GOULD, Circuit Judge.
Mario Maciel-Vasquez ("Maciel") appeals his sentence, which was imposed after his plea of guilty to one count of violation of 8 U.S.C. § 1326. Maciel contends that his sentence is unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that 8 U.S.C. § 1326 is unconstitutional, and that the district court committed plain error when it imposed several conditions of supervised release.
First, we consider the alleged Booker error.
We reject Maciel's contention that the sentence was unreasonable. The district court did not give greater weight to the Guidelines calculation than it did to the other § 3553(a) factors, and so Maciel's argument resting upon Zavala fails. Further, as for the argument that the district court did not explain why it selected a 36 month sentence rather than some other term, Maciel has not presented any precedent supporting this argument, and neither Booker nor our circuit precedent impose any requirement that the district court state why it chose a particular sentence rather than other potential sentences.
Second, Maciel argues that 8 U.S.C. § 1326(b)(2) is unconstitutional. That argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Maciel argues that recent Supreme Court cases have undermined Almendarez-Torres. As we explained in United States v. Weiland, 420 F.3d 1062 (2005), "[a]lthough recent Supreme Court jurisprudence has perhaps called into question the continuing viability of Almendarez-Torres, we are bound to follow a controlling Supreme Court precedent
Third, we evaluate the challenged conditions of supervised release. Maciel advocates that it was plain error for the district court to impose a condition of supervised release requiring him to "participate in outpatient substance abuse treatment and submit to drug and alcohol testing as instructed by the probation officer," in light of United States v. Stephens, 424 F.3d 876 (9th Cir.2005), reh'g en banc denied 439 F.3d 1083 (9th Cir. 2006).
Maciel also challenges a condition of supervised release requiring him to "abstain from using illicit drugs, alcohol, and abusing prescription medications during the period of supervision." Maciel argues that this was plain error because he "has never been convicted of an alcohol-related crime" and that "there is nothing to suggest that alcohol has ever caused problems in his life." However, and to the contrary, in 1992 Maciel pleaded guilty to driving under the influence of alcohol, in violation of California Vehicle Code § 23152(a). The United States argues that this prior conviction, along with a misdemeanor arrest for possession of an open bottle of alcohol and with Maciel's history of drug abuse, justifies the special condition requiring Maciel to abstain from alcohol. We agree. The district court did not err, let alone plainly err, in imposing this condition of supervised release. See United States v. Carter, 159 F.3d 397, 401 (9th Cir.1998).
Maciel further argues that the condition of supervised release requiring him to report to the probation office within 72 hours of arriving in the United States violates his
Finally, the judgment of conviction here refers to both subsections 1326(a) and 1326(b)(2) of Title 8 U.S.C. When the judgment refers to both subsections 1326(a) and 1326(b)(2), "the proper procedure under these circumstances is to direct the district court to enter a corrected judgment striking the reference to § 1326(b)(2) so that the judgment will unambiguously reflect that the defendant was convicted of only one punishable offense pursuant to § 1326(a)." United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also Almendarez-Torres, 523 U.S. at 226, 118 S.Ct. 1219 (holding that § 1326(b) is a penalty provision and does not constitute a separate crime). We remand to the district court for the limited purpose of striking the reference to § 1326(b)(2) in the judgment. See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000).
THOMAS, Circuit Judge, concurring in part and dissenting in part.
I respectfully disagree with the majority that the district court's decision to impose a condition of supervised release authorizing the probation officer to require unlimited drug and alcohol testing outside of treatment did not constitute plain error that seriously affect the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 734-45, 113 S.Ct. 1770, 1777-1784, 123 L.Ed.2d 508 (1993).
It is "indisputable" that "the authority to define and fix the punishment for crime is legislative." Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). There are no federal common law crimes. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Legislative action defines crimes and criminal procedure; therefore, a court has no power to impose a sentence in excess of statutory authority. United States v. Doe, 53 F.3d 1081, 1083-84 (9th Cir.1995). It is Congress that "has the power to define criminal punishments without giving the courts any sentencing discretion." Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). "Harmless error cannot give the district court authority it does not possess." United States v. Olson, 716 F.2d 850, 853 (11th Cir.1983).
In United States v. Stephens, 424 F.3d 876 (9th Cir.2005), we held that the district court lacked the statutory authority to delegate the number of drug and alcohol tests administered to a person subject to supervised release 18 U.S.C. § 3583(d), stating that "the court, not the probation officer, [must] set the maximum number of non-treatment-program drug tests to which a defendant may be subjected." Id. at 882.
As noted by the Third and Eleventh Circuits, the delegation of a sentencing decision from an Article III judge to another entity is plain error because "imposing a sentence not authorized by law seriously affects the fairness, integrity, and reputation of the proceedings." United States v. Pruden, 398 F.3d 241, 251 (3d Cir.2005) (quoting United States v. Evans, 155 F.3d 245, 252 (3d Cir.1998)); see also United States v. Nash, 438 F.3d 1302, 1304 (11th Cir.2006). The Fifth, Seventh and Tenth Circuits have similarly held that such delegation constitutes plain error. United States v. Overholt, 307 F.3d 1231, 1255-56 (10th Cir.2002) (delegation of restitution payment schedule); United States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999) (same); United States v. Albro, 32 F.3d 173, 174 (5th Cir.1994) (same); but
In an individual context, I can understand why one might reach the conclusion that a particular sentence does not appear to affect the fairness, integrity, and reputation of the proceedings. However, in my opinion, there is a broader principle at stake when an extra-statutory punishment is imposed. In my view, imposing a sentence in violation of statutory authority, particularly one involving improper delegation of judicial authority, is the type of error that necessarily and inherently must affect the fairness, integrity, and reputation of the proceedings, regardless of the individual context. Therefore, I must respectfully dissent.