United States v. Jermaine Barber ( 2017 )


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  •      Case: 16-41354        Document: 00514101382          Page: 1     Date Filed: 08/03/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fif h Circuit
    No. 16-41354                                    FILED
    August 3, 2017
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                                 Clerk
    Plaintiff - Appellee,
    v.
    JERMAINE MARTEZ BARBER,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:16-CR-103-1
    Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
    Judge. *
    PER CURIAM:
    Jermaine Barber pleaded guilty to one count of possession of 100
    kilograms or more of marijuana with intent to distribute and received a below-
    guidelines sentence of twelve months and one day in prison as well as a three-
    year term of supervised release. On appeal, Barber challenges the substance-
    abuse treatment special condition of his supervised release. Because this
    special condition is ambiguous as to the scope of the district court’s delegation
    *   District Judge of the Western District of Texas, sitting by designation.
    Case: 16-41354    Document: 00514101382    Page: 2   Date Filed: 08/03/2017
    No. 16-41354
    of authority to the probation office, we VACATE the substance-abuse
    treatment special condition and REMAND to the district court for
    resentencing.
    I.
    At the sentencing hearing, the district court imposed a special condition
    of release requiring Barber to “participate in a drug and/or alcohol treatment
    program as deemed necessary and approved by the Probation Office.” Barber
    did not object.   The written judgment included the following provision
    regarding drug and alcohol treatment:
    The defendant shall participate in a program, inpatient or
    outpatient, for the treatment of drug and/or alcohol addiction,
    dependency or abuse which may include, but not be limited to
    urine, breath, saliva and skin testing to determine whether the
    defendant has reverted to the use of drugs and/or alcohol. Further,
    the defendant shall participate as instructed and as deemed
    necessary by the probation officer and shall comply with all rules
    and regulations of the treatment agency until discharged by the
    Program Director with the approval of the probation officer. The
    defendant shall further submit to such drug-detection techniques,
    in addition to those performed by the treatment agency, as directed
    by the probation officer. The defendant will incur costs associated
    with such drug/alcohol detection and treatment, based on ability
    to pay as determined by the probation officer.
    Barber appealed, challenging the special condition.
    II.
    We review a special condition for plain error where, as here, the
    defendant failed to object to the condition when it was announced at
    sentencing. United States v. Franklin, 
    838 F.3d 564
    , 566 (5th Cir. 2016).
    Accordingly, Barber must show a clear or obvious error that affected his
    substantial rights. See United States v. Prieto, 
    801 F.3d 547
    , 549–50 (5th Cir.
    2015); see also Puckett v. United States, 
    556 U.S. 129
    , 135 (2009). If Barber
    makes such a showing, we have discretion to remedy the error if it “seriously
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    affect[s] the fairness, integrity or public reputation of judicial proceedings.”
    
    Prieto, 801 F.3d at 550
    (quoting 
    Puckett, 556 U.S. at 135
    ).
    A.
    Barber argues that the district court committed clear error by imposing
    a special condition that was impermissibly ambiguous as to the scope of
    authority delegated to the probation office. Probation officers have power “to
    manage aspects of sentences and to supervise probationers and persons on
    supervised release with respect to all conditions imposed by the court.”
    
    Franklin, 838 F.3d at 567
    . However, a district court cannot delegate to a
    probation officer the “core judicial function” of imposing a sentence, “including
    the terms and conditions of supervised release.” 
    Id. at 568.
          Accordingly, we have repeatedly vacated special conditions of release
    that used the language “as deemed necessary and approved by the probation
    officer” because this language created ambiguity as to whether the district
    court had permissibly delegated authority to decide the details of a sentence’s
    implementation or had impermissibly delegated the authority to impose a
    sentence.   See, e.g., United States v. Yarbrough, No. 15-20236, 
    2017 WL 405629
    , at *1, *4 (5th Cir. Jan. 30, 2017); United States v. Alaniz, 671 F. App’x
    292, 292 (5th Cir. 2016); 
    Franklin, 838 F.3d at 566
    ; United States v. Lomas,
    643 F. App’x 319, 324 (5th Cir. 2016); United States v. Calhoun, 471 F. App’x
    322, 323 (5th Cir. 2012); United States v. Vasquez, 371 F. App’x 541, 542–43
    (5th Cir. 2010); United States v. Lopez-Muxtay, 344 F. App’x 964, 965 (5th Cir.
    2009). The special condition imposed at the sentencing hearing in this case
    uses substantially the same language that these prior cases deemed
    ambiguous, requiring Barber to undergo substance-abuse treatment “as
    deemed necessary and approved by the Probation Office.” Therefore, it is
    impermissibly ambiguous.
    3
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    Indeed, the government concedes that the special condition orally
    imposed at sentencing was impermissibly ambiguous, but argues that this
    error was cured by the written judgment, which the government says is
    unambiguous as to the scope of delegation. To the extent that the written
    judgment conflicts with the sentence orally pronounced at sentencing, the
    district court’s oral pronouncement controls. United States v. Torres-Aguilar,
    
    352 F.3d 934
    , 935 (5th Cir. 2003). Accordingly, the written judgment does not
    obviate the clear error in the orally imposed special condition of release. 1
    B.
    The error in this case affected Barber’s substantial rights because it
    affected his right to be sentenced by an Article III judge. We have held that
    “the unauthorized delegation of sentencing authority from an Article III
    judicial officer to a non-Article III official affects substantial rights . . . .”
    United States v. Albro, 
    32 F.3d 173
    , 174 n.1 (5th Cir. 1994). Thus, we have
    vacated and remanded conditions of release that were ambiguous as to the
    scope of authority delegated to a probation officer. See Alaniz, 671 F. App’x at
    293 (holding that “ambiguity regarding whether the district court intended to
    delegate authority not only to implement treatment but to decide whether
    treatment was needed” constitutes clear error that affects a defendant’s
    substantial rights); Yarbrough, 
    2017 WL 405629
    at *3 (same); see also 
    id. at *7
    (Southwick, J., concurring) (noting that, by vacating and remanding
    ambiguous delegation, majority opinion came “close” to calling improper
    1 The government argues in a 28(j) letter that there can be no ambiguity as to the
    district court’s intention to mandate substance-abuse treatment in light of the PSR. In
    support of this position, the government cites our opinion in United States v. Guerra, 
    856 F.3d 368
    , 369–70 (5th Cir. 2017). That case is distinguishable. There, the defendant’s own
    counsel directed the court’s attention to the defendant’s mental health issues at sentencing
    and the PSR contained extensive discussion of the defendant’s past mental health issues and
    issues with drugs. 
    Id. 4 Case:
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    delegation a structural error but concurring because it did not actually do so);
    Pitts, 
    2016 WL 6832953
    at *2 (vacating and remanding impermissible
    delegation without discussing what conditions the district court would have
    imposed); 
    Albro, 32 F.3d at 174
    (vacating and remanding impermissible
    delegation despite noting that the district court could revise the sentence based
    on the probation officer’s recommendations). Barber has made the requisite
    showing that the clear error in this case affected his substantial rights. 2
    C.
    Although Barber has demonstrated a clear or obvious error that affected
    his substantial rights, we retain discretion in deciding whether to remedy this
    error and will do so only if the error “seriously affect[s] the fairness, integrity
    or public reputation of judicial proceedings.”               
    Prieto, 801 F.3d at 550
    .
    “[P]reserving the judiciary’s exclusive authority to impose sentences is an area
    in which it is important for courts to be vigilant.” United States v. Morin, 
    832 F.3d 513
    , 518 (5th Cir. 2016). “Exercising our discretion to correct the error
    under these circumstances is consistent with that vigilance.” Pitts, 670 F.
    App’x at 376 (citing 
    Morin, 832 F.3d at 518
    ; 
    Prieto, 801 F.3d at 550
    ; 
    Albro, 32 F.3d at 174
    n.1) (vacating and remanding impermissible delegation on plain
    2 The government invites us to follow a First Circuit decision suggesting that a
    defendant’s substantial rights are not adversely affected by an error unless, “but for the
    alleged error, the court would likely have imposed a different and more favorable sentence”
    than the probation officer imposed. United States v. Mercado, 
    777 F.3d 532
    , 536 (1st Cir.
    2015) (holding on plain error review that defendant could not show any error affected his
    substantial rights). However, the First Circuit, also on plain error review, has vacated and
    remanded special conditions of release that delegated sentencing authority to the probation
    officer without discussing what sentence the district court would likely have imposed. See,
    e.g., United States v. Figuereo, 
    404 F.3d 536
    , 542 (1st Cir. 2005) (vacating delegation of
    authority to determine whether to order drug treatment in the event the defendant failed a
    drug test while on supervised release). In any event, we must follow our own case law, which
    has repeatedly held that the delegation of sentencing authority affects substantial rights
    without inquiring into what sentence the district court would likely have imposed. See, e.g.,
    Alaniz, 671 F. App’x at 293; Yarbrough, 
    2017 WL 405629
    , at *3; United States v. Pitts, No.
    15-50850, 
    2016 WL 6832953
    , at *2 (5th Cir. Nov. 18, 2016); 
    Albro, 32 F.3d at 174
    & n.1.
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    error review); see also Yarbrough, 
    2017 WL 405629
    at *3 (vacating and
    remanding ambiguous delegation on plain error review); Alaniz, 671 F. App’x
    at 293 (vacating and remanding ambiguous delegation on plain error review);
    United States v. Heath, 
    419 F.3d 1312
    , 1316 (11th Cir. 2005) (vacating and
    remanding impermissible delegation on plain error review); United States v.
    Pruden, 
    398 F.3d 241
    , 251 (3d Cir. 2005) (vacating and remanding
    impermissible delegation on plain error review); 
    Albro, 32 F.3d at 174
    (vacating and remanding impermissible delegation on plain error review). But
    see 
    Guerra, 856 F.3d at 369
    –70 (modifying facially ambiguous delegation and
    affirming as modified because the district court’s intention was clear in light
    of defense counsel’s representations to the court and in light of defendant’s
    extensive history of mental health issues and issues with drugs).
    The government argues that our decision in United States v. Mendoza-
    Velasquez, 
    847 F.3d 209
    , 213–14 (5th Cir. 2017), counsels against exercising
    our discretion to correct the ambiguous delegation at issue in this case. In
    Mendoza-Velasquez, we held that the defendant had not satisfied our
    “stringent” requirements for demonstrating that we should exercise our
    discretion to correct any error, even assuming that the district court did err by
    imposing a mental health treatment special condition that was not reasonably
    related to the sentencing factors in 18 U.S.C. § 3583. 
    Id. at 213.
    That holding
    is inapposite because, in the case now before us, the error involves delegation
    rather than unreasonableness. Moreover, one of the factors that weighed
    against exercising our discretion to correct any error in Mendoza-Velasquez
    was the defendant’s “extensive criminal history stretching back to when he was
    fourteen years of age,” and the defendant in this case has no prior criminal
    history. 
    Id. It is
    true, as the government notes, that our holding in Mendoza-
    Velasquez relied in part on the authority of district courts to modify special
    conditions at any time during a term of supervised release. See 
    id. at 213–14.
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    However, we have expressly held that this is not dispositive. 
    Prieto, 801 F.3d at 554
    . Moreover, the cases discussed above demonstrate that this factor has
    not deterred us from repeatedly vacating and remanding special conditions
    where the error involved delegation of sentencing authority. Thus, the exercise
    of our discretion to correct the erroneously ambiguous delegation in this case
    is consistent with our precedent.
    III.
    For the reasons stated above, we VACATE the substance-abuse
    treatment special condition of release and REMAND to the district court for
    resentencing, with the clarifying instruction we offered in 
    Franklin, 838 F.3d at 568
    (quoting United States v. Lomas, 643 F. App’x 319, 325 (5th Cir. 2016)):
    If the district court intends that the [treatment] be mandatory but
    leaves a variety of details, including the selection of a [treatment]
    provider and schedule to the probation officer, such a condition of
    probation may be imposed. If, on the other hand, the court intends
    to leave the issue of the defendant’s participation in [treatment] to
    the discretion of the probation officer, such a condition would
    constitute an impermissible delegation of judicial authority and
    should not be included.
    7
    

Document Info

Docket Number: 16-41354

Judges: Jolly, Elrod, Rodriguez

Filed Date: 8/3/2017

Precedential Status: Precedential

Modified Date: 11/5/2024