     Case: 10-40381     Document: 00511570466         Page: 1     Date Filed: 08/12/2011




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

                                                                            FILED
                                                                          August 12, 2011
                                     No. 10-40381
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANGELITA FERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-953-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Angelita Fernandez pleaded guilty to one count of conspiracy to transport
an undocumented alien in violation of 8 U.S.C § 1324. The district court
sentenced her to 26 months in prison, followed by a three-year term of
supervised release. In the written judgment setting forth the conditions of
supervised release, the court ordered that Fernandez participate in drug or
alcohol treatment “as instructed and as deemed necessary by the probation
officer and [that she] comply with all rules and regulations of the treatment

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-40381

agency until discharged by the Program Director with the approval of the
probation officer.” The court also ordered that Fernandez “participate in a
mental health program as deemed necessary and approved by the probation
officer,” and that she “participate in a psychiatric treatment program as deemed
necessary and approved by the probation officer.” Fernandez appeals these
conditions, arguing that an Article III judicial officer may not delegate to a non-
Article III official determinations regarding whether a defendant must
participate in treatment programs.
      As Fernandez concedes, the mental health and drug treatment conditions
were included in a list provided at rearraignment of certain supervised release
conditions that might be imposed. Because she was on notice of these conditions
and raised no objection when they were announced at sentencing, our review is
for plain error. See United States v. Bishop, 603 F.3d 279, 280 (5th Cir.), cert.
denied, 131 S. Ct. 272 (2010); United States v. Bleike, 950 F.2d 214, 220 (5th Cir.
1991). We have consistently held that the same constitutional issue raised here
is unsettled in this circuit and, therefore, there can be no clear or obvious error
for purposes of plain error review.      See Bishop, 603 F.3d at 281 & n.8.
Accordingly, with respect to the mental health and drug treatment conditions,
we affirm the judgment of the district court.
      However, the psychiatric treatment condition, including the challenged
delegation language, was not included in the list provided at rearraignment, nor
did the court recite the delegation language at sentencing. Thus, we review for
an abuse of discretion. See United States v. Torres-Aguilar, 352 F.3d 934, 935
(5th Cir. 2003). We need not reach whether the court abused its discretion,
however. Rather, we agree with Fernandez that a remand for clarification is
appropriate, because the written judgment is unclear regarding “whether the
district court intended to grant [Fernandez’s] probation officer the authority not
only to implement the condition but to determine whether [Fernandez] should
or should not undergo [psychiatric] treatment while on supervised release.”

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                                 No. 10-40381

United States v. Turpin, 393 F. App’x 172, 174 (5th Cir. 2010); United States v.
Lopez-Muxtay, 344 F. App’x 964, 965-66 (5th Cir. 2009).
      Accordingly, we vacate the judgment with respect to the psychiatric
treatment condition, and we remand for further proceedings consistent with this
opinion. We express no opinion regarding the proper resolution of this issue.
The judgment of the district court is affirmed in all other respects.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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