30 Id .
31 The Smith court stated : The amendment uses the phrase “ at least ” to describe the number of
tests the court must impose . It does not state that three drug tests should be the maximum unless otherwise specified by the court . Clearly then , the purpose of the amendment is to set a minimum number of drug tests that a court must impose , not a maximum . Smith , 45 F . Supp . 2d at 918 .
32 Melendez Santana , 353 F . 3d at 103-04 .
33 Id . at 105 . The First Circuit overturned similar conditions imposed upon defendants convicted
of illegal reentry in United States v . Tulloch , 380 F . 3d 8 , 10-11 ( 1st Cir . 2004 ) (“ the sentencing court essentially ‘ vest [ ed ] the probation officer with the discretion to order an unlimited number of tests ,’ which it could not do ”) ( quoting Melendez-Santana , 353 F . 3d at 103 ).
34 Id . ( quoting Natural Resources Defense Council , Inc . v . EPA , 824 F . 2d 1258 , 1278 ( 1st Cir . 1987 )).
35 Watt v . Alaska , 451 U . S . 259 , 266-67 ( 1981 ). In Watt , the Supreme Court observed the strong
presumption against the sort of “ repeal by implication ” that the First Circuit found in Melendez Santana : [ W ] e decline to read . . . statutes as being in irreconcilable conflict without seeking to ascertain the actual intent of Congress . Our examination of the legislative history is guided by another maxim : “ ‘ repeals by implication are not favored . ’ ” … “ The intention of the legislature to repeal must be ‘ clear and manifest . ’ ” … We must read the statutes to give effect to each if we can do so while preserving their sense and purpose . Id . ( citations omitted ).
36 Melendez Santana , 353 F . 3d at 105 .
37 424 F . 3d 876 ( 9th Cir . 2005 ).
38 The issue was also implicated by the Bonanno holding , but the Seventh Circuit did not have occasion to address it in its opinion .
39 Id . at 886 ( Clifton , C . J . dissenting ).
40 Id .
41 The majority attempted to forestall any attempt to reconcile its holding with Duff by
characterizing Duff as irrelevant to the drug-testing authority at issue in Stephens : The dissent claims our resolution ignores the binding precedent of Duff , that a probation officer has the authority to require drug testing even where never ordered by the district court . However , Duff is easily distinguished . The case considered the question of whether the probation officer had the power under 18 U . S . C . ‘ 3655 ( 1982 & Supp . III 1985 ), repealed by Pub . L . No . 98-473 ( now codified at 18 U . S . C . ‘ 3603 ), to order Duff to submit to nontreatment drug testing . Here , we construe an entirely different statute , ‘ 3583 ( d ), which specifically sets forth the obligation of the district judge to determine the number of drug tests . Id . at 884 n . 4 .
42 While Stephens addressed only the ’ 3583 ( d ) mandatory testing condition , section 204143 of
the VCCA imposed identical mandatory testing provisions for probationers in 18 U . S . C . ’ 3563 ( a )( 5 ) ( as a condition of probation ) and for parolees in 18 U . S . C . ‘ 4209 ( as a condition of parole ) ( repealed ). Under ’ 3563 ( a )( 5 ), the court must determine the maximum number of drug tests for probationers . Section 4209 required the Parole Commission to do the same when imposing parole conditions . Because ’ 3563 ( a ) ( 5 ), like ’ 3583 ( d ), requires that the district court determine the maximum number of mandatory drug tests , the Office of General Counsel and the Office of Probation and Pretrial Services advised that Stephens applies equally to drug testing of probationers . The same observation applies in the First and Seventh Circuits . By contrast , the