part , dissenting in part ); United States v . Melendez- Santana , 353 F . 3d 93 , 105-06 ( 1st Cir . 2003 ) ( recognizing that drug testing was authorized under ‘ 3603 , but holding that it had been superseded by the mandatory drug testing provisions implemented by the VCCA ), partially overruled on other grounds by United States v . Padilla , 415 F . 3d 211 ( 1st Cir . 2005 ) ( en banc ) ( unlawful delegation of judicial discretion to determine the maximum number of drug tests to a probation officer is not subject to plain error review ); United States v . Duff , 831 F . 2d 176 , 178- 79 ( 9th Cir . 1987 ) ( holding that a probation officer has the power to order a defendant to submit to drug testing under 18 U . S . C . ’ 3655 ( the predecessor to ’ 3603 ) even when the court had not explicitly imposed such a condition ); United States v . Smith , 45 F . Supp . 2d 914 , 919 ( M . D . Ala . 1999 ) ( holding that a probation officer ’ s authority under ’ 3603 , which took effect in 1987 , was identical to that described in its predecessor , ’ 3655 ).
3 Pub . L . No . 98-473 , 98 Stat . 1987 ( 1984 ) ( currently codified at 18 U . S . C . ’ 3563 ( b )( 9 ) and 18 U . S . C . ’ 3583 ( d )).
4 18 U . S . C . ‘ 3603 ( 2 ), ( 3 ) & ( 7 ).
5 831 F . 2d 176 ( 9th Cir . 1987 ).
6 Id . at 178-79 .
7 Id . at 179 ( emphasis added ).
8 See United States v . Morey , 120 F . 3d 142 , 143 ( 8th Cir . 1997 ) ( probation officer authorized to
require drug testing in furtherance of a special condition requiring participation “ as instructed by the probation office ” in drug treatment ; “[ g ] iving the probation officer authority to require additional drug treatment [ and testing ] . . . is an appropriate discretionary condition that goes beyond the drug testing mandated by ’ 3583 ( d )); United States v . Schoenrock , 868 F . 2d 289 , 291 ( 8th Cir . 1989 ) ( same ); United States v . Williams , 787 F . 2d 1182 , 1185 ( 7th Cir . 1985 ) ( per curiam ) ( requirement to submit to random drug testing was narrowly tailored to prevent future drug use ); United States v . Consuelo- Gonzalez , 521 F . 2d 259 , 265-66 ( 9th Cir . 1975 ) (“ The only limitation [ imposed on a sentencing judge ’ s power to impose conditions ] is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public .”). See also 18 U . S . C . ‘ 3583 ( d ) ( in addition to specified discretionary conditions , a court may impose “ any other condition it considers to be appropriate ”).
9 Two years after Congress created the discretionary drug treatment conditions , Section
1861 ( b )( 1 ) of the Anti-Drug Abuse Act of 1986 authorized the Director of the Administrative Office of the United States Courts to contract and pay for testing and treatment . Pub . L . No . 99- 570 , 100 Stat . 3207 ( 1986 ).
10 424 F . 3d 876 ( 9th Cir . 2005 ).
11 Id . at 882 .
12 Id . at 883 ( quoting United States v . Fellows 157 F . 3d 1197 , 1204 ( 9th Cir . 1998 )).
13 See United States v . Heath , 419 F . 3d 1312 , 1315 ( 11th Cir . 2005 ) ( delegating the ultimate
decision of whether an offender must participate in mental health treatment program , in contrast to permissible delegation of administrative details regarding the type of program , was an unconstitutional delegation of sentencing authority ); United States v . Pruden , 398 F . 3d 241 , 251 ( 3d Cir . 2005 ) ( condition of supervised release was an unconstitutional delegation of authority because it allowed probation officer to determine need for mental health treatment ); United States v . Melendez-Santana , 353 F . 3d 93 , 101 ( 1st Cir . 2003 ) (“ Rather than simply vesting the probation officer with the responsibility for managing the administrative details of drug treatment , the court granted the probation officer the authority to decide whether Melendez would have to undergo treatment after testing positive for drugs . That treatment decision must be