     Case: 15-50197        Document: 00513628628     Page: 1   Date Filed: 08/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                      No. 15-50197                            FILED
                                                                         August 8, 2016

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                Plaintiff–Appellee,

v.

ROBERT MORIN,

                Defendant–Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Robert Morin pleaded guilty to failing to register as a sex offender as
required by the Sex Offender Registration and Notification Act (SORNA). 1 The
district court sentenced Morin to 33 months of imprisonment and five years of
supervised release. Morin challenges two special conditions of his supervised
release. He contends that the district court impermissibly delegated judicial
authority by directing that Morin comply with unspecified “lifestyle
restrictions” that might be imposed by a therapist throughout the term of
supervised release. Morin additionally argues that the requirement that he


      1   18 U.S.C. § 2250(a).
     Case: 15-50197         Document: 00513628628    Page: 2   Date Filed: 08/08/2016



                                      No. 15-50197
abstain from the use of alcohol during his term of supervised release was not
included in the district court’s oral pronouncement of the sentence.
       We vacate the challenged conditions and remand for further proceedings.
                                           I
       As a result of Morin’s 2002 Illinois conviction of aggravated sexual abuse
of a victim 13 to 17 years old, Morin is required to register as a sex offender
under SORNA. Morin relocated to Wisconsin and then to Texas. Though he
registered as a sex offender in Wisconsin, he failed to update that registration
after moving to Texas and did not register in Texas. Morin was convicted of
violating 18 U.S.C. § 2250.
       The presentence report (PSR) recommended several conditions of
supervised release, including the possibility of participation in a sex offender
treatment program and a directive that Morin must follow all lifestyle
restrictions or treatment requirements imposed by a therapist.             The PSR
additionally recommended that Morin be required to abstain from the use of
alcohol or other intoxicants during the term of supervision.
       Morin filed written objections, arguing that the special condition
regarding compliance with all lifestyle restrictions imposed by a therapist
constituted an impermissible delegation of the district court’s authority.
Responsive to Morin’s concern, the Government at sentencing suggested that
the condition be revised to require the therapist to recommend lifestyle
restrictions to the court through the probation officer, with the court retaining
ultimate decision-making authority.            Morin also challenged the special
condition regarding the consumption of alcohol, contending it was not
reasonably related to Morin’s criminal history or the relevant statutory
factors. 2


       2   See 18 U.S.C. § 3553(a).
                                           2
    Case: 15-50197     Document: 00513628628      Page: 3   Date Filed: 08/08/2016



                                  No. 15-50197
      In its oral pronouncement, the district court “ordered [Morin] to
participate in a sex offender evaluation and treatment, and [to] follow all
lifestyle restrictions as determined by the . . . therapist”; the court did not
mention the special condition regarding alcohol. The district court’s written
judgment subsequently listed eight special conditions of supervised release,
including the following:
      [1] The defendant shall abstain from the use of alcohol and/or all
      other intoxicants during the time of supervision.
       ....

       [3] The defendant shall attend and participate in a sex offender
       treatment program operated by a Licensed Sex Offender
       Treatment Provider (LSOTP) and/or other sex offender treatment
       program approved by the probation officer. The defendant shall
       abide by all program rules, requirements and conditions of the sex
       offender treatment program, including submission to polygraph
       examinations, to determine if the defendant is in compliance with
       the conditions of release. The defendant may be required to
       contribute to the cost of service rendered (copayment) in an
       amount to be determined by the probation officer, based on the
       defendant’s ability to pay.


      [4] The defendant shall follow all other lifestyle restrictions or
      treatment requirements imposed by the therapist, and continue
      those restrictions as they pertain to avoiding risk situations
      throughout the course of supervision . . . .
Morin has appealed, challenging Conditions 1 and 4.
                                        II
      The Government contends that Morin’s challenge to Special Condition
No. 4 as an improper delegation of judicial authority is not ripe for review
because it is currently uncertain what, if any, lifestyle restrictions or treatment
requirements will be imposed. The Government cites our decision in United
States v. Tang, in which a special condition required the defendant to

                                        3
     Case: 15-50197         Document: 00513628628            Page: 4   Date Filed: 08/08/2016



                                         No. 15-50197
“participate in a mental health program—treatment program and/or sex
offender treatment program provided by the registered sex offender treatment
provider.” 3 The defendant claimed that the district court did not realize that
it could order mental health treatment without ordering sex offender
treatment; should not have mandated, or left open the possibility of, sex
offender treatment; and that the district would not have included this
condition if the court had appreciated its ability to order mental health
treatment without ordering sex offender treatment. 4 We concluded that these
contentions were not ripe for review because the optional condition of sex
offender treatment might never be imposed. 5 We observed that “[t]he district
court simply left to the discretion of the treatment provider the decision of what
type of treatment would be most effective.” 6 The defendant in Tang did not
challenge the district court’s authority to delegate decisions regarding lifestyle
restrictions to the treatment provider. We did not hold in Tang, or consider,
whether such a delegation was improper.
       Whether Condition No. 4 impermissibly delegates judicial authority is a
question of law.           Our court and other circuit courts have considered
impermissible delegation claims on direct review. 7 Whether the district court


       3   718 F.3d 476, 484 (5th Cir. 2013) (per curiam).
       4   Id. at 485.
       5   Id.
       6 Id. (“The first three challenges are without merit because the district court included
them only as options . . . not as mandatory conditions. . . . The language of the
judgment . . . states that Tang’s treatment ‘may include . . . physiological testing,’ not ‘must
include’ such testing.”); see also United States v. Ellis, 720 F.3d 220, 227 (5th Cir. 2013)
(rejecting as unripe a claim similar to that in Than and explaining that the defendant could
“petition the district court for a modification of his conditions,” if and when he was subjected
to the alleged objectionable procedures.”).
       7 See, e.g., United States v. Mata, 624 F.3d 170, 173, 177 (5th Cir. 2010) (per curiam)
(“One of the conditions of Mata’s supervised release is that she is required to participate in a
mental-health program ‘as deemed necessary by the Probation department.’”); United States
v. Bishop, 603 F.3d 279, 280-82 (5th Cir. 2010) (“Bishop was ordered to ‘participate in a
                                                4
     Case: 15-50197         Document: 00513628628          Page: 5     Date Filed: 08/08/2016



                                          No. 15-50197
improperly delegated judicial authority to a treatment provider is ripe, and we
conclude that we have jurisdiction to exercise our discretion to consider Morin’s
argument.
                                               III
       Morin argues that Condition No. 4 constitutes an improper delegation
because it permits a therapist, not a court, to “decide the nature or extent of
the punishment imposed.” 8 He contends that the breadth of Condition No. 4
presents the possibility that a therapist could impose “lifestyle restrictions”
that invade significant liberty interests and that those restrictions would be
applicable throughout the entirety of supervised release under the terms of the
court’s judgment. We review “properly preserved objections to the imposition
of conditions of supervised release for an abuse of discretion.” 9
       We agree with the Government that a court may determine that the
manner and means of therapy during a treatment program may be devised by
therapists rather than the court. However, as presently constructed, Condition
No. 4 extends to a therapist the authority to impose, without court review,
independent conditions of supervised release that might extend beyond the
period of supervised release and that could serve as the basis for violations of




mental health program as deemed necessary and approved by the probation officer.’”); see
also United States v. Matta, 777 F.3d 116, 121-23 (2d Cir. 2015); United States v. Thompson,
653 F.3d 688, 692-93 (8th Cir. 2011); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir.
2009); United States v. Pruden, 398 F.3d 241, 250-51 (3d Cir. 2005); United States v.
Melendez-Santana, 353 F.3d 93, 101-102 (1st Cir. 2003), overruled on other grounds by United
States v. Padilla, 415 F.3d 211, 215 (1st Cir. 2005); see also United States v. Jackson, 491 F.
App’x 554, 556 (6th Cir. 2012) (per curiam) (unpublished) (“Because Jackson raises a purely
legal challenge to whether the district court improperly delegated its authority . . . , his claim
is ripe for review.”)
       8   See Pruden, 398 F.3d at 250.
       9   United States v. Salazar, 743 F.3d 445, 448 (5th Cir. 2014).
                                                5
     Case: 15-50197         Document: 00513628628        Page: 6   Date Filed: 08/08/2016



                                         No. 15-50197
the terms of supervised release separate and apart from non-compliance with
the treatment program.
       Condition No. 4 differs from special conditions considered and upheld by
our sister courts of appeals. In United States v. Fellows, the Ninth Circuit
concluded that the condition that the defendant “‘follow all other lifestyle
restrictions or treatment requirements’ imposed by his therapist . . . simply
ordered [the defendant] to comply fully with [the sex offender program]” and
was therefore permissible. 10 The challenged condition in Fellows was tethered
to the treatment program; it did not permit the therapist to impose conditions
that would extend beyond the treatment program, or create independent
conditions of release apart from complying fully with the treatment program,
as here.
       In United States v. Bender, the Eighth Circuit upheld a condition
requiring the defendant to “follow all other lifestyle restrictions or treatment
requirements imposed by the therapist,” reasoning that the district court had
“‘g[iven] no indication that it would not retain ultimate authority over all of
the conditions of [the defendant’s] supervised release.’” 11 While Bender did not
parse the language of the challenged condition, it did cite to two other Eighth
Circuit cases—United States v. Mickelson 12 and United States v. Kent 13—both
of which are instructive.          In Mickelson, the court held that there was no
improper delegation when the conditions imposed on the defendant included
those at the discretion of the probation officer because the district court
“specifically stated that it intended to limit conditions to those actually


       10   157 F.3d 1197, 1200, 1204 (9th Cir. 1998).
       11566 F.3d 748, 750, 752 (8th Cir. 2009) (quoting United States v. Mickelson, 433 F.3d
1050, 1057 (8th Cir. 2006)).
       12   433 F.3d 1050 (8th Cir. 2006).
       13   209 F.3d 1073 (8th Cir. 2000).
                                                6
     Case: 15-50197         Document: 00513628628         Page: 7     Date Filed: 08/08/2016



                                         No. 15-50197
needed,” indicating that it would “retain[ ] and exercise[ ] ultimate
responsibility” over the conditions. 14 By contrast, in Kent, the court held that
there was an improper delegation when the challenged condition permitted the
probation officer to determine whether the defendant would be required to
undergo psychiatric treatment, and the district court “explicitly stated it hoped
it would not be ‘riding herd’ on the probation officer’s decision.” 15 In the
present case, the district court’s express refusal to grant the modification
requested by both Morin and the Government—a modification that would have
required the therapist to recommend lifestyle restrictions to the court through
the probation officer—suggests that the court did not intend to “retain[ ] and
exercise[ ] ultimate responsibility.” 16
       We emphasize that it is not our intention to tie the hands of a district
court in imposing conditions of supervised release. District courts should be
afforded the flexibility to impose conditions to rehabilitate offenders and
minimize the possibility that they will commit further crimes.                      However,
preserving the judiciary’s exclusive authority to impose sentences is an area in
which it is important for courts to be vigilant. 17 We note that, in this case, the
district court extensively exercised its authority to impose conditions of
release; beyond the mandatory conditions, the court imposed 22 standard
conditions and 8 special conditions of supervised release, many of which could


       14   433 F.3d at 1056-57 (citing Kent, 209 F.3d at 1078-79).
       15   209 F.3d at 1078-79.
       16   Mickelson, 433 F.3d at 1056-57 (citing Kent, 209 F.3d at 1078-79).
       17 See Mistretta v. United States, 488 U.S. 361, 416-18 (1989 (Scalia, J., dissenting);
see also U.S.S.G. § 5B1.3(b) (“The court may impose other conditions of probation . . . .”
(emphasis added)); United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015) (“[A] district court
may not delegate . . . decisionmaking authority which would make a defendant’s liberty itself
contingent upon a [non-judicial officer’s] exercise of discretion.”); United States v. Pruden,
398 F.3d 241, 250 (3d Cir. 2005) (holding that it is the court’s role to “decide the nature or
extent of the punishment imposed upon a probationer”).
                                                7
     Case: 15-50197       Document: 00513628628          Page: 8     Date Filed: 08/08/2016



                                       No. 15-50197
be construed as “lifestyle restrictions.” Our holding does not inhibit the district
court’s ability to add conditions that are recommended by non-judicial actors
(such as probation officers or therapists) so long as those actors follow the
normal procedure and forward the recommendations to the district judge for
final approval.
       Condition No. 4 does not merely reaffirm the obvious—that a treatment
provider must have the authority to set and enforce restrictions necessarily
integral to the sex offender treatment program. 18 In other words, it is not, as
the Government suggests, simply coextensive with two other unobjected-to
conditions that properly require Morin to “abide by all program rules,
requirements and conditions of the sex offender treatment program . . . .”
Rather, it vests a private therapist with the ability to impose “lifestyle
restrictions” that are potentially unnecessary to the treatment process and
could remain in force throughout the term of supervised release. Without the
supervision of the district court, Condition No. 4 constitutes an improper
delegation of judicial authority.
       Our independent review reveals that Condition No. 4 differs from
provisions in other districts and is perhaps only imposed in the Western
District of Texas. 19 The fact that courts in other districts have fashioned
sufficient conditions of supervised release in this area reinforces our
determination that our holding regarding Condition No. 4 will not impair a


       18United States v. Fellows, 157 F.3d 1197, 1204 (9th Cir. 1998) (“The court cannot be
expected to design and implement the particularities of a treatment program. That the court
allowed a therapist to do so does not mean the court delegated its authority to impose
conditions of release.”).
       19 See, e.g., United States v. Hees, 640 F. App’x 366, 367 (5th Cir. 2016) (per curiam);
United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015); United States v. Rouland, 726 F.3d
728, 730 (5th Cir. 2013); United States v. Elkins, 335 F. App’x 457, 459 n.1 (5th Cir. 2009)
(per curiam); Woody v. United States, No. A-07-CR-215(1)-LY, 2009 WL 2461230, at *1 (W.D.
Tex. Aug. 7, 2009).
                                              8
     Case: 15-50197         Document: 00513628628          Page: 9    Date Filed: 08/08/2016



                                         No. 15-50197
federal district court’s ability to require sex offender treatment and compliance
with such treatment, as well as other independent conditions necessary to
rehabilitate and monitor sex offenders.
                                               IV
       Morin argues that the written judgment must be amended to delete
Special Condition No. 1—which requires Morin to abstain from alcohol and
other intoxicants—because the written judgment conflicts with the district
court’s oral pronouncement. Morin’s challenge is reviewed for an abuse of
discretion, because he “had no opportunity at sentencing to consider, comment
on, or object to the special condition[] later included in the written judgment.” 20
       It is well settled that a “defendant has a constitutional right to be present
at sentencing.” 21 We have held that “when there is a conflict between a written
sentence and an oral pronouncement, the oral pronouncement controls.” 22 But
when “the difference between the two is only an ambiguity, we look to the
sentencing court’s intent to determine the sentence.” 23
       The Government concedes, and we agree, that the district court’s failure
to rule on Morin’s objection to Special Condition No. 1, coupled with the court’s
silence on the Condition during its oral pronouncement, creates a conflict, not
an ambiguity. Accordingly, we vacate Special Condition No. 1 and “remand
the case for the district court to amend its written judgment to conform to its
oral sentence.” 24



       20   United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
       21Id. at 380-81 (quoting United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003));
United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003) (per curiam); United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam).
       22   Torres-Aguilar, 352 F.3d at 935 (quoting Martinez, 250 F.3d at 942).
       23   Bigelow, 462 F.3d at 381.
       24   See Martinez, 250 F.3d at 942.
                                                9
   Case: 15-50197   Document: 00513628628    Page: 10   Date Filed: 08/08/2016



                              No. 15-50197
                             *     *        *
     For the foregoing reasons, we VACATE Conditions No. 1 and No. 4 and
REMAND to the district court for further proceedings consistent with this
opinion.




                                   10
