mandatory drug testing provision under ‘ 4209 requires the Parole Commission , and not the court , to determine the maximum number of mandatory tests . The delegation of Article III judicial power at issue in Stephens is not implicated when a probation officer determines the number of drug tests for parolees . In addition , 28 C . F . R . ‘ 2.38 authorizes probation officers to provide such parole services as the Commission may request . Stephens therefore did not require officers in the Ninth Circuit ( or officers elsewhere conducting courtesy supervision of offenders within the jurisdiction of a Ninth Circuit district court ) to alter their practices regarding mandatory drug testing of parolees if the Parole Commission had imposed a condition authorizing a probation officer to determine the number of drug tests for a parolee under supervision .
43 476 F . 3d 471 ( 7th Cir . 2007 ).
44 Id . at 472 . In addition to his special treatment condition , Dropik was subject to a mandatory
testing condition . As the government noted in its brief and as Dropik ’ s judgment reveals , however , the district judge only required Dropik to submit to the statutory minimum of three mandatory tests , and the court delegated no authority to the probation officer to require additional testing under the mandatory condition . Thus , the only delegation issue before the Tejeda panel was delegation to probation officers in the drug treatment special conditions .
45 146 F . 3d 502 ( 7th Cir . 1998 ).
46 Tejeda was the first published case erroneously applying the requirements of the ’ 3583 ( d )
mandatory condition to drug testing pursuant to a drug treatment special condition . The Seventh Circuit had previously issued at least one unpublished opinion that also misapplied the mandatory drug testing provision to a drug treatment special condition , however . See United States v . Sam , Nos . 05-2190 & 05-2418 , 2006 WL 1586010 ( 7th Cir . 2006 ).
47 Tejeda , 476 F . 3d at 473 (“ The authority to order drug testing comes from 18 U . S . C . ’ 3583 ( d ), which sets out conditions of supervised release . . . . ”).
48 Section 5D1 . 3 ( d )( 4 ) recommends : If the court has reason to believe that the defendant is an
abuser of narcotics , other controlled substances or alcohol ‘ a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse , which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol . U . S . S . G . ‘ 5D1 . 3 ( d )( 4 ) ( emphasis added ).
49 424 F . 3d 876 ( 9th Cir . 2005 ).
50 Id . at 882 .
51 Tejeda , 476 F . 3d at 473-74 . The Ninth Circuit case cited by the Tejeda panel , United States
v . Maciel-Vasquez , 458 F . 3d 994 ( 9th Cir . 2006 ), discussed Stephens and observed that district courts may authorize probation officers to designate drug and alcohol testing if it is incidental to a treatment program , but are precluded from delegating if testing is required pursuant to a ‘ 3584 ( d ) mandatory condition . The condition in Maciel-Vasquez was deemed “ somewhat ambiguous ” because it was unclear whether the district court had authorized the officer to require testing as a part of treatment or pursuant to a mandatory testing condition . The same cannot be said for the special condition in Tejeda , which clearly required testing only as a component of treatment .
52 In Stephens , the Ninth Circuit affirmed a treatment and testing special condition that required
the offender to “ participate in a drug and alcohol abuse treatment and counseling program , including urinalysis testing , as directed by the Probation Officer .” Stephens , 424 F . 3d at 879 . The special condition allegedly endowing probation officers with too much discretion in Tejeda likewise required the offender to “ participate in a program of testing and residential or outpatient treatment for drug and alcohol abuse , as approved by the supervising probation officer , until such time as he is released from such program .” Tejeda , 476 F . 3d at 472-73 .