United States v. McDougal ( 2021 )

Case: 20-61073 Document: 00515974942 Page: 1 Date Filed: 08/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 11, 2021
No. 20-61073 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jonathan Hilliam McDougal,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:15-CR-26-1
Before Jones, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Jonathan McDougal challenges a condition of supervised release
imposed with his revocation sentence. Finding no error of fact or law, we
AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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I. BACKGROUND
McDougal pled guilty in 2016 to one count of distribution of a
detectable amount of cocaine base—“crack”—in violation of 18 U.S.C. § 2and 21 U.S.C. § 841(a)(1). The district court sentenced McDougal to 28
months in prison and three years of supervised release. Additionally,
McDougal was required to participate in a “program of testing and/or
treatment for alcohol or drug abuse as directed by the probation officer.”
Supervised release began on April 4, 2018.
In February 2020, McDougal’s probation officer petitioned the court
for an arrest warrant. The petition alleged that McDougal violated a
mandatory condition of his supervised release by committing a state felony.
Specifically, it asserted that between May 1, 2018 and July 1, 2018, McDougal
embezzled $7,924.91 belonging to the state of Mississippi. McDougal pled
guilty in state court to the offense in November 2019 and was sentenced to
ten years in prison and five years of supervised release. 1
At the revocation hearing, McDougal admitted committing the
offense. He explained that he used his state-issued fuel card to fuel other
people’s cars in exchange for additional money. 2 He claimed this was
necessary to support eight children and pay outstanding debts. The money
allegedly went towards food for his kids, child support, gas, and rent—
McDougal stated that after those expenditures, he often only had $30 to $50
1
He was eligible for release after serving three years imprisonment. McDougal was
subsequently released by the state on August 12, 2020 and was remanded to federal
custody.
2
To do so, McDougal had to “cut deals” where he was only getting a portion of
the value of the gas. For example, he would put $40 worth of fuel in another person’s
vehicle in exchange for $20. McDougal admitted to converting the entire $7,924.91 (it was
charged to the card) but only received $3000 to $4000 in actual cash.
2
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for each two-week period. McDougal’s counsel also noted that two of his
children lived with him and that McDougal had not failed any drug tests while
on supervised release, so “it [was] not an issue of whether or not this money
was going towards drugs.” The district court noted that McDougal’s lack of
proof for how he spent the money was “a negative,” and it was likely that he
did “something else with the money.” The court recessed the hearing to
allow the defense time to gather evidence of expenditures.
McDougal then presented two witnesses: his sister, Shama Harris,
and one of his children, Jontaveyun Jones. Harris testified that McDougal
had been living with her and paying for gas, food, and expenses for two of his
children. She also saw him give money to the children’s mother and send
money to his other children out of state. McDougal also helped pay for food
and utilities at the house. Harris asserted that she did not know of any drug
use by McDougal, had never heard of him using drugs, and that he had
stopped drinking because he “didn’t like the taste of it.” Finally, Harris
testified that McDougal had paid over $1000 in household expenses while
living there, but she didn’t know what he did with all of the embezzled
money. Jones testified that McDougal paid for food, clothes, and school
sports equipment. He further stated that McDougal had given money
directly to his mother and that he had lived with McDougal for nearly a year.
But Jones conceded that he did not know how much McDougal had paid in
child support or whether he was current on payments.
The district court then moved to sentencing. The court first noted
that the embezzlement occurred less than a month after McDougal’s release
from federal custody and that “one has to conclude that he hardly was
rehabilitated since in less than a month’s time after being committed to
supervised release . . . he committed a felony.” The court then explained
that McDougal had failed to adduce evidence as to what became of the nearly
$4000 that he received. Having received no testimony from the children’s
3
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mothers, and no testimony that he attempted to satisfy his outstanding child
support obligations, the court “heard nothing to persuade it that this
defendant spent any significant money on his children, nor that he spent any
significant money with his sister when he was staying there free with her and
her husband.” The court concluded that it had no idea what McDougal did
with the money since it found none of the testimony credible, and it was
“troubled by the short interval between this defendant’s release from
incarceration and his determination to reenter the realm of crime.” Finally,
the court observed that McDougal had been “quite deep in the drug trade”
and now “quite deep in embezzlement.” The court then sentenced
McDougal to ten months imprisonment and 26 months supervised release.
In addition, the court ordered that “based on [his] history of drug
abuse, [McDougal] must participate in an alcohol/drug abuse treatment
program and follow the rules and regulations of the program.” The court
explained that it “didn’t see very much about [McDougal’s] potential use of
drugs, but certainly [his] possession and sale of drugs is evident.” 3
Accordingly, the court ordered that McDougal be evaluated and observed—
this was to be supervised by the probation officer. But if there was no drug
problem then the probation officer was not to execute this portion of the
order. The court later reiterated that it was “ordering treatment if the
probation officer deems it necessary . . . [b]ut that decision will lie with the
probation officer.”
McDougal objected that “[t]here’s nothing before the Court to say
that he has a potential for drug use. Maybe ten years ago. There’s nothing
certainly since he’s been on supervised release for drug use. There’s been
nothing while he was on pretrial release prior to his sentence in 2016.”
3
The court recognized that McDougal had not tested positive for drugs.
4
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According to the defense, there was “no evidence here before the Court to
require such a treatment requirement, and so we’d object to the sentence as
a whole but that one as well specifically.”
The court denied the objection, stating “your protest is a frivolous
protest if he doesn’t have a problem, because I’ve already said the probation
officer does not have to impose those conditions if it does not have a
problem.” The court also added that it has to look out for public safety, and
it was not aware of what McDougal had done with the money: “The Court
doesn’t know whether he invested in some drug trade. The Court doesn’t
know whether he picked up with his prior partners and purchased some
drugs. The Court doesn’t know any of that.” The prosecution then
attempted to clarify that the court was only ordering that McDougal be
evaluated, and that the court and probation officer could take further steps
based on that. The court agreed “[b]ased on the evaluation and what the
probation officer knows based on that.” McDougal timely appealed the
sentence.
II. DISCUSSION
McDougal raises two issues on appeal. First, he challenges the district
court’s imposition of required participation in an alcohol and drug abuse
treatment program as a special condition of his supervised release. Second,
McDougal asserts that the district court impermissibly delegated the decision
of whether to require treatment to the probation officer. Neither argument
prevails.
A. Substance Abuse Treatment Condition
This court reviews a preserved challenge to a special condition of
supervised release for abuse of discretion. United States v. Caravayo,
809 F.3d 269, 272 (5th Cir. 2015). “District courts have ‘wide discretion in
imposing terms and conditions of supervised release.’” United States v.
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Dean, 940 F.3d 888, 891 (5th Cir. 2019) (quoting United States v. Paul,
274 F.3d 155, 164 (5th Cir. 2001)). The sentencing court “may impose any
condition it deems appropriate” subject to two limitations. Id. First, the
condition must reasonably relate to at least one of the four statutory factors
enumerated in 18 U.S.C. § 3553(a):
(1) the nature and characteristics of the offense and the history
and characteristics of the defendant; (2) the need for the
sentence imposed to afford adequate deterrence to criminal
conduct; (3) the need for the sentence imposed to protect the
public from further crimes of the defendant; and (4) the need
for the sentence imposed to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
United States v. Bree, 927 F.3d 856, 859–60 (5th Cir. 2019). Second, “‘the
condition must be narrowly tailored such that it does not involve a greater
deprivation of liberty than is reasonably necessary to fulfill the purposes set
forth in’ § 3553(a).” Dean, 940 F.3d at 891 (quoting United States v. Scott,
821 F.3d 562, 570 (5th Cir. 2016)).
Further, the district court must make factual findings in terms of the
§ 3553(a) factors to justify the special condition. United States v. Salazar,
743 F.3d 445, 451 (5th Cir. 2014). But “[i]n the absence of a factual finding,
a court of appeals may nevertheless affirm a special condition ‘where the
[district] court’s reasoning can be inferred after an examination of the
record.’” Caravayo, 809 F.3d at 275 (quoting Salazar, 743 F.3d at 451).
McDougal principally argues that the special condition here fails at
step one. It is not reasonably related to any of the factors because there is no
evidence that he is using drugs or that any of the embezzled funds went
toward drugs. Without this evidence, the condition does not relate to
deterrence, public protection, or medical care. Last, he claims, the district
court failed to provide factual support for the condition.
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In rebuttal, the government argues that the condition is properly
related to McDougal’s past history of alcohol and marijuana abuse, and his
prior conviction for possessing and selling drugs. The government keys in on
the district court’s concern that the embezzled money was used for drug
purchases and argues that the court was in the best position to judge
credibility.
The starting point here is determining what condition the court
actually imposed. The written judgment states that McDougal “must
participate in an alcohol/drug abuse treatment program and . . . [t]he
probation officer will supervise [] participation in the program.” At
sentencing, the court reiterated that McDougal “must participate” in a
treatment program. Yet the court further stated that it wanted McDougal
“evaluated and observed to see if [he] ha[s] a drug problem . . . . [I]f [he]
do[esn’t] have a drug problem, the probation officer will not execute this
portion of the order.” 4 The written judgment makes participation
mandatory, but the verbal judgment appears to make initial participation (the
evaluation and observation) mandatory and continued participation only
required upon a determination that McDougal has a “drug problem.” In a
sense, the probation officer will either terminate treatment or escalate the
intensity after the threshold determination.
“If the in-court pronouncement differs from the judgment that later
issues, what the judge said at sentencing controls.” United States v. Diggles,
4
To be sure, though the district court states that “the probation officer will not
execute” the treatment condition, evaluation and observation are necessary
prerequisites—meaning that the condition will be initially executed. The probation officer
will then cease to execute the treatment condition if McDougal does not have a drug
problem. That the district court used the words “evaluated and observed” makes no
difference. Evaluation and observation are as much a component of a treatment program
as any subsequent therapy.
7
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957 F.3d 551, 557 (5th Cir. 2020) (en banc). A conflict exists where “the
written judgment broadens the restrictions or requirements of supervised
release from an oral pronouncement,” United States v. Mireles, 471 F.3d 551,
558 (5th Cir. 2006), or “impos[es] a more burdensome requirement,” United
States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006). Here they conflict, 5 so
the oral pronouncement trumps and continued participation in the treatment
program is contingent on whether McDougal actually has a “drug problem.”
That condition reasonably relates to the § 3553(a) factors. First,
McDougal has a past conviction for a drug offense, and the original
Presentence Report indicated that he had previously been addicted to alcohol
and marijuana. Second, the current offense involved the embezzlement of
nearly $8000 (over $3000 of which McDougal received), and the district
court rejected McDougal’s explanation of where that money went. The
court drew a reasonable connection between the unaccounted-for funds and
the possibility that McDougal may have a drug problem. If McDougal does
have a drug problem, substance abuse treatment would reasonably constitute
appropriate medical care. By requiring a threshold determination that
McDougal actually has a drug problem before mandating continued
participation, the condition is narrowly tailored.
Here the district court made explicit, and the record supports, its
concern that McDougal may have fallen into a drug problem. That is
sufficient to trigger an inquiry. Whether McDougal is found to be clean or
5
If the two judgments do not actually conflict, and instead “the written judgment
simply clarifies an ambiguity in the oral pronouncement, [this court] look[s] to the
sentencing court’s intent to determine the sentence.” United States v. Tang, 718 F.3d 476,
487 (5th Cir. 2013) (per curiam). Intent is determined by examining the record as a whole.
United States v. Tanner, 984 F.3d 454, 456 (5th Cir. 2021). This approach leads to the same
result. The record clearly indicates that the district court intended to limit the extent of
treatment depending on whether McDougal actually had a drug problem.
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not, the condition accounts for the result of the inquiry. Accordingly, the
district court did not abuse its discretion in imposing this drug treatment
condition.
B. Impermissible Judicial Delegation
“The imposition of a sentence, including the terms and conditions of
supervised release, is a core judicial function that cannot be delegated.”
Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 400 (5th Cir. 2019) (quoting
United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016)). The district
court must have “the final say” on whether to impose a condition. United
States v. Huerta, 994 F.3d 711, 716–17 (5th Cir. 2021) (quoting United States
v. Medel-Guadalupe, 987 F.3d 424, 431 (5th Cir. 2021)). Thus, it is not
permissible for a district court to delegate the decision “whether a defendant
will participate in a treatment program,” but “a district court may properly
delegate to a probation officer decisions as to the details of a condition of
supervised release.” 6 Sealed Appellee, 937 F.3d at 400 (internal quotation
marks and citations omitted).
Consistent with this distinction, a probation officer’s authority can
permissibly extend to the “modality, intensity, and duration” of a treatment
condition. Medel-Guadalupe, 987 F.3d at 431. Here, the district court plainly
required treatment and left only the duration and intensity of that treatment
to the probation officer. If McDougal is found not to have a condition
warranting further treatment, then the probation officer is instructed not to
require treatment. Since the district court exercised its “final say” over the
6
There are additional limitations on the delegation of the details of a condition
when it involves a “significant deprivation of liberty.” United States v. Martinez, 987 F.3d
432, 434–36 (5th Cir. 2021); see also Medel-Guadalupe, 987 F.3d at 430–31. This is not
implicated here.
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initial treatment decision, delegating questions of duration and intensity was
permissible. See Huerta, 994 F.3d at 716–17.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
10