United States v. Paul, John E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-4024
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN E. P AUL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 79—Barbara B. Crabb, Chief Judge.
____________
A RGUED JUNE 2, 2008—D ECIDED S EPTEMBER 8, 2008
____________
Before E ASTERBROOK, Chief Judge, and R OVNER and
W OOD , Circuit Judges.
R OVNER, Circuit Judge. The district court ordered
defendant-appellant John E. Paul to serve a prison term
of forty-six months and, upon completion of that term, to
undergo frequent drug testing as a condition of his three-
year period of supervised release. See 18 U.S.C. § 3563(a)(5).
Paul appeals the order that he undergo drug testing,
contending that because he has no history of drug abuse,
2 No. 07-4024
the court had no ground on which to impose this condi-
tion. We conclude that the court did not abuse its dis-
cretion in ordering the testing.
I.
After Paul pleaded guilty to a charge of wire fraud, see
18 U.S.C. § 1343, the district court ordered the Probation
Department to prepare a pre-sentence report (“PSR”). In
discussing Paul’s background, the PSR did not indicate
that Paul had ever used narcotics illegally. However, the
PSR’s summary of his criminal history did report that
he had three convictions for operating a motor vehicle
while under the influence of alcohol, that the last of those
offenses also involved flight from a police officer, bail
jumping, and resisting arrest, and that he was on proba-
tion from that third conviction when he committed the
instant offense. R. 23, PSR ¶¶ 47-49. It noted further that
although Paul had been “compliant” with a 2004 sub-
stance abuse treatment program in which he participated
by court order, he reportedly did not view himself as an
alcoholic, did not attend Alcoholics Anonymous meetings,
and did not otherwise make an effort to establish more
sober habits. R. 23, Addendum to PSR ¶ 72. In describing
the supervision plan to which Paul would be subjected
upon release from his incarceration, the PSR noted that
among other conditions, Paul would “be required to
abstain from the use of alcohol and illegal drugs and
participate in a program of substance abuse counseling
and testing as directed” by the court. R. 23, PSR ¶ 94.
After hearing the parties’ arguments as to an appropriate
sentence, the court ordered Paul to serve a prison term
No. 07-4024 3
of forty-six months (in the middle of the range advised
by the Sentencing Guidelines), to be followed by a three-
year term of supervised release. The court also ordered
Paul to undergo drug testing as a condition of that release:
You are to abstain from the use of illegal drugs and
alcohol and participate in substance abuse treatment.
You shall submit to drug testing beginning within
15 days of your release, 60 drug tests annually thereaf-
ter. The probation office may utilize the Administrative
Office of the United States Courts[' ] Phased Collection
Process.
R. 26 at 16; see also R. 15 at 3 ¶ 7. The phased collection
process referenced in the court’s order is a process by
which a probation officer gradually decreases the number
of drug tests administered to an individual as he estab-
lishes a record of sobriety. See Administrative Office of U.S.
Courts, Probation and Pretrial Services Division, Mono-
graph 109: “The Supervision of Federal Offenders,” at IV-
21 (revised Mar. 2007). After the court finished announcing
the sentence, Paul’s counsel questioned the drug-testing
requirement:
PAUL’S COUNSEL: Okay. And last, one of the condi-
tions of supervised release was
drug testing. I don’t see a history
of drug use from Mr. Paul.
I don’t know if that’s—
THE COURT: Well, he does have alcohol use.
PAUL’S COUNSEL: He does. But urine screens,
I don’t know if—I understood it
4 No. 07-4024
to be urine screens. I don’t know
if that would—I could under-
stand counseling, but I don’t
know if a urine drop—
THE COURT: And if his drug tests are all clear
for a period of time, that’s why
there is the provision for the
Phased Collection Process.
PAUL’S COUNSEL: Okay. Then that’s all I have,
Your Honor.
THE COURT: Okay. Court will recess.
R. 26 at 19-20.
Paul’s appeal repeats and expands upon the point his
counsel made to the district court. Paul argues that in
the absence of a history of illegal drug use, it is unreason-
able for the court to require him to undergo testing for
such drug use. He adds that the obligation to submit to
sixty drug tests per annum imposes a greater restriction
on his liberty than is necessary to verify his compliance
with the directive that he abstain from illegal drug use.
II.
We reject the government’s threshold contention that
we lack jurisdiction over this appeal because Paul waived
any objection he might have had to the drug testing
requirement. See United States v. Jacques, 345 F.3d 960, 962
(7th Cir. 2003) (“Waiver extinguishes any error and pre-
cludes appellate review.”). The government reasons that
No. 07-4024 5
although Paul’s counsel initially questioned the district
court’s decision to require drug testing, he ultimately
posed no objection to this condition but rather assented
to it by remarking, “Okay, . . . that’s all I have” after the
court explained that the phased collection process would
allow for amelioration of the testing if Paul’s initial tests
were all clear. But waiver is the deliberate relinquishment
of a known right, United States v. Olano, 507 U.S. 725, 733,
113 S. Ct. 1770, 1777 (1993) (quoting Johnson v. Zerbst, 304
U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)), and we think it
would be reading too much into a brief colloquy to charac-
terize counsel’s mere utterance of the word “okay” as a
signal that Paul’s counsel was deliberately abandoning
any challenge to the testing. Nor is it dispositive that
counsel did not conclude the colloquy by restating or
renewing Paul’s objection to the condition. Once a court
has conclusively ruled on a matter, it is unnecessary for
counsel to repeat his objection in order to preserve it for
appeal; in the federal system, “[e]xceptions to rulings or
orders of the court are unnecessary.” Fed. R. Crim. P. 51(a);
see, e.g., United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.
2005). A better argument might have been that because
drug testing is one of the routine conditions of release
identified in both the statute and sentencing guideline
pertaining supervised release, 18 U.S.C. § 3563(a)(5);
U.S.S.G. § 5D1.3(a)(4), and the prospect of testing was
mentioned in the PSR, R. 23 PSR ¶ 94, Paul was on
notice even before the court announced his sentence that
he likely would be required to undergo some amount of
drug testing, see United States v. McKissic, 428 F.3d 719, 725-
26 (7th Cir. 2005), and that, consequently, he was obliged
6 No. 07-4024
to expressly object to the requirement at the sentencing
hearing on pain of forfeiting all but plain error review if
he did not. See, e.g., United States v. Ross, 475 F.3d 871, 873
(7th Cir. 2007); McKissic, 428 F.3d at 721-22. But the gov-
ernment has not made that particular argument, and so
we now take up the merits of Paul’s objection.
We review the conditions a district court has imposed on
a defendant’s supervised release for abuse of discretion.
E.g., United States v. Hook, 471 F.3d 766, 770 (7th Cir. 2006),
cert. denied, — U.S. —, 127 S. Ct. 2081 (2007). A court abuses
its discretion when it resolves a matter in a way that no
reasonable jurist would, or when its decision strikes us as
fundamentally wrong, arbitrary, or fanciful. Greviskes v.
Universities Research Ass’n, Inc., 417 F.3d 752, 758 (7th Cir.
2005) (quoting Maynard v. Nygren, 372 F.3d 890, 893 (7th
Cir. 2004)).
18 U.S.C. § 3583(d) identifies a number of mandatory
conditions that a court “shall” impose on a defendant’s
supervised release along with a second set of discretionary
conditions that a court “may” impose in appropriate
circumstances. Drug testing is one of those conditions that
a court must impose, although Congress has granted the
district court discretion to exempt a defendant from
complying with this particular condition when the court
is convinced a defendant is unlikely to abuse a controlled
substance. Section 3583(d) states, in relevant 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-
No. 07-4024 7
vised release and at least 2 periodic drug test thereafter
(as determined by the court) for use of a controlled
substance. The condition stated in the preceding
sentence may be ameliorated or suspended by the
court as provided in section 3563(a)(4).
Although the statute cross-references section 3563(a)(4),
that is a mistake, for the intended cross-reference
obviously is to section 3563(a)(5), a parallel provision
concerning mandatory drug testing as a condition of
probation. See United States v. Tulloch, 380 F.3d 8, 12 n.4 (1st
Cir. 2004) (per curiam); United States v. Coatoam, 245
F.3d 553, 556 n.2 (6th Cir. 2001) (coll. cases); see also United
States v. Guy, 174 F.3d 859, 861 (7th Cir. 1999).1 Section
3563(a)(5) provides that drug testing “may be ameliorated
or suspended by the court for any individual defendant
if the defendant’s presentence report or other reliable
sentencing information indicates a low risk of future
substance abuse by the defendant[.]” A district court
has broad discretion in deciding whether to exercise
its authority to ameliorate or suspend this mandatory
requirement. As we observed in Guy:
This language is hortatory, rather than obligatory, and
vests the district court with wide decisional latitude.
If Congress wanted to grant low-risk defendants
1
Supervised release functions similarly to probation, although
the two are recognized and treated as distinct means of super-
vising individuals outside of the prison setting. See U.S.S.G.
Ch. 7, Pt. A, intro. comment. (n.2) (2007); Knight v. U.S., 73
F.3d 117, 119-20 & nn.5-6 (7th Cir. 1995).
8 No. 07-4024
automatic exemptions from drug testing, it could have
written § 3563(a)(5) to read that the testing requirement
“shall” or “must” be “ameliorated or suspended” if the
defendant is a low risk for future substance abuse.
It did not, however. . . .
174 F.3d at 861-62.
On the facts before us, we cannot say that the district
court abused its broad discretion in declining to suspend
or ameliorate the statutorily-mandated testing or in
ordering Paul to submit to sixty drug tests per year. Paul
has no history of drug abuse, but that alone does not
demonstrate that the district court was compelled to
suspend or ameliorate the testing. See Guy, 174 F.3d at
862 (upholding on plain error review a requirement that
defendant with no history of drug use undergo up to 104
drug annual tests as a condition of supervised release); cf.
United States v. Jordan, 485 F.3d 982, 985 (7th Cir.) (drug
or alcohol treatment conditions are not necessarily re-
served for those with extensive histories of drug or alcohol
abuse), cert. denied, — U.S. —, 128 S. Ct. 312 (2007). Paul
does have a history of alcohol abuse that resulted in three
separate drunk driving convictions and an additional
arrest for the same offense; he also has a gambling prob-
lem. R.23 PSR ¶¶ 47-49, 55, 63, 69, 70-73. Both of those
factors are consistent with an addictive personality
which might well lead him to the use of illegal drugs. The
district court also viewed Paul’s abuse of alcohol and his
history of multiple alcohol-related crimes as evidence that
Paul did not genuinely appreciate the gravity of his
conduct, had not steered himself back onto a path of
No. 07-4024 9
obedience to the law, and was not “a person who [was]
really safe at this point.” R. 26 at 11; id. at 5-6, 13. A regime
of drug screening will help to ensure that Paul does not
trade one vice for another and that he remains on the
path to rehabilitation. That screening will intrude upon
Paul’s privacy and liberty, but given the nature of super-
vised release, United States v. Hook, supra, 471 F.3d at 772,
and the need to protect the public against future
criminal conduct, 18 U.S.C. §§ 3553(a)(2)(C), 3583(c), we
cannot say that the intrusion is unjustified. See United
States v. Sines, 303 F.3d 793, 801 (7th Cir. 2002) (although
a person on supervised release does not lose all of his
constitutional rights, those rights “are not unfettered”)
(citing United States v. Schave, 186 F.3d 839, 844 (7th Cir.
1999)). Moreover, the phased collection process that the
district court referenced in its order allows for the re-
duction of the testing over time as Paul demonstrates a
pattern of sobriety. With Paul’s cooperation, the testing
therefore will not be as burdensome as it might other-
wise seem on its face. See Guy, 174 F.3d at 862.
III.
The district court did not abuse its discretion in re-
quiring Paul to undergo drug testing as a condition of his
supervised release. We therefore A FFIRM Paul’s sentence.
9-8-08