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United States v. Paul

September 8, 2008

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.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED JUNE 2, 2008

Before EASTERBROOK, Chief Judge, and ROVNER and WOOD, Circuit Judges.

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 three-year 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, 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 of forty-six months (in the middle of the range advised by the Sentencing Guidelines), to be followed by a three-year 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, Mono-graph 109: "The Supervision of Federal Offenders," at IV-21 (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 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 ...


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