United States v. Miller

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL EUGENE MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:98-cr-00004-jpj-1)
Submitted: July 9, 2009 Decided: August 28, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Steven
Randall Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Miller appeals the district court’s
judgment revoking his supervised release and sentencing him to
eight months’ imprisonment followed by a thirteen-month term of
supervised release. On appeal, Miller does not contest the
district court’s decision to revoke his supervised release;
rather, he challenges the special conditions imposed on the term
of supervised release, arguing the court improperly delegated
its authority to the probation officer and that the written
judgment is inconsistent with the district court’s oral
pronouncement. We address each argument in turn.
The written judgment, in pertinent part, provided for
the following special conditions:
While on supervised release, the defendant:
(3) Must participate in a program of testing and
treatment for substance abuse as directed by the
probation officer, until such time as the defendant is
released from the program by the officer;
(4) Must participate in a program of testing of
mental health treatment as directed by the probation
officer, until such time as the defendant is released
from the program by the officer;
(5) Must allow the probation officer open
communication with mental health and medical
professionals to obtain information on defendant’s
condition.
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This court generally reviews special conditions of
supervised release for an abuse of discretion. United States v.
Dotson, 324 F.3d 256, 259 (4th Cir. 2003). To the extent the
contested special condition was imposed by the court during its
oral pronouncement at sentencing, because Miller did not object
to the imposition of the special condition at that time, this
court reviews for plain error. United States v. Rodriguez-
Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006). To meet the plain
error standard: (1) there must be an error; (2) the error must
be plain; and (3) the error must affect substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). If the
three elements of the plain error standard are met, this court
may exercise its discretion to notice the error only if the
error seriously affects “the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 736 (citation
omitted).
Miller first argues the district court improperly
delegated a core judicial function to the probation officer in
imposing special conditions #3 and #4. Probation officers serve
under the discretion of the district court and are authorized to
manage aspects of sentences and to supervise probationers and
persons on supervised release with respect to all conditions
imposed by the court. United States v. Johnson, 48 F.3d 806,
808 (4th Cir. 1995). It is well established, however, that a
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court may not delegate a judicial function to a probation
officer, as such delegation would violate Article III of the
United States Constitution. See id. at 808-09. Determination
of whether a court has improperly delegated the judicial
authority of sentencing is based on distinguishing between the
delegation to a probation officer of “a ministerial act or
support service” and the “ultimate responsibility” of imposing
sentence. See United States v. Bernardine, 237 F.3d 1279, 1283
(11th Cir. 2001).
Specifically, Miller argues that special condition #4,
that he “participate in a program of testing of mental health
treatment as directed by the probation officer, until such time
as the defendant is released from the program by the officer,”
improperly delegated to the probation officer decisions
regarding the nature, quantity, and termination for mental
health testing and treatment. Similarly, he argues that special
condition #3 improperly delegates to the probation officer
decisions regarding the nature, quantity, and termination of
substance abuse treatment. We first consider whether the
district court improperly delegated to the probation officer
decisions regarding Miller’s substance abuse and mental health
treatment.
Requiring a defendant to participate in a drug or
mental health treatment program as a condition of supervised
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release is indisputably a judicial function. Delegating to the
probation officer the authority to decide whether a defendant
will participate in a treatment program is a violation of
Article III. See United States v. Peterson, 248 F.3d 79, 85 (2d
Cir. 2001) (“If [the defendant] is required to participate in a
mental health intervention only if directed to do so by his
probation officer, then this special condition constitutes an
impermissible delegation of judicial authority to the probation
officer.”); see also United States v. Pruden, 398 F.3d 241, 251
(3d Cir. 2005) (expressing agreement with Peterson); United
States v. Allen, 312 F.3d 512, 515-16 (1st Cir. 2002) (same);
United States v. Sines, 303 F.3d 793, 799 (7th Cir. 2002) (“[A]
district court . . . must itself impose the actual condition
requiring participation in a sex offender treatment program.”);
United States v. Kent, 209 F.3d 1073, 1079 (8th Cir. 2000)
(finding “that the lower court improperly delegated a judicial
function to [the defendant’s] probation officer when it allowed
the officer to determine whether [the defendant] would undergo
counseling”).
Courts, however, are also generally agreed that “where
the court makes the determination of whether a defendant must
abide by a condition, and how (or, when the condition involves a
specific act such as drug testing, how many times) a defendant
will be subjected to the condition, it is permissible to
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delegate to the probation officer the details of where and when
the condition will be satisfied.” United States v. Stephens,
424 F.3d 876, 880 (9th Cir. 2005). Hence, conditions of
supervised release that unequivocally impose a requirement on
the defendant, but subject the defendant to the “approval” or
“direction” of a probation officer are permissible. See United
States v. Kerr, 472 F.3d 517, 523-24 (8th Cir. 2006) (finding no
impermissible delegation to probation officer where the district
court made no indication it was relinquishing final authority
over defendant’s treatment); United States v. Zinn, 321 F.3d
1084, 1092 (11th Cir. 2003) (finding no plain error in imposing
condition that required defendant to participate as directed in
a program of mental health treatment approved by the probation
officer); see also U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(5) (recommending, when district court believes
defendant is in need of psychological or psychiatric treatment,
a special condition requiring the defendant participate in a
mental health program approved by the Probation Office); United
States v. Nash, 438 F.3d 1302, 1306 (11th Cir. 2006) (finding
improper delegation where court imposed condition of supervised
release that stated, “as deemed necessary by the Probation
Officer, the defendant shall participate in mental health
counseling”)(emphasis omitted)(internal citation omitted);
United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005)
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(finding plain error in imposition of condition that “defendant
shall participate if and as directed by the probation office in
such mental health programs as recommended by a psychiatrist or
psychologist”).
In this case, the special conditions at issue state in
pertinent part that Miller must participate in a program of
substance abuse and mental health treatment as directed by the
probation officer. It is clear to us that the district court
made the determination that Miller must participate in substance
abuse and mental health treatment programs. We find the
“directed by” language imposed upon the probation officer
nothing more than an assignment of ministerial duties.
Similarly, to the extent Miller challenges the unspecified
nature of the treatment ordered and the subsequent language in
the condition that states that Miller must receive treatment
until “released from the program by the officer,” this language
is consistent with permissible delegation to the probation
officer of the ministerial duty of ensuring the defendant’s
successful completion of a treatment program and subjecting the
defendant to the administrative supervision of the probation
officer. See United States v. Rearden, 349 F.3d 608, 619 (9th
Cir. 2003) (finding delegating authority to probation officer to
select type and extent of treatment for sex offender was not
improper); Peterson, 248 F.3d at 85 (finding no impermissible
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delegation where the district court intended nothing more than
to delegate to the probation officer the details of the therapy,
including selection of provider and schedule of treatment). We
therefore find the district court did not commit plain error in
imposing the special conditions requiring Miller to undergo
substance abuse and mental health treatment programs as directed
by the probation officer.
Miller also argues on appeal that the district court’s
written judgment was not consistent with its oral pronouncement
with respect to the special conditions of supervised release.
Specifically, Miller argues that, unlike the oral judgment, the
written judgment (1) imposes the requirement that Miller allow
the probation officer access to “open information” from Miller’s
mental health providers (special condition #5); (2) imposes a
vague “testing” condition in addition to mental health treatment
(special condition #4); and (3) includes the language “as
directed by the probation officer . . . until released from the
program by the officer” (special condition #3).
Under Fed. R. Crim. P. 36, “[a]fter giving any notice
it considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight
or omission.” A district court’s unambiguous oral pronouncement
at sentencing is not negated by a subsequent written judgment
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that does not reflect the oral sentence. See Rakes v. United
States, 309 F.2d 686, 687-88 (4th Cir. 1962) (addressing
correction under Rule 35). A court “should carry out the true
intention of the sentencing judge as this may be gathered from
what he said at the time of sentencing.” United States v.
Morse, 344 F.2d 27, 30 (4th Cir. 1965). It is normally the rule
that, where a conflict exists between an orally pronounced
sentence and the written judgment, the oral sentence will
control. United States v. Osborne, 345 F.3d 281, 283 n.1 (4th
Cir. 2003). The remedy is to vacate the judgment and remand to
the district court for the purpose of correcting the written
judgment to conform to the oral sentence. Morse, 344 F.2d at30-31 & n.1; Rakes, 309 F.2d at 687-88.
At the conclusion of the hearing, the district court
ordered that Miller “participate in a program of testing and
treatment for substance abuse, and a program of mental health
treatment as directed by the probation officer until he is
released from the program by the officer.” The written
judgment, however, specifically requires as a special condition
of supervised release that Miller participate “in a program of
testing of mental health treatment as directed by the probation
officer.” (emphasis added). At face value, the written judgment
potentially allows the probation officer to subject Miller to
undesignated mental health testing. See United States v. White,
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244 F.3d 1199, 1207 (10th Cir. 2001) (remanding to district
court where special condition in written judgment, unlike oral
pronouncement, subjected defendant to potential physiological
testing as approved by the probation office); see also United
States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) (requiring
district court to direct the specific number of drug tests to
which the defendants would be subject while on supervised
release). The Government appears to argue, by adding a “[sic]”
notation after the words “of testing”, that the error was
clerical in the written judgment. In any event, there is no
factual basis in the transcript from which one can deduce that
the district court intended to allow the probation officer to
subject the defendant to undesignated mental health testing. We
therefore vacate the judgment and remand the case to the
district court for the district court to correct this condition
of supervised release to conform to the oral pronouncement.
As to the remaining two conditions challenged by
Miller, we find no relief is warranted. With respect to the
language in special condition #3, i.e., “as directed by the
probation officer,” as discussed above, such language does not
constitute an improper delegation of judicial authority to the
probation officer. Furthermore, the language is entirely
consistent with the district court’s oral pronouncement as the
written judgment reflects that the court intended the probation
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officer direct both Miller’s participation in testing and
treatment for substance abuse and a program of mental health
treatment. Although Miller correctly points out that the
condition that he allow his probation officer to have open
communication with mental health and medical professionals to
obtain information on Miller’s condition was not specifically
stated at sentencing, such information is implicitly necessary
for the probation officer to evaluate Miller’s progress and
therefore the written judgment is “simply a more specific
rendering of the pronouncement at the hearing.” United States
v. Sines, 303 F.3d 793, 799 (7th Cir. 2002).
Accordingly, we vacate and remand Miller’s sentence
for the district court to correct its written judgment to
conform to its oral pronouncement with regard to mental health
testing, leaving the remaining conditions undisturbed. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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