In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-4024

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN E. PAUL,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07 CR 79—Barbara B. Crabb, Chief Judge.

____________

ARGUED JUNE 2, 2008—DECIDED SEPTEMBER 8, 2008

____________

Before EASTERBROOK, Chief Judge, and ROVNER and

WOOD, Circuit Judges.

ROVNER, 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 threeyear 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 condition. We conclude that the court did not abuse its discretion 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 probation 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 substance 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 threeyear 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 thereafter. 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 establishes a record of sobriety. See Administrative Office of U.S.

Courts, Probation and Pretrial Services Division, Monograph 109: “The Supervision of Federal Offenders,” at IV21 (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 conditions 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 understand 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 unreasonable 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 precludes 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 characterize 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 government 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 submit to a drug test within 15 days of release on super-
No. 07-4024 7

Supervised release functions similarly to probation, although 1

the two are recognized and treated as distinct means of supervising 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).

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). Section 1

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
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 reserved 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 problem. 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 supervised 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 reduction 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 otherwise seem on its face. See Guy, 174 F.3d at 862.

III.

The district court did not abuse its discretion in requiring Paul to undergo drug testing as a condition of his

supervised release. We therefore AFFIRM Paul’s sentence.

9-8-08