United States of America v. Clifton Flowers

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2273
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLIFTON FLOWERS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 04-CR-700-1
James B. Zagel,
Judge.
O R D E R
Clifton Flowers pleaded guilty to being in the United States without
permission after he was removed following conviction for an aggravated felony. See
8 U.S.C. § 1326(a). He was sentenced to 84 months’ imprisonment and three years’
supervised release. Flowers now appeals his sentence, arguing only that the district
court erred when it ordered him to submit to urine tests as a condition of his
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2273 Page 2
supervised release without specifying a maximum number of tests. Flowers correctly
recognizes that the court, not the probation officer, must determine the required
number of tests. 18 U.S.C. § 3583(d); United States v. Bonanno, 146 F.3d 502, 511
(7th Cir. 1998). However Flowers never objected to the drug-testing condition in the
district court, so our review is for plain error. Fed. R. Crim. P. 52(b); United States v.
Guy, 174 F.3d 859, 861 (7th Cir. 1999). The government concedes that delegation of
judicial authority to a probation officer may constitute plain error, see United States
v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999), and joins Flowers in urging that this
case be remanded. But because one component of plain error is a manifestly unjust
outcome, see United States v. Olano, 507 U.S. 725, 732 (1993), Flowers cannot
establish that the error here was plain. Flowers will be removed from the United
States by the Department of Homeland Security when he completes his term of
imprisonment, thus effectively ending his supervision and its required drug testing.
Therefore no injustice has occurred.
AFFIRMED.

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