USA v. Brembry, Devan (7th Cir. 2006)

Federal Circuits, 7th Cir. (August 02, 2006)

Docket number: 05-3167

Not Published
Permanent Link: http://vlex.com/vid/usa-v-brembry-devan-22141232
Id. vLex: VLEX-22141232

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U.S. Court of Appeals for the 7th Cir. - United States of America, Plaintiff-Appellee, v. Mohammad S. Mohammad, Also Known as Sean Saleh, and Asad Saleh, Defendants-Appellants., 53 F.3d 1426 (7th Cir. 1995)

U.S. Court of Appeals for the 7th Cir. - United States of America, Plaintiff-Appellee, v. Frank J. Bonanno and Lawrence J. Goldstein, Defendants-Appellants., 146 F.3d 502 (7th Cir. 1998)

U.S. Court of Appeals for the 7th Cir. - United States of America, Plaintiff-Appellee, v. Marcia D. Guy, Defendant-Appellant., 174 F.3d 859 (7th Cir. 1999)

U.S. Court of Appeals for the 7th Cir. - United States of America, Plaintiff-Appellee, v. Leandro Pandiello, Defendant-Appellant., 184 F.3d 682 (7th Cir. 1999)

U.S. Court of Appeals for the 1st Cir. - United States of America, Appellee, v. Joel Padilla, Defendant, Appellant., 415 F.3d 211 (1st Cir. 2005)

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Text:

UNPUBLISHED ORDER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

Court for the Northern District of

Plaintiff-Appellee,

Illinois, Eastern Division

v. No. 03-CR-733-1

DEVAN M. BREMBRY,

Blanche M. Manning,

Defendant-Appellant.

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 18U.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).

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. 18U.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.