Appeal from the United States District Court for the Southern District of Illinois. No. 4:00-cr-40101-JPG-6--J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
ARGUED SEPTEMBER 28, 2011
Before BAUER, WOOD and TINDER, Circuit Judges.
On June 11, 2001, Tyree Neal was sentenced to 137 months' imprisonment, fined $1,250, and placed on supervised release for 3 years for con- spiracy to possess crack cocaine with the intent to distrib- ute. His sentence included certain conditions of super- vised release: "The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and two periodic drug tests there- after, as directed by the probation officer." Another related provision stated, "Defendant shall participate as directed and approved by the probation officer for treatment of narcotic addition [sic], drug dependence, or alcohol dependence, which includes urinalysis or other drug detection measures and which may require residence and/or participation in a residential treat- ment facility."
After serving his sentence, Neal was placed on super- vised release on December 7, 2010. On January 4, 2011, the United States Probation Office ("USPO") filed a peti- tion with the district court, requesting that the condi- tions of Neal's supervision be modified to add a condi- tion for mental health treatment. The petition did not mention any modification of Neal's drug testing condi- tion. As a basis for the USPO's modification request, the USPO cited an incident involving Neal and his daughter, who filed a police report with the Marion, Illinois Police Department. According to that police report, Neal punched his daughter in the eye after an argument ensued over cleaning up a Cheerios mess on the floor. A probation officer interviewed Neal regarding the in- cident. According to Neal, he was acting in self-defense as a result of his daughter biting his finger while he was pointing it in her face.
On February 11, 2011, the district court held a hearing on the petition to modify Neal's supervised release. After the hearing, the district court modified the condition of Neal's supervised release to require him to participate in a program of mental health treatment. Neal does not object to this modification.
The district court also modified Neal's drug testing condition to read: "The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as deter- mined by the court, not to exceed 52 tests in one year." This modification is the subject of Neal's appeal.
At the modification hearing, the Assistant U.S. Attorney indicated on the record the reason for modifying Neal's drug test condition:
AUSA: And Your Honor, just for the record in case they appeal, there is evidence in the presentence report indicating that the defendant has a drug abuse issue.
THE COURT: Oh, absolutely. Yeah, I would assume the Court of Appeals would--
AUSA: I'm sure they'll have the PSR.
THE COURT: --have the PSR, that he's smoked mari-
juana on a daily basis prior to quitting six years ago and he ...