens voluntarily
entered an outpatient drug treatment program, however he
submitted a positive urine while in the program. Stephens
waived a hearing and agreed to modify the conditions of his
supervised release, agreeing to enter a residential treatment
program. The modification was approved by the court on
March 18, 2002.

   On December 15, 2003, Stephens’ probation officer filed a
petition with the court for a warrant to arrest Stephens. The
probation officer alleged Stephens violated his supervised
release by submitting four dirty urine samples (cocaine),
failed to submit urine samples on four other occasions,
changed his residence without notification, failed to report,
                      UNITED STATES v. STEPHENS                     12085
and failed to submit a monthly supervision report. He was
arrested on December 22, 2003. The court dismissed the first
two allegations (regarding the urine samples) and sentenced
Stephens to four months in custody and two years supervised
release on the remaining allegations. The court reimposed the
same special conditions at issue. Stephens was released from
custody on June 9, 2004, to a community corrections center
where he is again subjected to urinalysis testing.

                                   III.

   The district court’s application of the Sentencing Guide-
lines is reviewed de novo. United States v. Nielsen, 371 F.3d
574, 582 (9th Cir. 2004). A district court’s decision to impose
an available condition of supervised release is typically
reviewed for abuse of discretion. United States v. Johnson,
998 F.2d 696, 697 (9th Cir. 1993); United States v. Gallaher,
275 F.3d 784, 793 (9th Cir. 2001) (district court has discretion
to impose condition reasonably related to factors set out in 18
U.S.C. § 3553(a)).1

                                   IV.

  [1] The statute governing the mandatory conditions of
supervised release, 18 U.S.C. § 3583(d), provides in part that:

      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
      thereafter (as determined by the court) for use of a
      controlled substance. The condition stated in the pre-
  1
    Where the defendant fails to object to a supervised release condition,
our review is for plain error. United States v. Rearden, 349 F.3d 608, 618
(9th Cir. 2003). Here, however, Stevens preserved the issue of the illegal-
ity of his supervised release conditions in the district court.
12086             UNITED STATES v. STEPHENS
    ceding sentence may be ameliorated or suspended by
    the court as provided in section 3563(a)(4).

(emphasis added). The sentencing guideline provision govern-
ing mandatory conditions of supervised release, U.S.S.G.
§ 5D1.3(a)(4), similarly requires that:

    the defendant shall refrain from any unlawful use of
    a controlled substance and submit to one drug test
    within 15 days of release on probation and at least
    two periodic drug tests thereafter (as determined by
    the court) for use of a controlled substance, but the
    condition stated in this paragraph may be amelio-
    rated or suspended by the court for any individual
    defendant if the defendant’s presentence report or
    other reliable information indicates a low risk of
    future substance abuse by the defendant . . . .

Id (emphasis added). In addition, U.S.S.G. § 5D1.3(d)(4) rec-
ommends that the court, if it has reason to believe the
offender is an abuser of drugs, add as a special condition of
supervised release “a condition requiring the defendant to par-
ticipate in a program approved by the United States Probation
Office for substance abuse, which program may include test-
ing to determine whether the defendant has reverted to the use
of drugs or alcohol.”

   [2] Complementing the sentencing authority it has given
the court, Congress has given probation officers broad statu-
tory authority to supervise offenders and to enforce a sentenc-
ing court’s terms and conditions of supervised release and
probation. See, 18 U.S.C. § 3603 (providing inter alia that a
probation officer shall instruct the probationer or person on
supervised release of the conditions specified by the court,
keep informed of the person’s conduct and condition, aid the
person in bringing about improvements in his conduct and
condition, be responsible for the supervision of such persons,
keep informed concerning the conduct, condition and compli-
                      UNITED STATES v. STEPHENS                      12087
ance with any condition of probation, and immediately report
any violation to the court); see also, 18 U.S.C. § 3606 (autho-
rizing a probation officer to arrest a probationer or person on
supervised release, whom the probation officer has probable
cause to believe has violated a condition of his probation or
release).

   [3] The division of labor between the district court and the
probation office, regarding drug testing, drug treatment, and
other conditions of supervised release, has been the subject of
several decisions, by this court and several of our sister cir-
cuits. The law has, by and large, developed along the princi-
ple that, where the court makes the determination of whether
a defendant must abide by a condition, and how (or, when the
condition involves a specific act such as drug testing, how
many times) a defendant will be subjected to the condition, it
is permissible to delegate to the probation officer the details
of where and when the condition will be satisfied.2 The limita-
  2
    Cases involving drug testing include United States v. Bonanno, 146
F.3d 502, 511 (7th Cir. 1998) (drug testing order which required the
defendants to submit to urinalysis “at random . . within the discretion of
the probation officer” was beyond the parameters of the supervised release
statute and gave the probation officer too much discretion in the manage-
ment of the drug testing order); United States v. Melendez-Santana, 353
F.3d 93, 103 (1st Cir. 2003) (while courts need not become involved in
details such as scheduling tests, Congress assigned the courts the responsi-
bility of stating the maximum number of tests to be performed or to set
a range; they may not vest probation officers with the discretion to order
an unlimited number of drug tests); and United States v. Tulloch, 380 F.3d
8, 10-11 (1st Cir. 2004) (giving probation officer discretion to order
unlimited drug tests is an improper delegation; allowing the probation offi-
cer to determine the timing of tests is permissible administrative task).
   Cases involving mental health treatment include United States v. Kent,
209 F.3d 1073, 1079 (8th Cir. 2000) (court’s order that if counseling “be-
comes necessary” probation officer may determine whether defendant
must participate, was inconsistent with Article III because punishment is
a judicial function, and the guidelines state that the court may impose that
condition); United States v. Peterson, 248 F.3d 79, 85 (2nd Cir. 2001)
(special condition of supervised release requiring sexual offender counsel-
12088                  UNITED STATES v. STEPHENS
tion courts impose on permitting a probation officer to deter-

ing “only if directed to do so by his probation officer” would be an imper-
missible delegation of judicial authority; however if the district judge
intended nothing more than to delegate to the probation officer the details
of selection and scheduling of the program, such delegation was proper);
United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002) (sentence requir-
ing that the defendant “shall participate in a program of mental health
treatment, as directed by the probation officer, until such time as the
defendant is released from the program by the probation officer” was not
an unlawful delegation; sentencing order inclusion of the words “shall par-
ticipate” imposed mandatory counseling, while merely delegating the
administrative details); United States v. Zinn, 321 F.3d 1084, 1092 (11th
Cir. 2003) (no plain error in the district court’s delegation of authority to
the probation officer for overseeing defendant’s mental health treatment,
including administering polygraph tests administered in aid of treatment
since probation officers play a vital role in effectuating the district court’s
sentence; order stated defendant “shall participate” as directed); United
States v. Taylor, 338 F.3d 1280, 1284 (11th Cir. 2003) (order to participate
in a mental health program “approved by the probation officer” was not
so vague that it improperly delegated judicial responsibility to the proba-
tion office; Guidelines expressly permit the district court to require a men-
tal health program approved by the United States Probation Office,
probation officers play a vital role in effectuating the sentences imposed
by district courts, they act under the discretion of the appointing court, are
an arm of the court, and liaise between the court and the defendant; statu-
tory mandate to “perform any other duty that the court may designate” is
to (a) be interpreted broadly, although (b) it is limited by Article III which
prohibits delegation of judicial functions); United States v. York, 357 F.3d
14, 21 (1st Cir. 2004) (distinguishing Melendez-Santana where the district
court had ordered that defendant “shall be required” to submit to periodic
polygraph testing as a means to ensure compliance with a sex offender
counseling program; probation officer may determine the “details” of fre-
quency, duration, and allowable scope of questioning; courts are not pro-
hibited from using non-judicial officers to support judicial functions, as
long as the judicial officer retains and exercises ultimate responsibility);
United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (order giving
probation officer authority to decide whether or not defendant would have
to participate in mental health program was improper).
   Cases involving restitution payments include United States v. Johnson,
48 F.3d 806, 808-09 (4th Cir. 1995) (sentence requiring defendant to pay
restitution in such amounts and at such times as may be directed by the
                      UNITED STATES v. STEPHENS                      12089
mine questions such as the manner by which a defendant will
pay his restitution, whether drug testing will occur, or to
determine the ultimate number of drug tests, is based upon the
“probation officer’s status as a nonjudicial officer.” United
States v. Kent, 209 F.3d 1073, 1078 (8th Cir. 2000). “The
most important limitation is that a probation officer may not
decide the nature or extent of the punishment imposed upon
a probationer,” United States v. Pruden, 398 F.3d 241, 250
(3d Cir. 2005), since “[u]nder our constitutional system the
right to . . . impose the punishment provided by law is judi-
cial. . . .” Ex parte United States, 242 U.S. 27, 41-42 (1916).
The limitation is therefore of constitutional dimension, deriv-
ing from Article III’s grant to the courts of power over “cases
and controversies.” Pruden, 398 F.3d at 250 (citing Melendez-
Santana, 353 F.3d at 101).

                                     V.

   [4] The district court ordered that Stephens participate in a
drug treatment program as a condition of his supervised
release. Specifically, the sentencing order stated that he “shall
comply” with the special condition that he “participate in a
drug and alcohol abuse treatment and counseling program,
including urinalysis testing, as directed by the Probation Offi-
cer,” as well as a “program of mental health treatment as
directed by the probation officer.” In other words, the court

Bureau of Prisons and/or the probation officer and also authorizing the
probation officer to increase the monthly payment if he determined defen-
dant was capable of paying more, was improper; statute setting forth the
duties of probation officers was limited by Article III; that general princi-
ple does not, however, prohibit courts from using nonjudicial officers to
support judicial functions, as long as a judicial officer retains and exer-
cises ultimate responsibility); United States v. Gunning, 401 F.3d 1145
(9th Cir. 2005) (setting restitution schedule is non-delegable under Manda-
tory Victims Restitution Act of 1996, 18 U.S.C. § 3664(f)(1)(A)), distin-
guishing Montano-Figueroa v. Crabtree, 162 F.3d 548, 550 (9th Cir.
1998) (per curiam) (holding that scheduling fine payments could be dele-
gated).
12090              UNITED STATES v. STEPHENS
itself answered the question of whether Stevens would
undergo treatment, and whether treatment program testing
would be required. The sentencing order’s inclusion of the
words “shall comply” imposed mandatory treatment and treat-
ment program urinalysis, while merely delegating the admin-
istrative details of arranging the program to the probation
officer. No discretion on the subject was given to the proba-
tion officer, other than to perform the ministerial tasks of
choosing the appropriate program and facilitating Stephens’
attendance. Thus, there was no delegation of Article III judi-
cial power regarding the primary decision of whether Ste-
phens would undergo treatment and that the treatment
program would include urinalysis.

                              VI.

   That leaves the subordinate, statutory issues of whether the
district court erred in (1) failing to specify the number of in-
treatment drug tests, as well as (2) the maximum number of
non-treatment drug tests to which Stephens would be required
to submit.

                               A.

   In construing a statute, the court’s objective is to ascertain
the intent of Congress in enacting it and give effect to the leg-
islative will. United States v. Gilbert, 266 F.3d 1180, 1183
(9th Cir. 2001) (citing Negonsott v. Samuels, 507 U.S. 99, 104
(1993). Where legislative “will has been expressed in reason-
ably plain terms, that language must ordinarily be regarded as
conclusive.” Id. If the plain language of a statute renders its
meaning reasonably clear, the court will not investigate fur-
ther unless its “application leads to unreasonable or impracti-
cable results.” United States v. Daas, 198 F.3d 1167, 1174
(9th Cir. 1999).

                               B.

   [5] Congress’s inclusion in § 3583(d), the supervised
release provision, of the drug testing requirement and the par-
                   UNITED STATES v. STEPHENS               12091
enthetical provision, “as determined by the court,” as well as
its provision that the drug testing condition may be “amelio-
rated or suspended by the court,” is without question a plain
expression of its intent that courts themselves determine not
only whether the defendant will be tested during supervised
release, but the maximum number of tests as well. By using
the words “shall order,” Congress has required that those on
supervised release be subjected to “at least” three drug tests.
The first must be administered within fifteen days of release.
At least two additional tests are also mandated, but Congress
left it to the district judge’s discretion to require even more
testing, or to specifically find that no testing was needed at
all.

   [6] We agree with the First Circuit’s holdings in Melendez-
Santana and Tulloch, that the statute, together with the guide-
line, clearly requires that the court, not the probation officer,
set the maximum number of non-treatment-program drug tests
to which a defendant may be subjected. Congress set the con-
ditional minimum while assigning to the courts the responsi-
bility of stating the maximum number of tests to be performed
or to set a range for the permissible number of tests.

   The district court’s sentencing order, while incanting most
of the words of the statute, failed to abide by its final require-
ment that the court itself determine the maximum number of
drug tests. It ordered that Stephens submit to the fifteen day
drug test as well as “at least two periodic drug tests thereafter,
as directed by the probation officer.” Under the statute, it was
for the district court to determine the maximum number, not
for the probation officer to direct. Having determined that
number, the court could have left it to the probation officer to
direct the scheduling and other details of the test. But proba-
tion officers may not be vested with unlimited discretion to
order drug tests given the very real consequences that may
follow therefrom. Where, as here, a probation officer can of
his own accord order a test, he is subjecting the defendant to
the possibility of further criminal punishment. While allowing
12092              UNITED STATES v. STEPHENS
the probation officer to determine the timing of tests is a per-
missible administrative task, it is for the court to determine
how many times a defendant may be placed in jeopardy of
being tested.

   [7] We find that, while the district court itself determined
the minimum number of tests to which Stephens would be
required to submit, the court erred when it failed to state the
maximum number of non-treatment drug tests the probation
officer could impose. This delegation of the court’s statutory
duty was impermissible.

                               C.

   [8] On the other hand, Congress has not required that the
courts micro-manage drug treatment programs by setting a
maximum number of in-treatment tests. Where the district
court specifies that the defendant shall participate in a drug
treatment program, it may properly delegate to the probation
officer the responsibility for selecting the program. The drug
treatment professionals then have the responsibility to design
the course of treatment, including the frequency of in-
treatment testing, to ensure that the treatment is effective. The
requirement of § 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 specify the details of
the treatment. As we stated in the context of psychological
treatment for a sex offender, “the court cannot be expected to
design the particularities of a treatment program. That the
court allowed a therapist to do so does not mean the court del-
egated its authority to impose conditions of release.” United
States v. Fellows, 157 F.3d 1197 (9th Cir. 1998) (supervised
release condition requiring that the defendant “follow all other
lifestyle restrictions or treatment requirements imposed by
defendant’s therapist.” was not improper delegation); see also
United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) (giv-
ing probation officer authority to select treatment program for
sex offender was not improper; that is what probation officers
                       UNITED STATES v. STEPHENS                      12093
do; they are mandated to supervise offenders and to enforce
a sentencing court’s terms and conditions of supervised
release and probation);3 but see United States v. Williams, 356
F.3d 1045 (9th Cir. 2004) (limiting the application of Rearden
where supervised release condition involves requirement that
defendant take psychotropic drugs; district court must make
explicit, specific finding under § 3583(d)(2)); cf. United
States v. Duff, 831 F.2d 176, 178-79 (9th Cir. 1987) (holding
that a probation officer in a pre-Guidelines case had the power
to order a defendant to submit to drug testing even when the
court had not explicitly imposed such a condition).4

   [9] Similarly here, the court does not improperly shirk its
responsibility to impose the conditions of 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 has opted to differentiate
between testing done as a mandatory condition of supervised
release and testing done in the course of special condition
drug treatment. Only for the former case must the district
  3
     While the government argues that Rearden could arguably support the
notion that the probation officer may decide the extent of non-treatment
drug testing, nothing in Rearden, can be read to imply that the probation
officer is empowered to do anything more than enforce the sentencing
court’s decision on the extent of drug testing. As Congress has clearly pro-
vided in the statutes and Guidelines that it is the sentencing court’s role
to decide the number of tests, we construe Rearden to hold only that the
probation officer has the ability to devise the details of testing, but only
after the court has made the initial “whether” and “how many” determina-
tions.
   4
     The dissent claims our resolution ignores the binding precedent of
Duff, that a probation officer has the authority to require drug testing even
where never ordered by the district court. However, Duff is easily distin-
guished. The case considered the question of whether the probation officer
had the power under 18 U.S.C. § 3655 (1982 & Supp. III 1985), repealed
by Pub. L. No. 98-473 (now codified at 18 U.S.C. § 3603), to order Duff
to submit to non-treatment drug testing. Here, we construe an entirely dif-
ferent statute, § 3583(d), which specifically sets forth the obligation of the
district judge to determine the number of drug tests.
12094                  UNITED STATES v. STEPHENS
court specify the maximum number of tests. Only in the for-
mer is the testing penological in nature. The frequency of
treatment program testing is a question for the professionals
administering the program to properly determine in the per-
formance of their ordinary treatment functions, which are
entirely non-penological. Stephens’ sentence itself required
that he participate in a drug treatment program and that as a
part of the program he be tested to ensure his compliance with
it. Having determined that the drug treatment program would
include testing, it was not improper, under Fellows, for the
court to permit the probation officer to select the program and
to allow the drug treatment professionals to determine the
“particularities of [the] treatment.”

   [10] We vacate the drug testing provision and remand this
case to the district court so that it may determine the maxi-
mum number of drug tests to which the defendant must sub-
mit while on supervised release.5 The defendant shall not be
required to take any drug tests beyond the three required by
the statute unless the district court has made such a determina-
tion.

   SENTENCE VACATED IN PART; REMANDED.



  5
    The dissent also criticizes our holding on the ground that it invites sen-
tencing courts to set the maximum number of drug tests “sky-high,” in
effect delegating to the probation officer exactly the same authority as
here. We doubt that district court judges would make unprincipled deter-
minations. It may well be that, given an offender with serious predilec-
tions toward drug use, the district court will set the maximum number
sufficiently high to give the probation officer flexibility in supervising the
offender. The obverse is equally likely. A district judge may wish to exer-
cise the discretion Congress has granted in § 3583(d) and specifically
negate testing during supervised release of an offender with no history of
drug use. In either event, the key under the statute is that the sentencing
court, not the probation officer, make the penological decision of placing
the offender in jeopardy of submitting to the tests.
                   UNITED STATES v. STEPHENS               12095
CLIFTON, Circuit Judge, concurring in part and dissenting in
part:

   The majority has concluded that a convicted defendant may
be required to submit to drug testing within a drug treatment
program imposed by the court as a condition of supervised
release, in which case the number of drug tests need not be
set by the court itself. I agree with that holding and concur
with that part of the decision.

   The majority has also concluded, however, that a probation
officer is not permitted to determine the maximum number of
drug tests that may be required of the convicted defendant if
the testing is conducted outside of a specified treatment pro-
gram, even where the sentencing court has explicitly ordered
testing and specified a minimum number of tests. The major-
ity holds that the maximum number of nontreatment drug
tests must be specified by the court itself. I disagree, for rea-
sons of precedent and policy.

   First, that holding is inconsistent with binding precedent, in
the form of our decision in United States v. Duff, 831 F.2d
176 (9th Cir. 1987). We held there that a probation officer had
the authority to require a convicted defendant to submit to
drug testing even when the district court had not ordered drug
tests as a condition of supervised release. We observed that
the district court had ordered the defendant to obey all laws
and that probation officers were required by statute to “use all
suitable methods, not inconsistent with the conditions
imposed by the court, . . . to bring about improvements in [a
probationer’s] conduct and condition” and to “keep informed
concerning the conduct and condition of each probationer
under [their] supervision.” Id. at 178 (quoting 18 U.S.C.
§ 3655, part of the Federal Probation Act, 18 U.S.C. §§ 3651-
56, then in effect but repealed effective November 1, 1987)
(quotation marks omitted and alteration in original). We rea-
soned that the probation officer’s use of urinalysis to deter-
mine whether the defendant was using illegal drugs was
12096             UNITED STATES v. STEPHENS
consistent with the condition that the defendant obey the law,
made it more probable that the defendant would successfully
complete the probationary period, and allowed the probation
officer to stay informed as to the defendant’s conduct.
Accordingly, we held that the probation statute and the gen-
eral order regarding compliance with the law gave the proba-
tion officer the authority to require drug testing without
further direction from the court. Id. at 178-79.

   The same considerations that supported the holding in Duff
are present in this case. Here, the district court ordered, as
conditions of supervised release, that the convicted defendant
“not commit another federal, state or local crime,” “refrain
from any unlawful use of a controlled substance,” “submit to
one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter,” and “partici-
pate in a program of drug or alcohol abuse treatment includ-
ing urinalysis testing and counseling as directed by the
probation officer.” To enforce compliance with those condi-
tions, his probation officer was empowered by statute to

    (3) use all suitable methods, not inconsistent with
    the conditions specified by the court, to aid a proba-
    tioner or a person on supervised release who is under
    his supervision, and to bring about improvements in
    his conduct and condition;

    (4) be responsible for the supervision of any proba-
    tioner or a person on supervised release who is
    known to be within the judicial district;

    ***

    (7) keep informed concerning the conduct, condi-
    tion, and compliance with any condition of probation
    ...;

    ***
                   UNITED STATES v. STEPHENS               12097
    (10) perform any other duty that the court may des-
    ignate.

18 U.S.C. § 3603 (emphasis added).

   Although the structure of the supervised release statute has
changed since Duff, the broad language of the current statute
outlining the duties of probation officers conveys the same
substantive authority that existed under the predecessor stat-
ute. Compare 18 U.S.C. § 3603 with the previous version, 18
U.S.C. § 3655, as discussed in Duff, 831 F.2d at 178; see also
United States v. Smith, 45 F. Supp. 2d 914, 919 (D. Ala.
1999) (relying on 18 U.S.C. § 3603 to hold that probation
officers have the power to determine the number and fre-
quency of drug tests). If a probation officer can require drug
tests when the sentencing court did not impose testing as a
condition of supervised release, as we held in Duff, then
surely the probation officer can require additional tests after
the court has explicitly imposed submission to drug testing as
a requirement of supervised release. Thus, when Stephens was
ordered as a condition of probation to refrain from all unlaw-
ful use of a controlled substance and to submit to two or more
drug tests (in addition to the one test ordered within the first
15 days after release from imprisonment), the probation offi-
cer was authorized by statute, as we held in Duff, to use any
suitable means to ensure that the defendant complied with that
condition. Requiring additional drug tests and determining
how many more tests, beyond the minimum, was properly
within the power of the probation officer.

   The majority opinion cites Duff with approval, ante at
12093, and then dismisses Duff, ante at 12093 n.4, with the
observation that “[h]ere, we construe an entirely different stat-
ute, [18 U.S.C.] § 3583(d), which specifically sets forth the
obligation of the district judge to determine the number of
drug tests.” The fact of a different statute is relevant, how-
ever, only if Duff has been overruled by § 3583. In other
words, Duff is controlling unless the authority that we held
12098              UNITED STATES v. STEPHENS
probation officers possess under § 3655—authority that is
preserved under § 3603—was stripped from probation offi-
cers by the enactment of § 3583. The majority does not even
attempt to make such an argument. Nor could it do so easily,
as Duff was cited with approval just two years ago in United
States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003).

   Nevertheless, I infer that the majority has concluded that
Duff was effectively overruled by Congress when it enacted
the current version of § 3583(d). That statute requires the dis-
trict court to order as an explicit condition of supervised
release, among other things, that a defendant submit to a drug
test within 15 days of release “and at least 2 periodic drug
tests thereafter (as determined by the court) for use of a con-
trolled substance,” a condition which “may be ameliorated or
suspended by the court.” That language was added to the stat-
ute in 1994, as part of the Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. 103-322, § 20414(c), to
strengthen the effort to combat drug use by persons on super-
vised release. The majority opinion refers to our duty to give
effect to the legislative will. Ante at 12090. If that is the
majority’s goal, it is highly improbable, to say the least, that
Congress intended that statute to curtail the authority of a pro-
bation officer to require appropriate drug testing based on the
circumstances of the individual defendant on supervised
release, which is the authority we identified in Duff. The par-
enthetical “(as determined by the court)” simply required the
court to establish a minimum number of drug tests. It did not
intend to take authority away from a probation officer or
restrict the ability of the court to delegate supervisory author-
ity to the probation officer, who is an employee of the judicial
branch and is appointed by the court, see 18 U.S.C. § 3602(a).
Duff has not been superseded, and it should control our deci-
sion here.

   Second, the rule that emerges from the decision in this case
makes little sense. At the time of sentencing, the district court
is not in a position to determine how many tests may be
                   UNITED STATES v. STEPHENS               12099
required for proper supervision of an individual defendant.
Nor should the district court be expected to monitor each
defendant’s situation and determine the supervision needs
during the period of the convicted defendant’s supervised
release. That is why the court employs probation officers.
Today’s decision simply invites sentencing courts to set a
high maximum number of tests—the largest number of tests
that might be required or sought by a probation officer—thus
effectively delegating to the probation officer exactly the
same authority. The majority opinion suggests that this would
be “unprincipled,” ante at 12094 n.5, but I think a more apt
description would be “prudent.” Why should the district judge
expect to know more about the defendant’s needs at the time
of sentencing than the probation office will during the course
of supervised release, which could begin many years later? In
the comparably rare situation that a district court determines
a defendant poses no danger of future drug use, the court is
expressly authorized to “ameliorate[ ] or suspend[ ]” the drug
testing provision “as provided in . . . [18 U.S.C.
§ 3563(a)(4)].” That has nothing to do with the propriety or
probability that district courts will generally order a high
maximum number of nontreatment drug tests to satisfy the
unnecessary requirement imposed by the majority opinion.

   Moreover, this decision creates a false dichotomy between
drug testing done while the convicted defendant on supervised
release is within a treatment program and drug testing done
outside or after the completion of such a program. The testing
is exactly the same. The purpose of the testing is exactly the
same, and one is no more penological than the other. Simply
because a defendant has completed a treatment program does
not mean that there is no longer reason to be concerned about
drug use. Most controlled substances are addictive, and fight-
ing addiction is a long-term, often life-time, battle. If the risk
of being caught by a drug test helps keep a person on super-
vised release off drugs, we do an enormous disservice by
restricting the ability of a probation officer to order such a
test. We do an even greater disservice when we limit the pro-
12100             UNITED STATES v. STEPHENS
bation officer’s ability to order drug testing when the officer
has actual reason to suspect that a given defendant has lapsed
back into drug use. This new limitation on a probation offi-
cer’s ability to require drug testing is surely not what Con-
gress intended when it required courts to include drug testing
as an explicit condition of supervised release.

  I respectfully dissent.
