     Case: 16-41357      Document: 00514157767         Page: 1    Date Filed: 09/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-41357                                FILED
                                  Summary Calendar                      September 15, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADRIAN VIVIAN MORENO, also known as Adrian Vivian Palomares,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-213-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Adrian Vivian Moreno pleaded guilty to possession with intent to
distribute 50 kilograms or more of marijuana. The district court sentenced
him to 87 months of imprisonment, to be followed by 3 years of supervised
release.    As explained by the district court, Moreno’s supervised release
included a substance abuse treatment condition, which provided that he
“participate as instructed and as deemed necessary by the Probation Office.”


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-41357     Document: 00514157767      Page: 2    Date Filed: 09/15/2017


                                  No. 16-41357

Challenging his sentence on appeal, Moreno contends, in pertinent part, that
the district court impermissibly delegated authority to the probation officer to
determine whether he should undergo substance abuse treatment as a
condition of his supervised release.
      Because Moreno did not raise his challenge in the district court, our
review is for plain error. United States v. Franklin, 838 F.3d 564, 566 (5th Cir.
2016). The imposition of supervised release conditions and terms “is a core
judicial function that cannot be delegated.” Id. at 568 (internal citation and
quotation marks omitted). Moreno has shown clear or obvious error because
the language of the challenged condition “created ambiguity as to whether the
district court had permissibly delegated authority to decide the details of a
sentence's implementation or had impermissibly delegated the authority to
impose a sentence.” United States v. Barber, __ F.3d __, 2017 WL 3299306, at
*2 (5th Cir. Aug. 3, 2017).
      Additionally, we conclude that this error affected Moreno’s substantial
rights because it involves “his right to be sentenced by an Article III judge.”
Id. at *2. Finally, we exercise our discretion to correct the error, in light of our
vigilance in preserving “the judiciary’s exclusive authority to impose
sentences.”    Id. at *3 (internal citation and quotation marks omitted).
Consequently, we VACATE the challenged condition of release and REMAND
to the district court for resentencing, with the clarifying instruction we offered
in Franklin, 838 F.3d at 568:
      If the district court intends that the [treatment] be mandatory but
      leaves a variety of details, including the selection of a [treatment]
      provider and schedule to the probation officer, such a condition of
      probation may be imposed. If, on the other hand, the court intends
      to leave the issue of the defendant's participation in [treatment] to
      the discretion of the probation officer, such a condition would
      constitute an impermissible delegation of judicial authority and
      should not be included.


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