                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2005

USA v. Pruden
Precedential or Non-Precedential: Precedential

Docket No. 04-1863




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                                              PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-1863




             UNITED STATES OF AMERICA

                              v.

              CALVIN EDWARD PRUDEN,

                               Appellant




       On Appeal from the United States District Court
                  for the District of Delaware
                     (D.C. No. 02-CR-142)
        District Judge: Honorable Joseph J. Farnan Jr.




               Argued: November 18, 2004
    Before: ROTH, SMITH, and BECKER, Circuit Judges.

                 (Filed: February 23, 2005)

COLM CONNOLLY
United States Attorney
APRIL M. BYRD (ARGUED)
Assistant United States Attorney
Nemours Building, Suite 700
1007 Orange Street
P.O. Box 2046
Wilmington, Delaware 19899-2046
       Attorneys for Appellee
ELENI KOUSOULIS (ARGUED)
Assistant Federal Public Defender
704 King Street, Suite 110
Wilmington, Delaware 19801
       Attorney for Appellant

                               _____

                     OPINION OF THE COURT


BECKER, Circuit Judge.

        Calvin Pruden appeals his conviction and sentence for
violations of 18 U.S.C. § 922. Pruden argues that a critical
statement he made to law enforcement agents was obtained in
violation of his Miranda rights, because it was given the day after
he had been read those rights. He also argues that the District Court
erred in requiring, as a condition of his supervised release, that he
obtain mental health counseling at the discretion of his probation
officer.
        We find that Pruden effectively waived his Miranda rights.
The Miranda inquiry here requires us to decide not only whether
Pruden knew and understood his rights when they were first read
to him, but also whether any intervening event cast any doubt on
his ability to consider, fully and intelligently, the effect of
exercising or waiving those rights. Although some twenty hours
passed between the time that Pruden was read his rights (and made
of an earlier statement, which followed a valid Miranda waiver)
and the questioning that led to his confession, we conclude that
Pruden was clearly aware of his rights, and that no intervening
events prevented him from making a knowing and intelligent
waiver. We therefore affirm Pruden’s conviction.
        However, we agree with Pruden that the District Court erred
in imposing the mental health condition. Conditions on supervised
release must be reasonably related to specified statutory purposes,
and there is no evidence in the record that links this condition to
any of the enumerated purposes. Additionally, the District Court
granted Pruden’s probation officer the discretion to decide whether
Pruden would have to undergo mental health counseling. This was

                                 2
an impermissible delegation of the judicial power: while probation
officers may have discretion to decide the details of a defendant’s
mental health treatment, they may not be given the authority to
decide whether or not such treatment will be required. We will
therefore vacate this condition on supervised release.

                 I. Facts and Procedural History

       On two occasions in June 2002, Pruden visited a New
Castle, Delaware, gun shop and attempted to purchase a firearm.
Pruden had an extensive record of state felony convictions, mainly
for drug-related crimes, and was forbidden from possessing
firearms. See 18 U.S.C. § 922(g)(1). He was also on probation for
a drug conspiracy conviction. Apparently to avoid the strictures of
§ 922(g)(1), Pruden convinced friends to accompany him to the
gun shop and make the purchase for him. On the first occasion,
Stephanie Crawley filled out an application to buy a gun, but this
application was declined for undetermined reasons. Pruden
returned two days later with another friend, Tiffany Ash, who
successfully purchased a .40 caliber Smith & Wesson pistol with
$400 in cash that Pruden had given her. She turned the gun over to
him. Pruden, in turn, apparently gave it to still another friend
named Willie Andrews, known as “Cheddar.” Andrews was also
a former felon and therefore a § 922(g)(1) prohibited person. In
August 2002, Crawley and Ash were interviewed by agents of the
Bureau of Alcohol, Tobacco, and Firearms (ATF); after initial
denials, they admitted to the facts set forth above.
       Pruden was arrested by ATF agents at a routine meeting
with his probation officer on January 14, 2003. He was questioned
by ATF Special Agents Jason Kusheba and Veronica Hnat. Before
questioning, Agent Kusheba asked Pruden if he was willing to talk,
and upon receiving an affirmative answer, read Pruden the
Miranda warnings. Pruden said that he understood his rights, and
did not ask any questions or request a lawyer. Agent Kusheba again
asked Pruden if he was willing to answer questions, and Pruden
agreed. The agents then questioned Pruden for about half an hour.
He admitted that he had gone to the gun shop with Crawley and
Ash, and that he had picked up and examined some guns on each
occcasion, but he denied that either woman had attempted to buy
a gun for him. He claimed instead that they were purchasing for

                                3
themselves. Agents Kusheba and Hnat then took Pruden to a
federal detention center, where he spent the night.
       The next morning, January 15, 2003, Kusheba and a
different partner drove Pruden from the jail to the courthouse for
an initial hearing. Agent Kusheba explained the booking
procedures to Pruden, and informed him that the prosecutor
planned to ask the magistrate judge to detain him before trial.
Kusheba also “indicated to [Pruden] if there was anything he had,
additional that he had to say, that now was the time to do it
because, once he got to the initial appearance, it would be too late.”
He then reminded Pruden that he had read him his Miranda rights,
and asked Pruden if he remembered them as Kusheba had read
them. Pruden responded that he remembered his rights, did not ask
Kusheba to repeat them, and agreed to answer questions during the
ten-minute ride to the courthouse. Pruden admitted that Andrews
had asked him for help in obtaining a gun, and that he had asked
Ash to go with him to the gun shop to buy a gun for Andrews.
Kusheba did not record this conversation.
       Pruden was charged with aiding and abetting a straw
purchase of a firearm, see 18 U.S.C. § 922(a)(6), and being a felon
in possession of a firearm, see 18 U.S.C. § 922(g)(1). At trial, Ash
and Crawley testified about their visits to the gun shop with
Pruden, and Kusheba testified to the contents of Pruden’s two
statements. Pruden timely moved to suppress these statements,
claiming that they were not given pursuant to a knowing and
voluntary waiver of his Miranda rights, but the District Court
denied his motion. Pruden did not testify, and the jury convicted
him on both counts.
       Prior to Pruden’s sentencing, the Probation Office prepared
a Presentence Report (PSR). The PSR reflects that Pruden has a
lengthy record of juvenile and adult convictions, including
numerous convictions for loitering and trespass, which the
government claims often suggest drug trafficking. The PSR also
describes Pruden’s difficult childhood. His mother was a cocaine
addict who was in prison for most of Pruden’s childhood, and he
did not meet his father until he was seventeen years old. He was
raised by his grandmother, on welfare and with very little
supervision, until her death in 1988, when Pruden was about twelve
years old. After his grandmother’s death, Pruden took to the streets
and raised himself, spending large parts of his teen years in

                                  4
juvenile facilities and completing his GED at one of them.
       The PSR does not report any mental health problems. It
describes Pruden’s mental state as follows:

       According to the defendant, he has never been
       evaluated or treated for a mental or emotional illness,
       and to the best of his knowledge no one within his
       immediate family has ever suffered from mental
       illness. Record obtained from the Glen Mills School
       for Boys reflects, the defendant had a psychological
       evaluation performed on January 22, 1993 [when
       Pruden was sixteen years old]. The psychologist
       concluded, Mr. Pruden did not suffer from any
       mental health deficiencies and was of low average
       intelligence. Presently, Mr. Pruden reports being in
       a good frame of mind and not in need of mental
       health treatment.

Pruden claimed that he used marijuana occasionally, had never
used other illegal drugs, and was developing a drinking problem.
       The District Court imposed a sentence of 21 months of
imprisonment followed by three years of supervised release. This
sentence is within the range recommended by the United States
Sentencing Guidelines.1 The sentence included a number of
conditions on Pruden’s supervised release, one of which requires
Pruden to “participate in a mental health treatment program at the
discretion of his probation officer.” This condition was not
recommended in the PSR or requested by the government. The
District Court explained at sentencing only that the conditions on
supervised release “are put on there for one reason: To give you the
help you need when you get back on the street. They’re not
punitive. They’re assistance. I hope you take them that way, sir.”
       Pruden timely appealed the District Court’s denial of his
motion to suppress his January 15 statement, and the imposition of
the mental health treatment condition on his term of supervised
release. We have jurisdiction pursuant to 29 U.S.C. § 1291.

       1
         Pruden has not appealed the term of imprisonment, so we need
not review this aspect of the sentence. See United States v. Booker, —
U.S. —, 125 S.Ct. 738, 769 (2005).

                                  5
             II. Suppression of Pruden’s Confession

         Pruden timely objected to the introduction of his statements
at trial, and a suppression hearing was held. In an appeal from the
denial of a suppression motion, this Court reviews the District
Court’s factual findings for clear error, and exercises plenary
review of the District Court’s legal conclusions based on those
facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). The
ultimate question of voluntariness of a Miranda waiver is subject
to plenary review, cf. Ahmad v. Redman, 782 F.2d 409, 413 (3d
Cir. 1986); United States v. Martin, 369 F.3d 1046, 1055 (8th Cir.
2004), although we review the historical facts supporting that
conclusion for clear error.
         A defendant may waive his Miranda rights if the waiver is
made knowingly, intelligently, and voluntarily. Miranda v. Arizona,
384 U.S. 436, 444 (1966). Two factors affect this determination:

       First, the relinquishment of the right must have been
       voluntary in the sense that it was the product of a
       free and deliberate choice rather than intimidation,
       coercion, or deception. Second, the waiver must
       have been made with a full awareness of both the
       nature of the right being abandoned and the
       consequences of the decision to abandon it. Only if
       the “totality of the circumstances surrounding the
       interrogation” reveal both an uncoerced choice and
       the requisite level of comprehension may a court
       properly conclude that the M iranda rights have been
       waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986).
       While Pruden objected at trial to the admission of both his
January 14 and January 15 statements, he now concedes, as we
think he must, that the January 14 statement was the product of a
voluntary Miranda waiver. Agent Kusheba read Pruden his rights
and asked if he was willing to talk; Pruden said that he understood
his rights and agreed to talk. Pruden was familiar with his rights,
having been involved in the justice system on numerous previous
occasions. Cf. United States v. Palmer, 203 F.3d 55, 60 (1st Cir.
2000) (“Because he had a record of sixteen prior arrests, the district

                                  6
court found that Palmer comprehended the significance of a
Miranda waiver.”). The circumstances of his interrogation do not
provide any reason to think that the waiver was involuntary: Pruden
was questioned in the probation office, with nothing to indicate
coercion or discomfort.
       Pruden argues, however, that his (second) January 15 waiver
was not knowing, intelligent, and voluntary, because Agent
Kusheba did not re-read the Miranda rights, but only asked Pruden
if he remembered his rights and if he was willing to talk again.
Miranda, however, does not necessarily require that a suspect be
warned anew each time he is questioned. See, e.g., Guam v. Dela
Pena, 72 F.3d 767, 769-70 (9th Cir. 1995) (finding that a fifteen-
hour delay between waiver and statement does not require new
warning and waiver).2
       Instead, the question whether a suspect needs to be warned
when questioning resumes boils down to whether the suspect can
and does effectively waive his Miranda rights at the second
questioning. As Judge M cClure has aptly put it,

       the question of whether a time lapse renders
       Miranda warnings “stale” may be reduced to
       answering two questions: (1) At the time the
       Miranda warnings were provided, did the defendant
       know and understand his rights? (2) Did anything
       occur between the warnings and the statement,
       whether the passage of time or other intervening
       event, which rendered the defendant unable to
       consider fully and properly the effect of an exercise
       or waiver of those rights before making a statement
       to law enforcement officers?

United States v. Vasquez, 889 F. Supp. 171, 177 (M.D. Pa. 1995).
We now adopt this eminently sensible framework for analyzing the


       2
         Pruden attempts to distinguish Dela Pena by noting that the
officers there reviewed Dela Pena’s Miranda rights before resuming
questioning. But in fact Dela Pena disputed this account of events, and
the Ninth Circuit disavowed this rationale and held specifically that “it
was not necessary to repeat the earlier Miranda warnings.” 72 F.3d at
769 n.1.

                                   7
effect of delays between Miranda warnings and custodial
statements.
        The first question is whether Pruden knew and understood
his rights at the time the Miranda warnings were given on January
14. As explained above, we think that the answer to this question
must be yes. The second question is whether the passage of time or
an intervening event rendered Pruden unable to effectively waive
his Miranda rights when he was questioned again the following
morning. A significant amount of time passed between the
Miranda warnings and Pruden’s January 15 statement: the record
does not reflect the exact amount, but it seems that Pruden was
arrested in the afternoon on January 14 and questioned again in the
morning of January 15, suggesting a time lapse of perhaps twenty
hours. This is longer than the periods involved in Dela Pena
(fifteen hours) and Vasquez (three hours), and does seem to be at
the upper end of the permissible range. On the other hand, Agent
Kusheba specifically reminded Pruden of his rights before
resuming questions, and Pruden responded that he understood his
rights, did not ask Kusheba to repeat them, and was willing to
answer questions.
        Beyond the passage of time, we can find no other relevant
event that could have lessened the effectiveness of Pruden’s
Miranda waiver. There are no allegations of mistreatment,
intimidation, or deprivation of food or sleep during the intervening
detention. On both January 14 and January 15, Pruden was
questioned by the same ATF Agent, Kusheba, about the same
offenses. The charges were not escalating, see United States v.
Marc, Crim. No. 96-76-SLR, 1997 WL 129324, *8 (D. Del. 1997)
(suppressing statement taken 10 hours after Miranda warnings
when suspect was arrested and warned for misdemeanor drug
possession, but later questioned about felony firearm charges), and
there were no surprises that might have confused Pruden. Nor is
there any reason to think that the circumstances of the
questioning—in a police car on the way to court—were particularly
intimidating. Pruden points out that he had “literally no choice but
to stay with the agents” during this questioning. That is true, but we
cannot see how that fact distinguishes this questioning from any
other custodial interrogation.
        Finally, Pruden alleges that Agent Kusheba deceived him
into waiving his rights by suggesting that he should make a

                                  8
statement before the initial appearance, at which point “it would be
too late.” Agent Kusheba apparently meant that, if Pruden had
nothing else to say before the appearance, the prosecutor would
move to have him detained before trial. As this appears to have
been true, it is difficult to see how it constitutes deception.
Furthermore, there is no evidence that Kusheba’s statement coerced
Pruden, who unhesitatingly agreed to talk.
       The relatively long time between the Miranda warnings and
the statement at issue, the change of location, the differences
between Pruden’s January 14 and 15 statements, and the lack of
independent corroboration of Pruden’s waiver are considerations
that might counsel against finding an effective Miranda waiver
during the January 15 questioning. These factors make this a fairly
close case. Ultimately, however, we think that the changed
circumstances were not enough to impair Pruden’s ability to make
a knowing and voluntary Miranda waiver. Because Agent Kusheba
reminded Pruden of his Miranda rights, albeit without repeating
those rights in full, and because Pruden plainly remembered the
warnings and unhesitatingly agreed to talk, we hold that his
statement was made pursuant to an effective Miranda waiver, and
should not have been suppressed.

         III. The Mental Health Condition at Sentencing

        Pruden also appeals a condition that the District Court
placed on his three-year term of supervised release, which reads:
“The defendant shall participate in a mental health treatment
program at the discretion of the probation officer.” At sentencing,
Pruden did not object to this condition, and we therefore review the
sentence for plain error. See United States v. Evans, 155 F.3d 245,
248, 251 (3d Cir. 1998); cf. Fed. R. Crim. P. 52(b). Appellant bears
the burden of proof of establishing plain error. United States v.
Olano, 507 U.S. 725, 734-35 (1993). Evans sets forth the plain
error standard:

       There must be an “error” that is “plain” and that
       affects substantial rights.. The deviation from a legal
       rule is “error,” and an error is “plain” if it is “clear”
       or “obvious.” In most cases, an error affects
       substantial rights if it is prejudicial, i.e., affected the

                                   9
       outcome of the district court proceedings. When
       such an error exists, the Court of Appeals has
       authority to order correction, but is not required to
       do so. We will exercise our discretion and vacate the
       sentence if the plain error affecting substantial rights
       also seriously affects the fairness, integrity, or public
       reputation of judicial proceedings.

155 F.3d at 251 (some internal quotation marks and citations
omitted). Thus, if there is plain error, we may correct it, but we
must correct it only if it seriously impacts the fairness of the
judicial system.

           A. Support for the Mental Health Condition

        The District Court is limited in its discretion to impose
conditions on release by the supervised release statute, which “is
not open-textured.” Evans, 155 F.3d at 248. The statute allows the
court to impose a condition upon supervised release to the extent
that the condition “is reasonably related” to certain factors set forth
in § 3553(a)(1) & (2) and involves no greater deprivation of liberty
than is reasonably necessary to achieve the § 3553(a)(2) purposes.
See 18 U.S.C. § 3583(d). The court must thus consider the
following § 3553 factors in setting conditions on supervised
release:

       (1) the nature and circumstances of the offense and
       the history and characteristics of the defendant;
       (2) the need for the sentence imposed—
       ...
       (B) to afford adequate deterrence to criminal
       conduct;
       (C) to protect the public from further crimes of the
       defendant; and
       (D) to provide the defendant with needed
       educational or vocational training, medical care, or
       other correctional treatment in the most effective
       manner;

18 U.S.C.A. § 3553(a). “[I]t is not necessary for all of the factors

                                  10
identified in § 3553(a) to be present before a special condition of
supervised release may be imposed . . . .” United States v. Sicher,
239 F.3d 289, 291 (3d Cir. 2000).
        The § 3553(a) factors are fairly broad, but they do impose
a real restriction on the district court’s freedom to impose
conditions on supervised release. Courts generally cannot impose
such a condition—even one with a clearly rehabilitative
purpose—without evidence that the condition imposed is
“reasonably related,” that is, related in a “tangible way,” Evans,
155 F.3d at 249, to the crime or to something in the defendant’s
history.
        This is not an especially high standard. At the same time,
though, it is a standard with teeth: a condition with no basis in the
record, or with only the most tenuous basis, will inevitably violate
§ 3583(d)(2)’s command that such conditions “involve[] no greater
deprivation of liberty than is reasonably necessary.” To facilitate
review, a district court should state on the record its reasons for
imposing any such condition. See United States v. Loy, 191 F.3d
360, 371 (3d Cir. 1999). Not surprisingly, our sister Courts of
Appeal have set aside conditions that had inadequate support in the
record, as set forth in the margin.3


       3
          See, e.g., United States v. T.M., 330 F.3d 1235, 1240-41 (9th
Cir. 2003) (vacating sex-offender conditions imposed on drug-crime
defendant based on twenty-to-forty-year-old sex offenses); United States
v. Modena, 302 F.3d 626, 636-37 (6th Cir. 2002) (vacating conditions of
release requiring drug counseling and alcohol abstinence in the absence
of evidence that the defendant had a substance abuse problem); United
States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (vacating Internet and sex-
offender conditions imposed as part of bank larceny sentence because
conditions were vague and lacked a reasonable relation to prior incest
conviction); United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001)
(vacating “special conditions of sex offenders” imposed on a bank
robber who had a fifteen-year-old rape conviction, because the sex
offender conditions were unrelated to the crime of conviction and there
was no evidence of a propensity to commit future sexual offenses);
United States v. Bass, 121 F.3d 1218, 1224-25 (8th Cir. 1997) (vacating
conditions barring defendant, who convicted of selling crack cocaine,
from using alcohol, where there was no evidence of that the defendant
abused alcohol or that alcohol played a role in the crime); United States
v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992) (vacating

                                   11
        Here, the District Court did not point to any evidence that
any of the § 3553(a) factors were present in Pruden’s case. As for
§ 3553(a)(1), neither the “nature and circumstances of the offense,”
here an attempt to purchase a weapon illegally, nor the “history and
characteristics of the defendant,” provide any evidence of a need
for mental health treatment. The only evidence of Pruden’s “history
and characteristics” came from the PSR, which tends to show that
Pruden has a generally good mental state with no history of mental
illness. The PSR does detail a troubling family history, although,
as the government itself argued at sentencing, this history is no
worse than that of many other criminal defendants. And while
Pruden has a long criminal history, this alone cannot demonstrate
a need for mental health treatment—for if it did, virtually any
repeat offender could be required to undergo such treatment. Cf.
Evans, 155 F.3d at 249.
        Similarly, while a district court may impose conditions on
supervised release “to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner,”
§ 3553(a)(2)(D), we have no indication that there is in fact any
need for mental health treatment. Again, the PSR does not report
any need for mental health treatment. And no one even suggests
that the mental health condition serves the preventive or deterrent
functions of § 3553(a)(2)(B) or (C).
        We are not unappreciative of the good intentions of the
District Court, as exemplified by its statement to Pruden that the
condition would “give you the help you need when you get back on
the street.” In its desire to try to convert Pruden into a constructive
member of society, the District Court indulged the notion that
mental health treatment might help. But such a notion does not
satisfy our jurisprudence. Moreover, imposition of a condition of
supervised release creates significant costs for the probation
system,4 and can result in sanctions on the defendant for violation


conditions of wire fraud sentence forbidding alcohol and requiring
defendant to submit to warrantless drug and alcohol search, where there
was no evidence that defendant had drug or alcohol problems).
       4
         These costs include paying the professionals who evaluate and
treat defendants. According to the National Treatment Database of the

                                  12
of the condition.
       Given the complete absence of facts that would indicate a
need for this mental health treatment, we cannot find that this
condition is “reasonably related” to any of the allowable purposes
of conditions on supervised release.

               B. Delegation to the Probation Officer

          The condition on supervised release is also invalid because
it delegates to Pruden’s probation officer the decision whether to
require mental health treatment: “The defendant shall participate in
a mental health treatment program at the discretion of the
probation officer.”
          Probation officers have broad statutory authority to advise
and supervise probationers, and to “perform any other duty that the
court may designate.” 18 U.S.C. § 3603(10). But the breadth of
these powers is “limited by the probation officer’s status as a
nonjudicial officer.” United States v. Kent, 209 F.3d 1073, 1078
(8th Cir. 2000). The most important limitation is that a probation
officer may not decide the nature or extent of the punishment
imposed upon a probationer. Id.; see also Ex parte United States,
242 U.S. 27, 41-42 (1916) (“[U]nder our constitutional system the
right to . . . impose the punishment provided by law is judicial
. . . .”).
          This limitation extends not only to the length of a prison
term imposed, but also to the conditions of probation or supervised
release. United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995).
Several courts have derived this limitation on probation officers’
authority from the United States Sentencing Guidelines, see
U.S.S.G. § 5B1.3(b) (“The court may impose other conditions of
probation . . . .”); United States v. Peterson, 248 F.3d 79, 85 (2d
Cir. 2001), but it is of constitutional dimension, deriving from
Article III’s grant of authority over “cases and controversies” to the
courts, see United States v. Meléndez-Santana, 353 F.3d 93, 101


Office of Probation and Pretrial Services of the Administrative Office of
the U.S. Courts, as of September 2004, a total of 10,216 post-conviction
offenders received contracted mental health treatment services paid for
by the Probation Office. The total mental health expenditures ran to
$12,926,006, or some $1,265 per offender.

                                   13
(1st Cir. 2003); United States v. Bernardine, 237 F.3d 1279, 1283
(11th Cir. 2001); Kent, 209 F.3d at 1078-79; Johnson, 48 F.3d at
808-09. In United States v. Loy, 237 F.3d 251, 265 (3d Cir. 2001),
we struck down a delegation to a probation officer for a different
constitutional reason, finding that a condition of supervised release
that prevented the defendant from possessing pornography was
void for vagueness because it gave Loy’s probation officer the
power to decide what materials met the definition of pornography.
       To be sure, probation officers must be allowed some
discretion in dealing with their charges; courts cannot be expected
to map out every detail of a defendant’s supervised release. The
Second Circuit has reconciled these two imperatives, holding that:

       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. On the other hand,
       if the District Court was intending nothing more than
       to delegate to the probation officer the details with
       respect to the selection and schedule of the program,
       such delegation was proper.

Peterson, 248 F.3d at 85 (citations omitted). We agree with this
statement of the standard, which properly balances the need for
flexibility with the constitutional requirement that judges, not
probation officers, set the terms of a defendant’s sentence. Other
courts are generally in accord with this view. See United States v.
Allen, 312 F.3d 512, 515-16 (1st Cir. 2002) (adopting Peterson test
and finding that a mental health condition was intended to be
mandatory, with the administrative details delegated to the
probation officer); Kent, 209 F.3d at 1078-79.
        We apply the Peterson standard to this case. Here, the
District Court thus gave Pruden’s probation officer the authority to
decide whether or not Pruden will have to participate in a mental
health treatment program.5 As this was an impermissible delegation

       5
         It is theoretically possible to read the sentence, “The defendant
shall participate in a mental health treatment program at the discretion
of the probation officer,” to mean that the probation officer shall have

                                   14
of judicial authority, this aspect of the sentence was error.

                            C. Plain Error

        We have concluded that the District Court erred in imposing
the mental health condition, and in delegating discretion to the
probation officer. Given the wealth and unanimity of the
precedents on these issues, we believe that the error was plain. A
plainly erroneous condition of supervised release will inevitably
affect substantial rights, as a defendant who fails to meet that
condition will be subject to further incarceration. Evans, 155 F.3d
at 252. Similarly, “imposing a sentence not authorized by law
seriously affects the fairness, integrity, and reputation of the
proceedings.” Id. Thus, we are required to correct the plain error in
this case by vacating this aspect of the sentence.
        We repeat that this conclusion is no reflection on the
“fairness, integrity, and reputation” of the District Court in this
case. No one has questioned that the District Court’s motivation in
imposing the mental health condition was to help Pruden break the
cycle of recidivism into which he seems to have fallen. Indeed, we
are hesitant to thwart the District Court’s attempt to rehabilitate
Pruden, but we conclude that the law compels us to do so.

                           IV. Conclusion

        For the foregoing reasons, we affirm in part and reverse in
part, and remand to the District Court with directions to vacate the
mental health condition of Pruden’s sentence.




discretion only to choose the particular program, but that participation
in some such treatment program is mandatory. On this interpretation, the
delegation would be permissible. The facts of this case, however—and,
in particular, the lack of any specific findings that Pruden needs such
mental health treatment—make it an implausible reading. At all events,
the government conceded at oral argument that the District Court did not
intend the probation officer’s discretion to extend only to the choice of
particular programs.

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