United States v. Mikel Stephen Carroll

Case: 13-12949 Date Filed: 11/13/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12949
Non-Argument Calendar
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D.C. Docket No. 5:04-cr-00017-RS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKEL STEPHEN CARROLL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 13, 2013)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-12949 Date Filed: 11/13/2013 Page: 2 of 4
Mikel Carroll appeals a special condition of his supervised release, imposed
upon his sentencing and revocation of a previous term of supervised release, 18
U.S.C. § 3583(e). Carroll contends the special condition of supervised release—
requiring him to undergo a mental health evaluation with a view toward sex
offenses and complete any recommended mental health or sex offender treatment
program—is an improper delegation of judicial authority in violation of Article III
of the United States Constitution.1
Normally, we review the terms of a supervised release for abuse of
discretion and review constitutional issues de novo. United States v. Nash, 438
F.3d 1302, 1304 (11th Cir. 2006). To preserve an issue for appeal, however, an
appellant “must raise an objection that is sufficient to apprise the trial court and the
opposing party of the particular grounds upon which appellate relief will later be
sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007). Because
Carroll objected to the special condition of his supervised release on statutory and
reasonableness grounds only, he did not adequately preserve the constitutional
issue for appeal.
Where an issue is not preserved below, we review for plain error. See Nash,
438 F.3d at 1304. To satisfy the plain-error standard, we must find that (1) the
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Carroll also argues the special condition was unreasonable because it “appears to
require a second evaluation at Carroll’s own expense.” Carroll cites no authority for this
assertion, and the district court did not abuse its discretion by attaching this special condition to
Carroll’s supervised release.
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district court committed error, (2) the error was plain or obvious, and (3) the error
affects substantial rights. United States v. Olano, 113 S. Ct. 1770, 1776 (1993).
An error is not plain “unless the error is clear under current law.” Id. at 1777.
“To determine if a court 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. Article III courts may not
delegate the ultimate responsibility of judicial functions to probation officers, but
courts may delegate the ministerial function of how, when, and where the
defendant must participate. Id. at 1306.
The district court ordered that Carroll “shall” be evaluated for mental health
treatment with a view towards sex offenses and that he “shall” complete “any
recommended” mental health or sex offender treatment program. Like in Nash,
although the condition states that Carroll “shall” participate in a mental health or
sex offender treatment program, this order is subject to the conditional phrase that
the program be “any recommended” one. See Nash, 438 F.3d at 1306. Unlike in
Nash, however, the effect of this conditional phrase is a matter of interpretation,
especially because it makes no specific mention of the probation officer. This
condition can be read to leave no discretion to the probation officer: Carroll shall
complete whatever mental health or sex offender treatment program is
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recommended by his mental health evaluation. Given this interpretation of the
language, it is not “plain” or “obvious” under current law that Carroll’s special
condition of supervised release improperly delegates judicial authority.
Accordingly, we affirm.
AFFIRMED.
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