authority to determine whether our clients must undergo substance abuse treatment as part of supervised release i will be addressing the testing question of tests required as part of supervised release with the district court and not with the probation officer the statute says quote the court shall also order as an explicit condition of supervised release that the defendant release quote participate in a program of drug or alcohol abuse treatment including your analysis testing and counseling as directed by the probation officer the district court clearly did go through supervised release statute and article three we wouldn't say though that the standard of special conditions in this case were not in the u s in terms of delegating the authority whether whether it's to submit someone to testing to the probation officer and know i would think both sides would want to have a nice clear answer about how the form should read i would agree with that your honor and all the court has to do all the district that's almost a hundred you could see a hundred and frankly at the practical impact here is that there's going to be that because what happens as i understand it is you have an ongoing testing and treatment together and when you get indications or where the probate is as as so called delegated here where the probation officer has reason to suspect that maybe the test is going to turn out positive because you've been associated with the wrong people risk ottens other reports orders a test now under your  that we had either a the district court setting a high maximum so basically have exactly what you have now it seems you've got a high ceiling there someplace or b everybody rushing back to the court to get permission to have an additional test based on factual circumstances arise in the course of probation i don't see how either of those really advance the game at all but are those the alternatives refacing those could be the alternatives you're facing what could happen is that the district court could set a certain number of don't test that would of tests you would reasonably ever impose want to wreak if let's say the probation officer says gives one a week then the district court then the form from then on reads the that the drug test shall  test they don't have to if he's doing well plus the fact counsel but the person who's on this program reports to the probation office on a regular basis either once a month or close a month may get a chance to see these people and they determine whether these people are doing what they're supposed to do and i don't i don't think that you contemplate that these these people on on this program with reports would judge once a month or twice a month a lot of places they see these people regularly and they are trained to know what to look for when they see them and many times they find that even if people say that we're doing these things turns out they're not and they have learned ways to get around it you know when i think with people unsophisticated inhaling this matter you have to have people are so most sophisticated to see it and report back to the judge because certainly the defense is going to do that it's going to try to go around the system if you possibly can but certainly the probation either can make recommendations to the district court and i just record recommendations i'm not saying that there should be no interaction between the probation officer and a district court it's just that in this case thirty five thirty three d expressly that's the authority to impose substance abuse testing conditions with the have any problem with the fact that once he goes into a treatment program the number of drug tests can be determined by the people of minister in the program i do not your honor however the only issue you have is whether under this it's the court or the probation officer that made the decision as to whether he went into the program that's absolutely correct and again just to clarify that the testing it out under the guise of treatment however  i believe that the language of the condition would have to basically say the defendant shell undergo drug treatment during the course of treatment the defendant shall it may be subjected to your analysis testing or drug testing of this whatever nature  do what i have issue with is that the language the at the discretion of the probation office modifies what the treatment condition and it's not clear from this from the language of the condition whether or not to get sentenced in these cases would have to undergo drug treatment the ultimate decision as to whether or not the person enters treatment is left to the probation office i believe that condition the problem is compounded by the fact of the condition of the drug testing condition which michele and burke addressed in that drug testing occurs from the day that the person is put on supervised release whether or not they are subjected to treatment during the course of treatment i did not object to the person undergoing drug testing and the number to be determined by  that goes to the probation officer now you're suggesting the possibility is there the probation officer says no programs required at all why flip it around is that bad for your client for the probation obviously we don't have to bother the program your claim i'm satisfied get out of here that it's in effect with that would of course not be bad for the my client however that what is the problem is that the language on its face is ambiguous it can be read in either direction and the preparation for exactly the reason you stated under the language of this condition a probation officer can say no you don't have to go to treatment or yes you do have to go to treatment it's simply a legal issue that the court in not telling you that decision to the probation office you want us through that the other way i  would be legal and i what i would like to do is follow the rule that the second circuit that united states be peterson which says because of the ambiguity in the language that there are two possible readings that it must be reversed counsel what is your same thing you've got a client here and i can't figure out how your client's interests are being furthered by a position that seems to say you've got to make my client do something rather than give the pervasion officer the possibility of saying you don't have to do it well your honor the problem is there's simply no meaningful judicial review of the terms of the supervised release and we don't know what happens to each and every defendant until after a revocation as a passenger and then the person has to challenge the revocation o putting them in jail that let him go back to work so he can have some kind of a meaningful life and they're going to treat him and the government is paying for him to be treated as he suffered by that and i'm not i'm not challenging the uplink ability of this condition to mr steven recommendations to the court and the court may then institute the appropriate sentence if that sense turns out to not be appropriate the probation officer can come back and ask for a modification it's just the language of the statute states clearly that it's and what harm do they suffer if somebody monitors on a regular basis not your own i think exactly what you just said is it is my point that if the court gives them treatment we i would not be standing here today the problem is that the court whether the treatment program has been ordered by the court or whether the court left it up to the probation officer to decide whether there should be treatment program i does that constitute a determination by the judge that the defendant challenged her to dissipate in a program or does it mean that the judge has said to the probation officer you make t unlawful our question is can we say that the condition means that if we do there's no more issue and that's that part of the case the other part of the case is is the court required to set a maximum number of times outside of treatment that the probation officer can require drug testing they're not contesting that when he's in treatment condition of the one in fifteen days and then at least two more that if that's all the court says they will construe that it's a maximum of three and then if you want more you've got to go back to the court  change what's your position on that well let me address the first the treatment issue here in the order is explicit treatment is mandatory there's no improper delegation and judgments directed and if we work you can through the form as you suggest being a direction by the court that the defendants participate in these programs there's no for the legal  authority here of probation and probation does have the authority to conduct further testing that's just part of that's administrative duties that's properly delegated to by the court the as determined by the court language i know that the appellant focuses in their arguments and their briefs on this small some part of the statute that the asked him and by the court somehow you know delegates that the court must set a maximum number of tests for for it to be conducted  created it was an attempt to address concern that there wasn't enough testing being done actually there was under testing and was becoming a recurrent problem and because of this congress said that there should be a minimum number of tests that the court should district court's order here and the district court's order tracks the statute almost verbatim it's not in progressively delegating any authority to the probation office our testing provision just simply tell probation to carry out the administrative duties that are necessary to monitor defendants which is quite different from a melendez case where the melendez case there was an expressed delegation of authority to the probation office and that's improper and again as to the treatment conditions the language of our orders much different than the melendez case because again the lender's order clearly delegated the decision we lose on that point and it's difficult to like what i find classical and what the united states find practical maybe two to three things and i believe that that would be correct assuming that you find in there there after puranas as determined as of course i think we have to tell it like a statue so this actually means what it says and that is what congress intended but the probation officer have authority to order additional testing under a differen thirty six fifty five was actually replaced by the sentencing reform act in one thousand eight for that but no one in death actually acknowledges that the sentencing reform an act requires that quote the court may order as a for the condition of supervised release any conditions set forth as a discretionary condition of probation in section thirty five sixty three including requirements that i defended undergo available medical psychiatric or psychological treatment including treatment for drug or alcohol dependency as spec authority to determine the maximum number of contests with the court and in that same statute congress and then to the provisions the general provisions regarding the duties of probation officers by specifying that quote the chief probation officer sh and the difference between the nation eighty four and the one thousand nine hundred four act i would submit narrows the probation officers authority and clarifies the congress intended that the probation officer support the court by providing ministerial saying that the error at issue the improper delegation of judicial authority for the testing was not subject to quote unquote the usual plan a review from the supreme court and when versus united states the two thousand three supreme court case essentially followed that analysis as well in that case that dealt with an improperly constituted ninth circuit panel consisting of an article four judge and few article three judges of the court the supreme court in that