     Case: 17-30453      Document: 00515002271        Page: 1     Date Filed: 06/19/2019




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

                                     No. 17-30453                            FILED
                                                                         June 19, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff–Appellee,

v.

ALVONTRE GRIFFIN, also known as Tre,

              Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16–CR–25–3


Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
PER CURIAM:*
      Alvontre Griffin, also known as Tre, asserts that the district court’s
written judgment and oral pronouncement conflict. Specifically, he argues that
Paragraph 2’s special conditions—substance abuse counseling, alcohol
consumption abstinence, and payment for treatment costs—are all special
conditions absent from oral pronouncement. Alternatively, Griffin says that
even if there is no conflict, the written judgment unconstitutionally delegated
discretion to the Probation Office to make Griffin participate in substance



      *  Under 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 17-30453
abuse counseling and contribute to treatment costs. For the reasons below, we
VACATE and REMAND in part, and AFFIRM in part.
                                        I
      As part of a plea agreement, Alvontre Griffin pleaded guilty to one count
of conspiracy to distribute and possess with intent to distribute controlled
substances and one count of possession of a stolen firearm. His plea agreement
did not include a waiver of his rights on appeal. The district court sentenced
him within the advisory guidelines range to 97 months of imprisonment for
each count and supervised release terms of four years as to the drug count and
three years as to the firearm count. The pair of prison terms and pair of
supervised release terms were set to run concurrently. Griffin timely appealed.
      At his sentencing hearing, after the sentence, the district court imposed
various standard conditions for Griffin’s supervised release. It also told him,
“you are to submit to a random drug testing as directed by the probation office,
and any substance abuse counseling as directed by the probation office.” Griffin
objected to the prison sentence’s substantive reasonableness but did not
otherwise contemporaneously object to the supervised-release conditions the
district court imposed.
      In the court’s written judgment, paragraph 2 of the “Special Conditions
of Supervision” stated:
      Should the Probation Office feel substance abuse counseling is
      necessary, the defendant will participate in any such program as
      approved by the United States Probation Office. The defendant
      shall refrain from alcohol consumption while in treatment. The
      defendant shall contribute to the costs of treatment in accordance
      with his ability to pay as determined by the Probation Office.

      Griffin’s appellate counsel moved to withdraw under Anders v.
California, 386 U.S. 738 (1967). We denied counsel’s motion and directed
counsel to brief the following nonfrivolous issues:

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      (i) whether, in light of United States v. Franklin, 838 F.3d 564, 566–
      68 (5th Cir. 2016), the district court plainly, and reversibly, erred
      in directing Griffin to participate in substance abuse counseling as
      the Probation Office deems necessary and (ii) whether, in light of
      United States v. Garcia-Flores, 136 F. App’x 685, 689 (5th Cir.
      2005), the district court abused its discretion in directing Griffin to
      “refrain from alcohol consumption while in treatment.”


                                         II
      Griffin makes two primary arguments. First, the district court abused
its discretion when it included paragraph 2 of the special conditions of
supervised release in the written judgment. According to Griffin, each sub-
condition—substance abuse counseling, alcohol consumption abstinence, and
payment for treatment costs—conflicts with the oral pronouncement of
Griffin’s sentence because they are all special conditions that went
unmentioned in the oral pronouncement. He contends that the conflict must
be resolved by conforming the written judgment to the oral pronouncement,
and he requests that we vacate paragraph 2 “and remand to the [district court]
to strike the provisions in paragraph 2 from the written” judgment.
      Second, Griffin argues that, even if there is no conflict, the district court’s
written judgment was an abuse of discretion. It unconstitutionally delegated
discretion to the Probation Office to make Griffin participate in substance
abuse counseling and contribute to treatment costs. Griffin requests that we
“vacate the conditions in paragraph 2, and remand for resentencing.”
                                         A
      We usually review special conditions of supervised release for abuse of
discretion. United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016). But
when a defendant fails to object to the special condition in the district court,
we review for plain error. Id. Where a condition imposed at sentencing differs
from the condition imposed in the written judgment, the defendant would not

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have had an opportunity to object to the condition. So, in those situations, we
review for abuse of discretion. See Franklin, 838 F.3d at 566–67 (reviewing for
abuse of discretion because at sentencing, district court did not mention the
Probation Office much less define that office’s role as it did in the written
judgment).
      Griffin argues that review should be for abuse of discretion. After all, the
first time the Probation Office was given substance-abuse-counseling
discretion was in the written judgment, meaning Griffin did not have the
opportunity to object at the time of sentencing. The Government agrees that
review is for abuse of discretion.
      Ultimately, we—not the parties—decide the proper standard of review.
United States v. Torres-Perez, 777 F.3d 764, 766 (5th Cir. 2015); see also Ward
v. Stephens, 777 F.3d 250, 257 n.3 (5th Cir. 2015) (“A party cannot waive,
concede, or abandon the applicable standard of review.”), abrogated on other
grounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018). The written judgment
undoubtedly    confers    discretion.    Although     the     district   court’s   oral
pronouncement was shorter and worded a bit differently, use of the term “any”
confers discretion. (“As I say, you are to submit to . . . any substance abuse
counseling as directed by the probation office.”). Thus, Griffin was on notice at
his sentencing hearing that the district court intended to confer discretion to
the Probation Office, and we conclude that he had an opportunity to object to
the condition. Given that Griffin did not object to the special condition at the
sentencing hearing, he must meet the plain-error standard to show reversible
error. See United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010) (applying
plain-error review because defendant did not object at sentencing).
      Griffin’s argument that the oral pronouncement conflicts with the
written judgment is misplaced. Both the oral pronouncement and the written
judgment gave the Probation Office discretion to determine whether
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                                  No. 17-30453
counseling is necessary, even if the written judgment used different words. The
Government’s arguments regarding whether a conflict exists and whether the
oral pronouncement is more “onerous” than the written judgment are likewise
misplaced.
      Under the plain-error standard, Griffin must show a clear or obvious
error that affected his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he does, we have the discretion to correct the error but only
if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      Imposing supervised release conditions and terms “is a core judicial
function that may not be delegated.” Franklin, 838 F.3d at 568 (internal
quotation marks and citations omitted). A district court may delegate details
of a treatment-related condition to a probation officer, but it may not give “a
probation officer authority to decide whether a defendant will participate in a
treatment program.” Id. (internal quotation marks and citations omitted).
Franklin vacated a mental health treatment condition that directed the
defendant “to participate in a mental health program as deemed necessary and
approved by the probation officer.” Id. at 566–68. This phrase “create[d] an
ambiguity regarding whether the district court intended to delegate authority
not only to implement treatment but to decide whether treatment was needed.”
Id. at 568 (internal quotation marks and citation omitted). Therefore, to the
extent the district court phrased the condition in a manner that grants Griffin’s
probation officer discretion to decide whether he must participate, it erred by
delegating a core judicial function. See id.
      This error was obvious because a court’s inability to delegate its judicial
authority is not “subject to reasonable dispute” under current precedent.
Puckett, 556 U.S. at 135; see Franklin, 838 F.3d at 568; see also United States
v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (holding that
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                                  No. 17-30453
we determine an error’s plainness at the time of appeal). The next inquiry,
then, is whether the district court’s error affected Griffin’s substantial rights
and, if it did, whether the error warrants the exercise of our corrective
discretion. See Puckett, 556 U.S. at 135.
      We recently held in United States v. Barber that this type of error
affected a defendant’s substantial rights because a person other than an Article
III judge performed a core judicial function. 865 F.3d 837, 840 (5th Cir. 2017).
      As to the fourth plain-error prong, we must ask whether the error
warrants exercising our discretion. See United States v. Scott, 821 F.3d 562,
571 (5th Cir. 2016). To answer that, we consider “the degree of the error and
the particular facts of the case to determine whether to exercise our discretion.”
United States v. Avalos-Martinez, 700 F.3d 148, 154 (5th Cir. 2012) (internal
quotation marks and citation omitted). In Barber, we exercised our discretion
to vacate the special condition and remand for resentencing. 865 F.3d at 841.
      Although Griffin has arguably shown a clear or obvious error, he does
not assert that the error affected his substantial rights—recall that he believes
the appropriate standard is abuse of discretion. Neither does he argue that
failure to correct any error would seriously affect the fairness, reputation, or
integrity of judicial proceedings. See Puckett, 556 U.S. at 135. This weighs
against finding reversible plain error. See United States v. Williams, 620 F.3d
483, 496 (5th Cir. 2010). We directed Griffin’s counsel to address whether “the
district court plainly, and reversibly, erred in directing Griffin to participate
in substance abuse counseling as the Probation Officer deems necessary,” but
counsel has identified no effect on substantial rights or the proceeding’s
fairness, reputation, or integrity.
      The Government also asserted that abuse-of-discretion review applies,
relying on the faulty premise that the district court’s oral pronouncement
required that Griffin participate in substance abuse counseling rather than
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                                  No. 17-30453
delegating to the probation officer discretion to determine whether “any”
counseling was warranted. So, the Government’s request that we instruct “the
district court to conform the written judgment to the more onerous oral
pronouncement” is off the mark.
      Considering Griffin’s failure to address the third and fourth prong of
plain-error review, it is not clear cut whether we should exercise our discretion
to correct the error. Nonetheless, we will follow Barber’s example by
VACATING the counseling condition and REMANDING to the district court
with the same instruction given in Franklin and Barber:
         If the district court intends that the [counseling] be
         mandatory but leaves a variety of details, including the
         selection of a [counseling] 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.

      Franklin, 838 F.3d at 568; Barber, 865 F.3d at 841.
                                       B
      Griffin argues that because the special condition prohibiting the use of
alcohol in the written judgment was not orally pronounced, there is a conflict,
and the condition should be vacated. He says the record is devoid of any
“evidence of alcohol use or abuse” and the condition “bears no rational
relationship to” his offense.
      Because the district court’s oral pronouncement did not include a
directive that Griffin refrain from alcohol consumption while in counseling,
Griffin did not have an opportunity to object to it and we review for abuse of
discretion. See Franklin, 838 F.3d at 566–67. A defendant has a constitutional
right to be present at sentencing; accordingly, where an oral pronouncement of

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sentence conflicts with the written judgment, the oral pronouncement controls.
See United States v. Mireles, 471 F.3d 551, 557–58 (5th Cir. 2006); United
States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). We said in Mireles,
that “[t]he key determination is whether the discrepancy between the oral
pronouncement and the written judgment is a conflict or merely an ambiguity
that can be resolved by reviewing the rest of the record.” 471 F.3d at 558.
      In Torres-Aguilar we “emphasized the importance of whether the
condition omitted from the oral pronouncement was a standard or a special
condition of supervised release.” 352 F.3d at 936 (citing United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001)). Generally, if standard conditions
that were not in the oral pronouncement appear in the district court’s written
judgment, there is no conflict. See id. But “if the district court fails to mention
a special condition at sentencing, its subsequent inclusion in the written
judgment creates a conflict that requires amendment of the written judgment
to conform with the oral pronouncement.” United States v. Vega, 332 F.3d 849,
852–53 (5th Cir. 2003) (per curiam). Yet, Torres-Aguilar clarified that “the
Sentencing Guidelines’ identification of the conditions enumerated in
§ 5D1.3(d) as ‘special’ does not foreclose the possibility that a district court may
properly include them in its judgment without orally informing the defendant
of the conditions at the sentencing hearing.” 352 F.3d at 937 (citing United
States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)). If the relevant
circumstances § 5D1.3(d) mentions are present, then they are functionally
standard    conditions.   See   id.   To   determine   whether     the   § 5D1.3(d)
circumstances are present, we ask whether “the basis for imposing [the special
condition] was undisputed and based on objective facts easily determined from
the record.” United States v. Bigelow, 462 F.3d 378, 382 (5th Cir. 2006).
      Section 5D1.3(d)(4), which discusses special conditions dealing with
substance abuse, recommends imposing its special conditions “[i]f the court has
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                                 No. 17-30453
reason to believe that the defendant is an abuser of narcotics, other controlled
substances or alcohol.” The PSR’s findings indicate that Griffin began using
marijuana (a controlled substance) when he was fourteen years old. He
continued to use marijuana every day up to the instant offense. According to
the PSR, Griffin began a drug treatment program in 2016, but failed to
complete that program due to his instant offense, which involved between 112
and 196 grams of cocaine base. Nevertheless, in light our circuit’s caselaw, it
is not entirely clear whether the relevant § 5D1.3(d)(4) circumstances were
present.
      In Torres-Aguilar, we held that a special condition—a prohibition
against possessing any dangerous weapon—transformed into a standard
condition because the circumstances that supported imposing the weapons ban
condition were objectively and undisputedly present. 352 F.3d at 937. A special
condition against possessing dangerous weapons is recommended when the
defendant has a prior felony conviction, and both sides recognized that the
defendant had previously been convicted of a felony. See id. So, this special
condition functionally became a standard condition, meaning it was
permissible to include it in the written judgment even though the district court
never orally announced it.
      Contrast Torres-Aguilar with United States v. Bigelow, 462 F.3d 378.
Unlike Torres-Aguilar, where the circumstances were binary—either the
defendant had a prior felony conviction or he did not—and undisputed, Bigelow
involved determining whether § 5D1.3(d)(4)’s relevant circumstances were
present. Those circumstances are hazier, existing on a spectrum (whether “the
defendant is an abuser of narcotics, other controlled substances or alcohol”).
Even though there were portions of the record that could plausibly support
finding that § 5D1.3(d)(4)’s relevant circumstances were present, we held that
this was not the same sort of undisputed, objective basis that grounded our
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Torres-Aguilar decision. Bigelow, 462 F.3d at 382. Accordingly, we remanded
to the district court to conform its written judgment to the oral pronouncement
because the two conflicted. Id. at 383.
      Moreover, Martinez binds us: “The district court’s failure to mention
mandatory drug treatment in its oral pronouncement constitutes a conflict, not
an ambiguity.” 250 F.3d at 942. The special condition of mandatory drug
treatment shares the same requisite circumstances as an alcohol abstinence
condition. See U.S.S.G. § 5D1.3(d)(4)(A)–(B) (the court must determine
whether “the defendant is an abuser of narcotics, other controlled substances
or alcohol”). We distinguish Griffin’s case from Torres-Aguilar and hold that
this falls on the same side of the undisputed-and-objective standard as
Martinez and Bigelow. Therefore, we REMAND to the district court to conform
the written judgment to the pronouncement regarding the alcohol abstinence
condition.
                                          C
      Finally, Griffin argues that the district court abused its discretion by
conferring discretion on the probation officer to determine whether and how
much Griffin contributes to his treatment costs.
      The written judgment’s requirement that Griffin “shall contribute to the
costs of treatment in accordance with his ability to pay” does not conflict with
the oral pronouncement of the substance abuse condition, which mentioned
nothing about payment. We have affirmed such language before, explaining
that it is nothing more than “an ambiguity” that is consistent with the
sentencing court’s intent (despite a lack of oral pronouncement). See, e.g.,
United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (affirming written
judgment’s added language requiring defendant to pay for costs of drug
treatment, sex offender counseling, and anger management counseling). In
Vega, 332 F.3d at 852, we reasoned that “the requirement that a defendant
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                                No. 17-30453
bear the costs of his drug treatment is ‘clearly consistent’ with the court’s
intent that he attend treatment,” and concluded that “no modification” of the
judgment was warranted. Id.
      Although the language requiring Griffin to contribute to substance-
abuse-counseling costs was not pronounced at the sentencing hearing, it is
consistent with the condition that he participate in counseling. Accordingly,
the written judgment’s specification that Griffin contribute to the costs of
substance abuse counseling did not conflict with the oral pronouncement of the
condition. See Warden, 291 F.3d at 365.
                                     III
      In sum, we VACATE and REMAND with respect to the first two
issues—substance abuse counseling and refraining from consuming alcohol.
We AFFIRM with respect to the third issue—payment for treatment costs.




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