United States v. Paulino

• Court: Court of Appeals for the First Circuit
• Decided: December 24, 2003
• Docket: 02-2591
• Status: Published

Opinion

Not for publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 02-2591

UNITED STATES OF AMERICA,

Appellee,

v.

DELCIO ANTONIO PAULINO,

Defendant, Appellant.

APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges, and Schwarzer,* Senior District Judge.

Maria Soledad Ramirez Becerra for appellant. H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and Sonia I. Torres-Pabón, Assistant United States Attorneys, for Appellee.

December 24, 2003

*Of the Northern District of California, sitting by designation. PER CURIAM. Paulino argues that the district court's

imposition of a condition of supervised release requiring him to

"submit to one drug test within 15 days of release from

imprisonment and thereafter as required by the US Probation

Officer" constitutes an impermissible delegation of sentencing

authority. Paulino is correct. In United States v. Meléndez-

Santana, No. 01-2386 & No. 01-2397, we recently vacated a nearly

identical condition on delegation grounds, while noting that it

would be permissible for the court to establish the range of drug

tests to be performed, with probation officers exercising

discretion on the exact number of drug tests to be performed within

that range. We must VACATE the drug testing condition in the

written sentencing order and REMAND to the district court for

reconsideration of the drug testing requirement. That

reconsideration must be done in a manner consistent with the

Defendant's right to be present at sentencing.

SO ORDERED.

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