United States v. Brembry, Devan M. , 191 F. App'x 445 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 2, 2006*
Decided August 2, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3167
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03-CR-733-1
DEVAN M. BREMBRY,
Defendant-Appellant. Blanche M. Manning,
Judge.
ORDER
Devan Brembry robbed a bank located inside a grocery store while toting a
BB gun that looked like a semiautomatic pistol. The government charged him with
bank robbery, see 18 U.S.C. § 2113(a), and he pleaded guilty without the benefit of a
plea agreement. He was sentenced to ten years’ imprisonment to be followed by
three years’ supervised release. As a special condition of that supervision the
district court ordered Brembry to “participate in a drug aftercare program which
may include urine testing at the direction of the probation officer.”
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3167 Page 2
On appeal Brembry faults the district court for ordering him to submit to
urine tests as a condition of his supervised release without specifying a particular
number or range of tests. He did not object to the special condition of supervised
release at sentencing, rendering our review for plain error only. See United States
v. Guy, 174 F.3d 859, 862 (7th Cir. 1999). The responsibility for determining the
number or range of drug tests to which a defendant must submit lies with the
district court alone and cannot be delegated. 18 U.S.C. § 3583(d); United States v.
Bonanno, 146 F.3d 502, 511 (7th Cir. 1998). The improper delegation can constitute
plain error, see United States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999); United
States v. Mohammad, 53 F.3d 1426, 1438-39 (7th Cir. 1995), and the government
concedes here that it does. But see United States v. Padilla, 415 F.3d 211, 224 (1st
Cir. 2005) (en banc) (holding that failure to specify number of urine tests defendant
must take as condition of supervised release does not constitute plain error). We
agree with the government’s concession. We therefore REMAND for the district
court to determine the number or range of urine tests Brembry must undergo while
on supervised release, and to amend the judgment accordingly.