nineteen bass on one of the six united states versus miller council please proceed when you're ready to did so responsibility to determine the amount of drug tests that approach a base or should be subjected to during the probationary period it states again quite plainly 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 submit to a drug test in fifteen days of release on super she's only fifteen days of release on supervised release and at least two periodic drug tests thereafter and the key language there is come to as well and that is that delegating a the amount of drug test that an individual month might be subjected to is very clearly an article for a function it is beyond what would be considered a missed ministerial that's correct some of those cases were not on planar but the court's opinion regarding what was being stated is not is no different and that is simply that the statute is very clear in states that the you number of tests shall be punishment and therefore a substantial liberty interest is at stake and we know this from the supreme court decision and all which very clearly stated that being placed on supervision by weatherby probation or supervised release is a form of file if an individual were to file late that condition in other words he filled take a drug test or then he would be automatically mandatorily placed either in jail or in prison so there is absolutely a substantial liberty interest that is at stake in this matter mr miller's own liberty is very liberty is at stake so there is let me interrupt i think you're focused on whether there is an error and whether whether you're arguing statutory air constitutional error the case of the delia and to he to both say because the defendant can't show that the amount that was ordered by liberty has a stake i understand your honor to say that what's the what's the difference and i think there is an inherent desire or need on behalf of this court and of all the courts to give the statute it's here to the statutes clear statutory language the government's argument on this issue your honor is simply that or part of it anyway is that the language of the statute for somehow some some wiggle room in that it can be interpreted as allowing for the probation officer to make that distinction and i realize your honour's at asked me about case law regarding the plane or argument but i would submit to this court that the government has provided no case law for this notion that the probation office is better situated to determine how many how many drug tests should be given and why this court should ignore the clear language of the statute no a special conditioner and there are six there is like maybe seven you want to paragraph and the disputed one says begins you must submit to substance abuse testing and doesn't say who's doing the test and you in your grief say apparently that's probation officer but why should i read it that way why shouldn't i read or write with what's above  namely that there is a program professional tester who's going to be testing and this paragraph simply says here's what you have to abide to when the program tells you to do  t i think you're on are saying is that there's this the special condition as we read it is incorrect in that it doesn't necessarily require the probation officer to make that decision i would point out a couple things one that seems directly conned contrary to what the government's argument was is that that it was specifically directed towards the probation officer and that the probation officer should have that it should have that ability i think that and some of the other cases that i cited that i read it  appropriate well your honor makes a good point and it kind of brings me to another issue that i have regarding this special condition and that is that due to the fact that there were no other were there was no particularized finding by the court regarding the need for the special special condition it's rather confusing with regard to what your honor is asking because we know that there are two other conditions which would require mr miller in this case to be subjected to drug testing or substance abuse testing we have the mandatory condition we have the special condition number two which requires that he would have to undergo substance abuse treatment and under that substance mistreatment typically an individual is subjected to additional testing as well so part of the problem that we have with the special condition is not just that it was an act that in violation of eighteen u s c three thousand five hundred and eighty three dollars b but also the fact that there were there were no special there was no particular rights findings or genuine or generalized statement of facts which would support the issuance of that of that special condition that is very clearly required by well your honor we again there is a substantial liberty interest at stake for work for mr for mr miller it is impossible for in this situation for the defense for defense counsel to determine exactly what was the need for this rd special condition when indeed that condition has already been put in place by two others so the notion i think that there's always a  an interest in the public in general to know that when there is a sin circuit jurisprudence which is directly on point that the that the the general public can have faith that this court and other courts will follow that jurisprudence will follow the fact that there is case law which is which is directly on point and in this case it is undisputed it is quite clear that the court needs to make some sort of a special finding and one thing i'd like to touch on you keep saying that it's a liberty interest not the case you rely on to delia and to delia the fits the st circuit concluded that it's the statutory error but it's not a constitutional heir it's not a liberty and you want to respond to that your honor i think that there is still an interest in this court and hearing to what the clear language of the statute of the statute says that the test should be determined by the court then that is a clear mandate i'm half of the legislature that those tests be determined by the court further more i mean if you were to skip down and read the nd layer of the nd sentence in that and that same statute it seems to provide support for that for the same notion and that's the nd sentence specifically states the condition same statute for this notion that the legislature the legislative intent was clear and that the court of appeal actually that the district court must be the court which determines the amount of time or the amount of drug test which an individual might be facing the government's argument that the probation officer is in the closer or a better position to make that decision is quite frankly it's not a good argument probation officers on a regular basis reach out  to counsel when they've identified that an additional a supervisory condition may be necessary maybe it's more to count more testing is needed or less testing is needed they reach out to defense counsel they reach out to the prosecutor to see if they agree or would stipulate to the to the change and if not the probation officer takes the issue to the judge who then holds a hearing determines whether or not the new the new condition is necessary so this notion that the for another example of that your honor would simply be if the probation officer is he did in a better position why not let the suit the probation officer determine how long the probationary period is a lot in the interim that's quite simple it's provided by the statute it clearly says that if it's a class a felony you do five years of it's a class b felony it's three years but under the government's argument if the probation officer is situated closer to the defendant i'm sorry so much times i well yes your honor i will that was my plan i was going to talk about the substance abuse testing condition not just jump right in it seems like he's got three general attacks on the substance abuse testing condition and the st that i'm going to take up is the statutory delegate argument have mr miller argues that this statute is clear that the court must determine all of the drug tests and that's not what the statute says respectfully and here is i'm going to focus on the language it says the courts have also order as an explicit condition of supervised release of the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within fifteen days of release on supervised release and at least two periodic protests there after as determined by the court and mr miller's latch on that language and says that means the court has to determine all of the drug tests for the maximum number of drug tests and in the way it should be read i think focusing on this at least language is a congressman said the court the district court and to determine the minimum number of tests it's saying a district court you need to determine those three that's the floor but you need to otherwise determine the minimum it could be five because the seven that's what the court saying and i know that mr miller has cited these three out of circuit court cases  that what that's what that language is doing it's not saying the court needs to determine all of the tests or the maximum number of tests that is just the minimum number of tests it took and i tell you at a minimum i'm sorry what was that you says and submit to a drug test within fifteen days of release on supervised release and at least two periodic drug tests thereafter so one was plus two to the police if she's just repeating my language at the stats combination officer you get to figure out how many but he can't go under two after the initial one i think that's what the district court did it and i'm just focusing on the language to say what is congress saying what is it saying in terms of what must the district court do and it's and you must set the minimum and it says it's got to be at least three but i think this language could be read to say the minimum could be more in the district court determined that it could be five it could be seven  have said they're united in saying that the defendant trail prejudice can show that the probation officer would impose something more strict than the district court so we feels under this problem at least with  respect to the statutory delineation argument and are we dealing with that constitutional area here no your honor i would submit that you're not and the reason that it is that is is because this has to do with rehabilitation not punishment and that's what this court's precedents have said about whether there's an unconstitutional delegation of authority is a punishment or is it rehabilitation and then the narrow issue here that you know that mr miller says has been delegated is not whether or not he should be incarcerated if he that that decision is still in the district courts so there's no delegation the district court is still making that decision about revocation the only thing that's been delegated here is the number of tests and certainly mr miller could fail that test but the person who will determines that revocation it's district court so there can't be an unconstitutional delegation of authority about the revocation because the probation officer is not making that repetition well you have nine and a half minutes and i want to take one  f what i want you to respond to as the same question that i asked opposing counsel which is why are you conceding that that disputed paragraph is speaking about the probation officer testing as opposed to the program testing your honor i think condition and we can interpret it in a way that violates the constitution and implicates liberty interest or we can interpret it in a way that does not we take the more restrictive interpretation and assume the district court didn't intend to violate the statute or the defendant's constitutional rights you're i think you could affirm us that way in the constitutional issue if the court wants to i think it also just make the determination that  is talking about probation officer it's not unconstitutional for the reasons that i don't like but it is about rehabilitation it's a drug test it's it's it's the purpose is to try to get this guy back on his feet after he's he's out of i couldn't find anywhere in the district court specifically considered it but on the rd and the rd prong it should still be affirmed and for this reason there's a connection there's a there's a connection between alcohol abuse and the defendant's alcohol use was remote in time but the court reasoned at least in part that we wanted to make sure the probation officer wanted to make sure that he stayed on the he'd been traded one vice for another is his drug addiction for this  affirm this condition is that there's always a chance you know i'm not saying that mr miller would suddenly get addicted to another drug but if he tried another drug impairs your judgment most drugs do and he could you know while trying that drug could be tempted to go back to drinking alcohol which is something that you know is probation officer would be concerned about and i think for those reasons this condition can be affirmed here i'm planning a review one thing i wanted to and i just want to make clear that mr miller you may still have a remedy if if it becomes an issue down the line just want to flag that issue for the court and finally i'll turn to the subject of reasonableness of the sentence unless  in fifty seven she considered the injuries to the victims you considered mr miller's background his dui related convictions eight of them three of which he had a blood alcohol content above point twenty five a guideline sen it's not just this is not just a rehabilitative effort this is rehabilitation plus punishment as united states supreme court stated in golf being being on supervised release or probation and there's a substantial limitation on individual liberties  potentially of having to disregard the the the condition and then make the argument that he shouldn't have to or go along with the condition which is very well and the defense is regarding that special condition is more narrow than that we didn't contest the drug the requirement that he go through drug counseling we didn't object to the mandatory condition that he subject to drug testing and we recognize that there is potentially that connection the problem that we see is that when a when you do already have those other two conditions in place and then you have yet a rd condition which seems to already be covered with no additional findings