Œ After examining the briefs and the records, we have concluded

that oral argument is unnecessary. Thus, the appeals are

submitted on the briefs and the records. See Fed. R. App. P.

34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1492

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

JOSE A. TEJEDA,

Defendant-Appellant. ____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 119—J.P. Stadtmueller, Judge.

____________

SUBMITTED NOVEMBER 27, 2006Œ—DECIDED

____________

No. 06-1622

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

DANIEL L. DROPIK,

Defendant-Appellant. ____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 247—Rudolph T. Randa, Chief Judge.

____________

SUBMITTED NOVEMBER 27, 2006Œ—DECIDED FEBRUARY 7, 2007

____________
2 Nos. 06-1492 & 06-1622

Before WOOD, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge. The two cases we consider today

are related only by the issue they raise: whether plain

error exists if a district judge delegates too much authority to a probation agent over drug tests to be given a

defendant during his term of supervised release.

Jose Tejeda entered a guilty plea to possession with the

intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1) and 852. He was sentenced to a

term of 120 months imprisonment to be followed by

8 years of supervised release. The district judge entered

as a special condition of supervised release that Tejeda

“participate in a program of testing and residential or

outpatient treatment for drug and alcohol abuse, as

approved by his supervising probation officer, until such

time as he is released from such program.” There was no

mention of the specific number of drug tests which

could be required.

Daniel L. Dropik entered a guilty plea to two counts of

racially motivated arson damaging religious property, in

violation of 18 U.S.C. § 247(c) and (d)(3). One count grew

out of activity in Wisconsin; the other a transfer to the

Eastern District of Wisconsin pursuant to Federal Rule of

Criminal Procedure 20 from the Western District of

Michigan. He was sentenced to two concurrent terms of

63 months imprisonment and two concurrent 3-year

terms of supervised release. As a special condition of

supervised release, he was ordered to “participate in a

program of testing and residential or outpatient treatment for drug and alcohol abuse, as approved by the

supervising probation officer . . . .” No limit was placed on

the number of drug tests which the probation office

could require.

It is the condition regarding drug testing as directed by

a probation officer during the term of supervised re-
Nos. 06-1492 & 06-1622 3

1 Our decision today affects only the issue of drug testing. It is

not meant to have a direct effect on our cases involving restitution, such as, for example, United States v. Mohammad, 53 F.3d

1426 (7th Cir. 1995), or United States v. Pandiello, 184 F.3d 682

(7th Cir. 1999).

lease—a condition that in many cases will not come

into play for many years—to which both defendants—and

several who have gone before them—object. The problem

is that neither defendant (with counsel at his side) objected, at sentencing, to the condition when it was imposed. So we must decide, under the circumstances,

whether the situation (which may be not all that uncommon) qualifies as a plain error that we must notice on

appeal.

The authority to order drug testing comes from 18 U.S.C.

§ 3583(d), which sets out conditions of supervised release

and states, in 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 submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance.

In United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.

1998), we found that granting the probation agent authority as to testing was error. In that case, the judge ordered

drug testing “within the discretion of the probation officer.” Relying on our cases in which the district courts left

too much discretion in the hands of the probation office

regarding the payment of restitution,1

 we determined that

the order in Bonanno must be set aside. We said the

statute made clear that it was up to the court to determine

the number of drug tests to which a defendant must
4 Nos. 06-1492 & 06-1622

submit. However, Bonanno contained no discussion of

whether, in the absence of an objection at sentencing, an

improper delegation of the court’s authority to the probation officer should fairly be classified as plain error.

Bonanno aside, it is not necessarily a foregone conclusion that every hint of discretion given to a probation

officer constitutes error. It may be that in a proper case

we would agree with the Court of Appeals for the Ninth

Circuit that if a defendant is ordered into a treatment

program, it would not be error to grant the probation

officer discretion to designate testing which is incidental

to the program. United States v. Maciel-Vasquez, 458

F.3d 994 (9th Cir. 2006). In the cases before us, however,

the condition regarding drug testing seems to be boilerplate language, which grants too much discretion to the

probation agent.

Assuming error is present, however, it does not follow

that we must necessarily correct it. A right, even a constitutional right, may be forfeited in a criminal case by

the failure to object to the error before the trial court.

Yakus v. United States, 321 U.S. 414, 444 (1944). On the

other hand, Fed. R. Cr. P. 52(b) provides that a “plain

error that affects substantial rights may be considered

even though it was not brought to the court’s attention.”

The rule leaves the decision whether to correct the forfeited error “within the sound discretion of the court of

appeals.” United States v. Olano, 507 U.S. 725, 732 (1993).

In order to correct a forfeited error, we must find that

Rule 52(b) applies. For the rule to apply, there must be

error, that is plain, and that affects substantial rights. It

is the last requirement which causes the most difficulty.

Olano says that in most cases the error must have been

prejudicial; that is, it must have affected the outcome of

the district court proceedings. It is up to the defendant to

show that the error was indeed prejudicial. The standard

which guides the exercise of discretion is whether the
Nos. 06-1492 & 06-1622 5

error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Olano, at 736, quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936); see

also United States v. Sebolt, 460 F.3d 910 (7th Cir. 2006).

Whether the delegation of an aspect of drug testing on

supervised release is plain error is something we have

assumed in several orders but not decided in published opinions. (More on this later.) Other courts have

determined that the delegation of authority regarding

drug testing does not constitute plain error. In United

States v. Padilla, 415 F.3d 211, 216 (1st Cir. 2005), the

Court of Appeals for the First Circuit determined that

requiring a defendant to submit to drug testing “as

directed by the U.S. Probation Officer” was error, but it

was not plain error. The court pointed out that plain

error analysis as to sentencing matters requires a defendant to show a reasonable probability that, but for the

error, the sentence would have been more favorable to

him. A practical problem for the defendant in a drug

testing case is that he cannot show who would demand

more tests, the judge or the probation officer. The Padilla

court also noted that the requirement in the statute

that an Article III officer impose the condition is simply

a statutory choice, not a constitutional requirement. The

error itself was seen as “incidental to the defendant’s

sentence as opposed to one of its core components.” Id. at

222. It constitutes an imperfection “in a judicial system

administered by human beings” as opposed to an error

that is “offensive to the very principles on which that

system is based . . . .” Id. See also United States v. OrtizTorres, 449 F.3d 61 (1st Cir. 2006).

The Court of Appeals for the Ninth Circuit has also

determined that, in the absence of a treatment program,

granting the probation officer authority to require testing

is error. As in Padilla, it is not plain error, however,
6 Nos. 06-1492 & 06-1622

2 We are, of course, aware that Local Rule 53 was in effect at the

time of these orders but find it necessary to mention them merely

to acknowledge our change of course. They carry no weight as

precedent, so we are not technically overruling anything.

3 We intend no criticism of the government for conceding the

point. Our cases involving restitution certainly support the

concession. More importantly, we encourage thoughtful evaluations of which issues should be pursued. It’s just that this time

we disagree.

because it does not seriously affect the fairness, integrity,

or public reputation of the proceedings.

On the other hand, as we said, in several unpublished

orders (now called “nonprecedential dispositions” under

new Fed. R. App. P. 32.1) we have accepted the government’s concession that plain error exists in the delegation

of drug testing decisions to the probation office. See United

States v. Brembry, 2006 WL 2243827 at *1; United States

v. Sam, 2006 WL 1586010 at *1; United States v. Perry,

2005 WL 1253875 at *2.2

 Sometimes, though, even with

a government concession, other factors may indicate

that there is no plain error. In United States v. Flowers,

2006 WL 394965 at *1, the government conceded that

plain error existed, but because the defendant would be

subject to removal from the United States by the Department of Homeland Security immediately upon his

completion of his term of imprisonment, we found that

the error was not plain. The government concessions

were made based on an analogy with cases involving

the delegation of decisions regarding restitution, cases

like United States v. Mohammad, 53 F.3d 1426 (7th Cir.

1995), and United States v. Pandiello, 184 F.3d 682 (7th

Cir. 1999). These cases imply that when an improper

delegation is made, plain error inevitably exists.3

 We

now reject that approach.
Nos. 06-1492 & 06-1622 7

Fed. R. Cr. P. 52 requires more. The rule is not a substitute for a properly lodged objection at trial or during a

sentencing proceeding. Even in a death penalty case, the

Court has said, “Appellate review under the plain-error

doctrine, of course, is circumscribed and we exercise our

power under Rule 52(b) sparingly.” Jones v. United States,

527 U.S. 373, 389 (1999). A delegation of discretion over

the mechanics of drug testing—when the testing itself

is ordered by the court—can hardly be said to affect

substantial rights of a defendant. As the court said in

Padilla, it cannot be shown that the defendant would

have been better off had the judge imposed the details of

the drug testing himself. Neither can it impugn the

fairness, integrity, or public reputation of the criminal

proceedings. On the contrary, a remand on such an issue

could well impugn the reputation of the courts among

the public. The public is, we think, somewhat fatigued

by expensive, technical, but essentially meaningless doovers. That this is such an issue brings us to another

reason that plain error cannot be found. Should the

probation officer impose onerous requirements, the

condition requiring drug testing can be modified “at any

time prior to the expiration or termination of the term of

supervised release . . . .” 18 U.S.C. § 3583(e)(2). See also

Fed. R. Cr. P. 32.1(c). We found in United States v.

McKissic, 428 F.3d 719, 726 (7th Cir. 2005), with regard

to an improperly imposed restriction on alcohol consumption, that “[b]ecause the district court can modify Mr.

McKissic’s conditions, the lack of notice does not rise to

the level of plain error.” In Padilla, at 223, the court said

that the defendant has a remedy should the probation

officer require “an inordinate number of drug tests or

otherwise misuse his wrongly delegated authority . . . .”

That remedy is, of course, a motion to modify the conditions of supervised release. And for someone like Mr.

Tejeda, who will be in confinement far into the future
8 Nos. 06-1492 & 06-1622

(and we assume off drugs), that would be a better time

to have the issue reconsidered.

The issue regarding the improper delegation of discretion to a probation agent vividly illustrates why there is

a hurdle to be overcome before an appellate court

should notice an error in the absence of an objection. The

ease with which the error in these cases could be corrected cannot be exaggerated. Alerted to the problem,

the district judge could simply impose the conditions for

drug testing himself. Problem solved. The defendant

would not necessarily be better off but the statute

would have been complied with.

Because this decision signals a change of course, it was

circulated to the active members of the court under Rule

40(e). No judge voted to hear the case en banc.

The judgments of the district courts in both cases are

affirmed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-7-07