     Case: 09-40642     Document: 00511214916          Page: 1    Date Filed: 08/25/2010




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

                                                 FILED
                                                                           August 25, 2010
                                     No. 09-40642
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARUICE TURPIN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-59-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Maurice Turpin pleaded guilty to transporting an unlawful alien and was
sentenced to 57 months of imprisonment, to be followed by three years of
supervised release. As a special condition of supervised release, the district
court, in its written judgment, ordered Turpin to participate in mental health
and anger management programs “as deemed necessary and approved by the
probation officer.” When imposing sentence orally, the district court merely
stated that Turpin would be subject to conditions of supervision including “anger

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40642

management” and “mental health,” and said nothing about the probation
officer’s role.
       Turpin contends on appeal that the district court impermissibly delegated
its judicial authority and committed plain error by requiring participation in the
mental health and anger management programs “as deemed necessary and
approved by the probation officer.” There is currently a circuit split on this
issue. The Third, Fourth, and Eleventh Circuits have held that imposing a
sentence, including conditions of probation, is a strictly judicial function that
may not be delegated. United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005);
United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995) (“[T]he imposition of
a sentence, including any terms for probation or supervised release, is a core
judicial function”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005)
(“[D]elegating to the probation office the authority to decide whether a defendant
will participate in a treatment program is a violation of Article III.”).
       However, the Eight and Ninth Circuits have held that, as long as a judicial
officer retains ultimate authority and responsibility for approving conditions of
probation, limited authority regarding the details of supervised release may be
delegated to probation officers. United States v. Mickelson, 433 F.3d 1050, 1057
(8th Cir. 2006); United States v. Bowman, 175 F. App’x. 834, 838 (9th Cir. 2006)
(unpublished) (finding that delegating limited authority to probation officer to
recommend whether or not defendant should have unsupervised visits was
permissible, because “if the probation officer arbitrarily or unfairly denies
[defendant] a favorable recommendation, [defendant] is free to seek relief from
the district court . . . .”). The Sixth Circuit has held that, although “fixing the
terms and conditions of probation is a judicial act which may not be
delegated,”delegating such things as the schedule of restitution payments is
permissible. Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir. 2001)
(quoting Whitehead v. United States, 155 F.2d 460, 462 (6th Cir. 1946)). The
Fifth Circuit has not yet decided whether it is permissible for a court to delegate

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                                 No. 09-40642

to a probation officer the determination of whether mental health treatment will
be required as part of supervised release.
      However, we need not reach the delegation issue in Turpin’s appeal,
because Turpin also argues that the case should be remanded for clarification.
Turpin contends that the district court’s intent as to the probation officer’s role
is unclear, and we agree. See, e.g., United States v. Lopez-Muxtay, 344 F. App’x
964, 965-66 (5th Cir. 2009) (unpublished) (vacating and remanding for
resentencing when the written judgment and oral sentencing conflicted). As in
Lopez-Muxtay, the written judgment is unclear regarding “whether the district
court intended to grant [the appellant]’s probation officer the authority not only
to implement the condition but to determine whether [the appellant] should or
should not undergo mental health treatment while on supervised release.” Id.
at 965. Accordingly, this case is REMANDED for proceedings consistent with
this opinion.




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