USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10820
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOBY E. BIVINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:11-cr-00019-HL-TQL-1
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2 Opinion of the Court 22-10820
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Before JORDAN, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Toby Bivins appeals his sentence imposed by the
district court following the third revocation of Bivins’s term of su-
pervised release. Bivins specifically challenges Standard Conditions
8 and 12, which the district court imposed on him as conditions of
supervised release under U.S.S.G. §§ 5D1.3(c)(8) and (12). For the
first time on appeal, Bivins argues that the district court erred in
failing to except his boyfriend from Standard Condition 8, which
restricts a sentenced individual, on supervised release, from inter-
acting and communicating with known felons or persons involved
in criminal activity. He also argues, for the first time on appeal,
that the district court erred in imposing Standard Conditions 8 and
12 in his supervised release because those conditions unconstitu-
tionally delegate judicial authority to a probation officer. Having
read the parties’ briefs and reviewed the record, we affirm Bivins’s
sentence.
I.
Generally, we review the terms of supervised release for an
abuse of discretion. United States v. Nash,
438 F.3d 1302, 1304
(11th Cir. 2006). However, when a defendant fails to object to a
condition of supervised release before the district court, we will re-
view for plain error only.
Id. To preserve for appeal a challenge to
a condition of supervised release, a defendant must “clearly state
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22-10820 Opinion of the Court 3
the grounds for an objection in the district court.” United States v.
Carpenter,
803 F.3d 1224, 1237 (11th Cir. 2015). Plain error occurs
when (1) there was an error, (2) that was plain, (3) that affected the
defendant’s substantial rights, and (4) that seriously affected the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Presendieu,
880 F.3d 1228, 1237-38 (11th Cir. 2018).
“When neither this Court nor the Supreme Court ha[s] resolved an
issue, there can be no plain error in regard to that issue.” United
States v. Vereen,
920 F.3d 1300, 1312 (11th Cir. 2019).
II.
When a district court finds that a defendant violated a con-
dition of supervised release, the district court may revoke the term
of supervised release and impose a term of imprisonment after con-
sidering the
18 U.S.C. § 3553(a) factors.
18 U.S.C. § 3583(e). A dis-
trict court may also impose a term of supervised release in addition
to a sentence of imprisonment.
18 U.S.C. § 3583(h). Further, a dis-
trict court may impose conditions of supervised release in accord-
ance with the classes of conditions specified in U.S.S.G. § 5D1.3, in-
cluding “standard” conditions set forth in U.S.S.G. § 5D1.3(c).
United States v. Ridgeway,
319 F.3d 1313, 1315 (11th Cir. 2003).
The standard conditions “are recommended for supervised re-
lease,” and “[s]everal of the conditions are expansions of the condi-
tions required by statute.” U.S.S.G. § 5D1.3(c).
As expressed in § 5D1.3(c), Standard Condition 8 provides:
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4 Opinion of the Court 22-10820
The defendant shall not communicate
or interact with someone the defendant
knows is engaged in criminal activity. If
the defendant knows someone has been
convicted of a felony, the defendant
shall not knowingly communicate or in-
teract with that person without first get-
ting the permission of the probation of-
ficer.
Id. § 5D1.3(c)(8) (emphasis added).
The record shows that Bivins did not state clearly an objec-
tion to Standard Condition 8 on the grounds he asserts on appeal.
Rather, his only objection in the district court was to the district
court’s upward variance from the applicable guideline range.
Bivins contends on appeal that the district court erred by imposing
Standard Condition 8 because it was not reasonably related to the
sentencing factors found in
18 U.S.C. § 3553(a) and because except-
ing his boyfriend, a convicted felon, from the scope of that condi-
tion would not have been inconsistent with any policy statement
of the Sentencing Commission.
Bivins cannot show that the district court’s inclusion of his
boyfriend, a convicted felon, within the scope of Standard Condi-
tion 8 is an error that is plain. He has cited no binding precedent
from this Court or the Supreme Court that holds that a district
court errs by failing to exclude an individual from Standard Condi-
tion 8 under these circumstances. Thus, Bivins’s challenge fails be-
cause he cannot show the district court plainly erred in this regard.
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22-10820 Opinion of the Court 5
Vereen,
920 F.3d at 1312. Moreover, Bivins cannot demonstrate
that the district court abused its discretion when it imposed this
condition because the record shows that the district court consid-
ered and weighed the relevant sentencing factors in imposing
Bivins’s term of supervised release and its associated conditions.
This acknowledgement by the district court will suffice, and we
discern no abuse of discretion. See United States v. Turner,
474
F.3d 1265, 1281 (11th Cir. 2007); United States v. Williams,
456 F.3d
1353, 1363 (11th Cir. 2006) (noting that our court does not substi-
tute its judgment in weighing the relevant factors under section
3553(a)). Accordingly, we affirm the district court’s imposition of
these conditions to Bivins’s supervised release term.
III.
When appropriate, we will review constitutional issues de
novo. Nash,
438 F.3d at 1304. However, when the defendant fails
to object before the district court, this Court will review for plain
error only.
Id.
As expressed in U.S.S.G. § 5D1.3(c), Standard Condition 12
provides:
If the probation officer determines that
the defendant poses a risk to another
person (including an organization), the
probation officer may require the de-
fendant to notify the person about the
risk and the defendant shall comply with
that instruction. The probation officer
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6 Opinion of the Court 22-10820
may contact the person and confirm
that the defendant has notified the per-
son about the risk.
U.S.S.G. § 5D1.3(c)(12) (emphasis added).
In determining whether a court has improperly delegated
the judicial authority of sentencing, “we have drawn a distinction
between the delegation to a probation officer of a ‘ministerial act
or support service’ and ‘the ultimate responsibility’ of imposing the
sentence.” Nash,
438 F.3d at 1304-05 (citation omitted). “Although
a probation officer is an arm of the court, and is statutorily man-
dated to perform any duty that the court may designate, Article III
courts may not delegate the ultimate responsibility of judicial func-
tions to probation officers.”
Id. at 1305 (quotation marks, altera-
tions, and citations omitted). However, “[b]ecause probation offic-
ers play a vital role in effectuating the sentences imposed by district
courts, courts may delegate duties to probation officers to support
judicial functions, as long as a judicial officer retains and exercises
ultimate responsibility.”
Id. (quotation marks and citation omit-
ted).
“We have upheld conditions of supervised release that une-
quivocally impose a requirement on the defendant, but subject the
defendant to the ‘approval’ or ‘direction’ of a probation officer.”
Id. Additionally, in Nash, we held that the district court did not
improperly delegate a judicial function to a probation officer in im-
posing a condition that Nash “notify third parties of risks that may
be occasioned by [Nash’s] criminal record or personal history or
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22-10820 Opinion of the Court 7
characteristics as directed by the probation officer.”
Id. at 1306
(quotation marks and emphasis omitted).
The record indicates that Bivins did not object to the consti-
tutionality of Standard Condition 8 or 12 before the district court.
Thus, we review Bivins’s constitutional arguments for plain error.
Nash,
438 F.3d at 1304. First, as to Standard Condition 8, there is
no binding precedent from this Court or the Supreme Court hold-
ing that Standard Condition 8 unconstitutionally delegates judicial
authority to a probation officer. Accordingly, Bivins cannot show
plain error as to Standard Condition 8. Vereen,
920 F.3d at 1312.
Second, we conclude that the district court did not err in im-
posing Standard Condition 12 because the condition did not in-
volve improper delegation of judicial authority. See Nash,
438 F.3d
at 1306. As we explained in Nash, the condition authorizes the pro-
bation officer to direct “when, where, and to whom notice must be
given,” but does not authorize the probation officer to “unilaterally
decide” whether Bivins shall be subject to the condition at all.
U.S.S.G. § 5D1.3(c)(12); Nash,
438 F.3d at 1306. Thus, the district
court did not plainly err in imposing Standard Condition 12, and
we affirm in this respect as well.
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s imposition of Bivins’s sentence.
AFFIRMED.
