UNITED STATES, Appellee, v. Joel PADILLA, Defendant, Appellant, 393 F.3d 256

PER CURIAM. Following the conviction of defendant-appellant Joel Padilla for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), the district court sentenced him to imprisonment and a term of supervised release. On appeal, Padilla advances three claims, one of which has merit and, under existing circuit precedent, justifies modification of his sentence. The other two claims lack merit. We consider the three claims sequentially. Denial of Motion to Dismiss Padilla contends that the district court erred in denying his motion to dismiss on Commerce Clause grounds.

That motion was based on his reading of the decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Emerson, 270 F.3d 203 (5th Cir.2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002). We- are not free to revisit the Lopez claim because this court already has rejected it in prior cases. See, e.g., United States v. Colon Osorio, 360 F.3d 48, 53 (1st Cir. 2004). We also reject Padilla’s claim that Emerson provides a basis for dismissal on Commerce Clause grounds.

In doing so, we adopt the rationale of the court that spawned the Emerson decision. See United States v. Darrington, 351 F.3d 632, 634 (5th Cir.2003) (rejecting Emerson challenge in the context of a

section 922(g)(1) prosecution), cert. denied, - U.S. -, 124 S.Ct. 2429, 158 L.Ed.2d 994 (2004). Refusal to Give Jury Instruction Padilla claims that the district court abused its discretion when it declined to give a requested instruction addressing whether the gun he possessed— which lacked a firing pin assembly and magazine — was a “firearm” within the meaning of the statute of conviction. See 18 U.S.C. § 921(a)(3) (defining the term). We discern no abuse of discretion. The short of the matter is that the law amply justifies the instruction actually given by the lower court. See, e.g., United States v.

Brown, 117 F.3d 353, 355 (7th Cir.1997) (construing the corresponding sentencing guideline definition and collecting cases). Padilla has cited no relevant legal authority in support of a contrary position. Delegation of Sentencing Authority On appeal, Padilla asserts for the first time that the district court erred when it allowed the probation officer to determine the number of drug tests he must undergo during his supervised release term. The government confesses error; it concedes that this was an improper delegation of judicial authority. See United States v.

Meléndez-Santana, 353 F.3d 93, 103, 106 (1st Cir.2003) (construing 18 U.S.C. § 3583(d)). It nonetheless suggests that we need not correct the unpre-served error because it neither constitutes a miscarriage of justice nor seriously affects the integrity of the proceedings. This argument is foreclosed by our decision in Meléndez-Santana, in which a panel of this court corrected the same kind of unpreserved error without conducting the usual plain error review.

See id. at 106 (vacating drug testing condition and remanding for resentencing because 18 U.S.C. § 3583(d) “requires courts to determine the maximum number of drug tests to be performed”); see also Eulitt v. Me. Dep’t of Educ., 386 F.3d 344, 349 (1st Cir.2004) (explaining that in a multi-panel circuit, newly constituted panels are bound by prior panel decisions); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991) (same). The fact that there were multiple errors in Meléndez-Santana, making re-sentencing necessary in any event, is not sufficient to distinguish that decision.

In the alternative, the government invites us to limit the number of drug tests to the minimum (three) required by 18 U.S.C. § 3583(d). To this end, it cites our recent decisions in United States v. Tulloch, 380 F.3d 8, 10 & n. 1 (1st Cir.2004) (per curiam), and United States v. Lewandowski, 372 F.3d 470, 471 (1st Cir.2004) (per curiam). Those decisions are inappo-site here, and, thus, we decline the invitation. In Lewandowski, we construed a supervised release condition mandating “at least” three drug tests to require only three tests. See id.

There, however, the district court had not expressly delegated to the probation officer the power to decide whether to administer more tests. Id. We nonetheless adopted a limiting construction in order to resolve an ambiguity in the court’s order and ensure that it could not be interpreted to contain an implied delegation of such authority. Id. Tulloch is distinguishable for a different reason. There, we directed the district court to amend one defendant’s supervised release condition, which mandated only a single drug test, to conform to the statutory requirement that no fewer than three tests be performed.

See Tulloch, 380 F.3d at 10 n. 1. With regard to the other defendant, we instructed the court to conform its written judgment to its previously announced oral judgment (which set the number of drug tests at three). See id. The case at hand does not share the central characteristics of either Lewandowski or Tulloch. Of course, Padilla has not objected to the government’s suggestion that we adopt a limiting construction here, and, conceivably, that might represent a reasonable and efficient way to correct an express misdelegation of this kind.

But that judgment should be made on the ground, as it were, by the sentencing court. On this record, which indicates that Padilla regularly used marijuana for some period of time prior to his arrest for the offense of conviction, we prefer to let the sentencing court decide how to rectify the error. Accordingly, we vacate the challenged condition and remand to the district court for further proceedings.

If it so chooses, the court may amend its sentencing judgment to require three drug tests or, after holding a new hearing at which Padilla would have the right to appear with counsel, may specify some higher maximum number of drug tests. We vacate the sentence to the extent it improperly delegates the district court’s authority to determine the maximum number of drug tests required during the appellant’s supervised release term. We remand to the district court for further action consistent with this opinion. In all other respects, we affirm the conviction and sentence.