                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




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

                             Submitted August 2, 2006*
                              Decided August 2, 2006

                                      Before

                   Hon. RICHARD D. CUDAHY, Circuit Judge

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 05-3167

UNITED STATES OF AMERICA,                    Appeal from the United States District
         Plaintiff-Appellee,                 Court for the Northern District of
                                             Illinois, Eastern Division
      v.
                                             No. 03-CR-733-1
DEVAN M. BREMBRY,
          Defendant-Appellant.               Blanche M. Manning,
                                             Judge.

                                    ORDER

       Devan Brembry robbed a bank located inside a grocery store while toting a
BB gun that looked like a semiautomatic pistol. The government charged him with
bank robbery, see 18 U.S.C. § 2113(a), and he pleaded guilty without the benefit of a
plea agreement. He was sentenced to ten years’ imprisonment to be followed by
three years’ supervised release. As a special condition of that supervision the
district court ordered Brembry to “participate in a drug aftercare program which
may include urine testing at the direction of the probation officer.”


      *
        After examining 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. 05-3167                                                                    Page 2

       On appeal Brembry faults the district court for ordering him to submit to
urine tests as a condition of his supervised release without specifying a particular
number or range of tests. He did not object to the special condition of supervised
release at sentencing, rendering our review for plain error only. See United States
v. Guy, 174 F.3d 859, 862 (7th Cir. 1999). The responsibility for determining the
number or range of drug tests to which a defendant must submit lies with the
district court alone and cannot be delegated. 18 U.S.C. § 3583(d); United States v.
Bonanno, 146 F.3d 502, 511 (7th Cir. 1998). The improper delegation can constitute
plain error, see United States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999); United
States v. Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), and the government
concedes here that it does. But see United States v. Padilla, 415 F.3d 211, 224 (1st
Cir. 2005) (en banc) (holding that failure to specify number of urine tests defendant
must take as condition of supervised release does not constitute plain error). We
agree with the government’s concession. We therefore REMAND for the district
court to determine the number or range of urine tests Brembry must undergo while
on supervised release, and to amend the judgment accordingly.
