NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0825n.06 No. 11-1198 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. HOWARD KEI TH JAC KSON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: ROGERS and STR ANCH, Circuit J udg es; PEARSON, District J udg e. *

PER CURI AM. Howar d Keith J ackson appea ls, throug h counsel, a specia l condition of the sentenc e imposed by the district court which alleg edly d el egate s to the Probation Depa rtment the authority to deter

mine whether to impose drug and alcohol testing. I n a pro se supplemental brief, J ackson a lso challeng es his conviction. A jury found J acks o n gu i l t y o f being a felon in possession of a firea rm following three violent f elony or serious drug convictions in violation of 18 U.S.C. § 922(g )(1) and § 924(e)

. The district court sentenc ed him as an arme d car eer criminal to the mandatory minimum of 180 months in prison, to be followed by t h re e y ea rs o f supervised rele ase. The court imposed as a standard condition of supervised rele ase that J ackson “submit to one drug test within 15 day s of rele ase from imprisonment and at least two periodic drug tests there afte r, as deter mined by the court.” The court

The Honora

ble Be nita Y. Pearson, United States District J udg e for the Norther n District of * Ohio, sitti ng by

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ackson also imposed a specia l condition of supervised rele ase that stated as follows: “The defe ndant shall participa te in a prog ram approve d by the Probation Depa rtment for substance abuse which prog ram may include testing to deter mine if the d ef

en d an t h as reve rted to the use of drug s or alcohol. I f

nece ssary .” On appea l, J ackson arg ues that, in imposing the specia l condition of supervised rele ase, the district court improperly deleg ated its judicial authority to the United States Probation Offic e by vesting a proba tion of

fice r with the discretion to de termine whether and how often Jackson would be subject to drug testing. The g overnment contends that J ackson’ s challeng e to the specia l condition is premature and that, in any case , the district court prope rly imposed the condition. Be cause J ackson raises a purely leg al challeng e to whether the district court improperly deleg ated its authority by imposing t he special condition, his claim is ripe for revie w. See United States v. Thompson , 653 F.3d 688, 692-93 (8th Cir. 2011) (addr essing on direc t revie w a claim that

cer tain specia l conditions of supervised rele ase constituted an impermissible deleg ation of judicial authority ); United States v. Hec kman , 592 F.3d 400, 409 (3d Cir. 2010) (same)

. We limit our revie w of J ackson’ s claim to plain err or, howeve r, beca use he failed to raise it when g iven the opportunity to do so by the district court at the conclusion of the sentenc ing hear ing. See United States v. Inman , 666 F.3d 1001, 1003 (6th Cir. 2012). To establish plain err or, J ackson must show that an obvious or cle ar e rror aff

ecte d both his substantial rig hts and the fa irness, integ rity , or public re putation of his judicial procee dings. Id. at 1003-04. According to J ackson, only the court may deter mine “whe ther,” “how,” and “ho w m an y times” a sentenc ing condition may be imposed, and may deleg ate mere ly “whe re and when th e condition will be satisfied” to the P robation Department. See U nited States v. Stephe ns , 424 F.3d

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ackson 876, 880-81 (9th Cir. 2005); see also United States v. Smith , 561 F.3d 934, 942 & n.7 (9th Cir. 2005) (noting g overnme nt’s conce ssion that court’s failure to specify maxi mum number of drug tests was “an impermissible d el egation of the court’s statutory duty under 18 U.S.C. § 3583(d)” ); United States v. Melé ndez-Santana , 353 F.3d 93, 101 (1st Cir. 2003), overruled on other grounds by United States v. Padilla , 415 F.3d 211 (1st Cir. 2005) (en banc) (“Rathe r than simply vesting the probation office r with the responsibil ity for manag ing the administrative details of drug treatment, t he cour t g rante d the probation office r the authority to decide whether Melénde z would hav e to underg o trea tment afte r t esting positive for drug s. That t rea tment decision m ust be made b y the court.”). 1 The g overnme nt conce des t h at it is at least ambig uous as to whether the court deleg ated to the P robation Depa

rtment the authority to deter mine whether drug testing should be imposed, b u t contends that only an express deleg ation is impermissible. See United States v. Thompson , 653 F.3d 688, 693 (8th Cir. 2011) (“[A]n impermissible deleg ation occur s only wher e the district court g ives ‘an aff irmative indicat i o n ’ t h at i t will not reta in ‘ultimate authority over all of the conditions of supervised r elea se.’” (citation omitted)). We need not resolve whether there has been an impermissible deleg ation h er e b ec ause J ackson has failed to sa tisfy the re maining pr ong s of the plain err or standard. See United States v. Macie l-Vasquez , 458 F.3d 994, 996 (9th Cir. 2006). The g overnme nt has cited case s fro m other circ uits which have held that defe ndants with simil ar conditions could not show an e ffe ct on their substantial rig hts beca

use of the difficulty in showing that they are worse off by having a probation

Padilla expressly upheld the holding of Melé ndez-Santana that “dele g ation of the power to 1 set the maxi mum number of drug tests” constitutes err or, 415 F.3d at 220, but h eld that such deleg ation is not necessa

rily plain err or, id. at 220-23.

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ackson office r, rathe r than a judge , deter mine the maxi mum number of drug tests. United States v. Tejeda , 476 F.3d 471, 474-75 (7th Cir. 2007); Padilla , 4 1 5 F. 3 d at 221. The g overnme nt also identifies

case s holding that such sentenc ing deleg ation does not aff ect the fairne ss or integ rity of the proce eding s. Tejeda , 476 F.3d at 475; Macie l-Vasquez , 458 F.3d at 996; Padilla , 415 F.3d at 221- 21. Be cause J ackson has not attempted to challeng e or distinguish these case s in his appellate briefs, he ef fec tively conce des that any

err or wa s not plain and that he is thus not entitled to relief. I n his pro se suppl emental brief, J ackson challeng es hi s conviction on two g rounds. Fir st, J ackson asser

ts that the district court err ed “in faili n g t o i n v o ke the abstention doctrine under the g uise of re verse vertica l pr eemption.” This a rg ument appea

rs to be g rounded in the be lief that the fede ral g overnme nt should y ield to the states when it come s to enforc ing c riminal laws, or at least those perta ining to firear

m possession. However , the dual sover eig nty doctrine a llows the federa l g overnme nt to prosec ute a case reg ardle ss of whether the criminal conduct may be separ ately prosec uted by a state. United States v. Archibald , — F.3d —, No. 11-5488, 2012 WL 2816702, at *2 n.1 (6th Cir. J uly

11, 2012). Second, Jackson asser

ts that 18 U.S.C. § 924(e ) is unconstitutionally vague bec ause of

the definition of “ser ious drug offe nse” contained in § 924(e) (2)( A)(ii): “a n o ff en se under State law, involving manufa ctur i n g, distributing, or possessing with intent to manufa cture or distribute, a controlled substance

. . . for which a maxi mum term of imprisonme n t of ten y ear s or more is presc ribed by law.” Acc ording to J ackson, the phrase “pre scribed by law” is unclea r and allows for arbitra ry prosec ution beca

use some criminal offe nses on l y “prescribe ” sentenc es g rea ter than ten y ear s when cer

tain fac ts are found or enhanc ements apply

. We reje ct this arg ument. I n United States

v. Rodriquez , the Supreme Court re cog nized that apply ing this statute may , in fac t, be cha lleng ing

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ackson b u t conclude d that such difficulty does not allow courts to disreg ard “the clea r meaning of the statutory lang uag e” at issue here

. 553 U.S. 377, 388-89 (2008); see also M cNiell v. United States , 131 S. Ct. 2218, 2220-22 (2011) (explaining “how a fede ral court should deter mine the maxi mum sentenc e for a prior state drug offe nse for ACCA purposes” based on the “plain text ”of this statute). Acc ording ly , we a ffirm Jackson’s convic tion and sentenc e.

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