                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4950


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL EUGENE MILLER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, Chief
District Judge. (1:98-cr-00004-jpj-1)


Submitted:    July 9, 2009                  Decided:   August 28, 2009


Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant.    Julia C. Dudley, United States Attorney, Steven
Randall Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Michael     Eugene     Miller    appeals      the   district     court’s

judgment revoking his supervised release and sentencing him to

eight months’ imprisonment followed by a thirteen-month term of

supervised    release.       On   appeal,    Miller   does      not   contest   the

district   court’s     decision    to   revoke     his    supervised        release;

rather, he challenges the special conditions imposed on the term

of supervised release, arguing the court improperly delegated

its   authority   to   the   probation      officer   and      that   the   written

judgment     is   inconsistent      with     the   district       court’s       oral

pronouncement.     We address each argument in turn.

           The written judgment, in pertinent part, provided for

the following special conditions:

           While on supervised release, the defendant:

      (3) Must participate in a program of testing and
      treatment for substance abuse as directed by the
      probation officer, until such time as the defendant is
      released from the program by the officer;

      (4) Must participate in a program of testing of
      mental health treatment as directed by the probation
      officer, until such time as the defendant is released
      from the program by the officer;

      (5) Must     allow    the   probation   officer    open
      communication    with   mental   health  and    medical
      professionals to obtain information on defendant’s
      condition.




                                        2
              This   court     generally          reviews     special    conditions     of

supervised release for an abuse of discretion.                       United States v.

Dotson, 324 F.3d 256, 259 (4th Cir. 2003).                          To the extent the

contested special condition was imposed by the court during its

oral pronouncement at sentencing, because Miller did not object

to the imposition of the special condition at that time, this

court   reviews      for     plain    error.         United    States    v.    Rodriguez-

Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006).                       To meet the plain

error standard: (1) there must be an error; (2) the error must

be   plain;    and     (3)   the     error    must    affect     substantial        rights.

United States v. Olano, 507 U.S. 725, 732-34 (1993).                                If the

three elements of the plain error standard are met, this court

may exercise its discretion to notice the error only if the

error   seriously       affects       “the    fairness,       integrity,       or    public

reputation     of    judicial        proceedings.”            Id.   at   736    (citation

omitted).

              Miller     first       argues    the    district      court      improperly

delegated a core judicial function to the probation officer in

imposing special conditions #3 and #4.                      Probation officers serve

under the discretion of the district court and are authorized to

manage aspects of sentences and to supervise probationers and

persons on supervised release with respect to all conditions

imposed by the court.              United States v. Johnson, 48 F.3d 806,

808 (4th Cir. 1995).               It is well established, however, that a

                                              3
court   may    not          delegate      a    judicial        function        to    a       probation

officer, as such delegation would violate Article III of the

United States Constitution.                     See id. at 808-09.                  Determination

of   whether        a    court      has       improperly          delegated         the      judicial

authority of sentencing is based on distinguishing between the

delegation     to       a    probation        officer        of   “a     ministerial           act    or

support service” and the “ultimate responsibility” of imposing

sentence.      See United States v. Bernardine, 237 F.3d 1279, 1283

(11th Cir. 2001).

              Specifically, Miller argues that special condition #4,

that he “participate in a program of testing of mental health

treatment as directed by the probation officer, until such time

as the defendant is released from the program by the officer,”

improperly      delegated           to        the       probation        officer             decisions

regarding      the       nature,       quantity,         and      termination         for      mental

health testing and treatment.                    Similarly, he argues that special

condition      #3       improperly        delegates          to    the    probation           officer

decisions     regarding          the    nature,         quantity,        and    termination          of

substance      abuse         treatment.          We      first      consider         whether         the

district    court        improperly           delegated      to    the    probation           officer

decisions regarding Miller’s substance abuse and mental health

treatment.

              Requiring         a   defendant           to   participate        in       a    drug    or

mental health treatment program as a condition of supervised

                                                    4
release is indisputably a judicial function.                        Delegating to the

probation officer the authority to decide whether a defendant

will    participate      in    a   treatment    program        is    a   violation     of

Article III.      See United States v. Peterson, 248 F.3d 79, 85 (2d

Cir. 2001) (“If [the defendant] is required to participate in a

mental health intervention only if directed to do so by his

probation officer, then this special condition constitutes an

impermissible delegation of judicial authority to the probation

officer.”); see also United States v. Pruden, 398 F.3d 241, 251

(3d    Cir.   2005)     (expressing      agreement      with    Peterson);          United

States v. Allen, 312 F.3d 512, 515-16 (1st Cir. 2002) (same);

United States v. Sines, 303 F.3d 793, 799 (7th Cir. 2002) (“[A]

district      court . . . must       itself     impose    the       actual    condition

requiring participation in a sex offender treatment program.”);

United   States    v.     Kent,    209   F.3d   1073,    1079        (8th    Cir.   2000)

(finding “that the lower court improperly delegated a judicial

function to [the defendant’s] probation officer when it allowed

the officer to determine whether [the defendant] would undergo

counseling”).

              Courts, however, are also generally agreed that “where

the court makes the determination of whether a defendant must

abide by a condition, and how (or, when the condition involves a

specific act such as drug testing, how many times) a defendant

will    be    subjected       to   the   condition,      it    is     permissible      to

                                           5
delegate to the probation officer the details of where and when

the condition will be satisfied.”                   United States v. Stephens,

424   F.3d   876,     880   (9th     Cir.       2005).   Hence,       conditions     of

supervised release that unequivocally impose a requirement on

the defendant, but subject the defendant to the “approval” or

“direction” of a probation officer are permissible.                          See United

States v. Kerr, 472 F.3d 517, 523-24 (8th Cir. 2006) (finding no

impermissible delegation to probation officer where the district

court made no indication it was relinquishing final authority

over defendant’s treatment); United States v. Zinn, 321 F.3d

1084, 1092 (11th Cir. 2003) (finding no plain error in imposing

condition that required defendant to participate as directed in

a program of mental health treatment approved by the probation

officer);      see      also      U.S.      Sentencing         Guidelines        Manual

§ 5D1.3(d)(5)        (recommending,         when     district        court     believes

defendant is in need of psychological or psychiatric treatment,

a special condition requiring the defendant participate in a

mental health program approved by the Probation Office); United

States v. Nash, 438 F.3d 1302, 1306 (11th Cir. 2006) (finding

improper delegation where court imposed condition of supervised

release    that    stated,     “as    deemed       necessary    by    the     Probation

Officer,     the     defendant     shall        participate     in    mental     health

counseling”)(emphasis            omitted)(internal            citation        omitted);

United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005)

                                            6
(finding plain error in imposition of condition that “defendant

shall participate if and as directed by the probation office in

such mental health programs as recommended by a psychiatrist or

psychologist”).

              In this case, the special conditions at issue state in

pertinent     part     that     Miller    must    participate      in   a     program    of

substance abuse and mental health treatment as directed by the

probation officer.             It is clear to us that the district court

made the determination that Miller must participate in substance

abuse   and     mental        health    treatment      programs.         We    find     the

“directed       by”    language        imposed    upon    the   probation        officer

nothing     more       than     an      assignment       of   ministerial        duties.

Similarly,      to     the     extent    Miller     challenges       the      unspecified

nature of the treatment ordered and the subsequent language in

the condition that states that Miller must receive treatment

until “released from the program by the officer,” this language

is   consistent        with     permissible      delegation     to      the    probation

officer    of    the    ministerial       duty    of   ensuring      the      defendant’s

successful completion of a treatment program and subjecting the

defendant     to      the    administrative      supervision      of    the     probation

officer.      See United States v. Rearden, 349 F.3d 608, 619 (9th

Cir. 2003) (finding delegating authority to probation officer to

select type and extent of treatment for sex offender was not

improper); Peterson, 248 F.3d at 85 (finding no impermissible

                                            7
delegation where the district court intended nothing more than

to delegate to the probation officer the details of the therapy,

including selection of provider and schedule of treatment).                  We

therefore find the district court did not commit plain error in

imposing   the   special     conditions     requiring   Miller    to    undergo

substance abuse and mental health treatment programs as directed

by the probation officer.

           Miller also argues on appeal that the district court’s

written judgment was not consistent with its oral pronouncement

with respect to the special conditions of supervised release.

Specifically, Miller argues that, unlike the oral judgment, the

written judgment (1) imposes the requirement that Miller allow

the probation officer access to “open information” from Miller’s

mental health providers (special condition #5); (2) imposes a

vague “testing” condition in addition to mental health treatment

(special   condition     #4);   and   (3)    includes    the    language     “as

directed by the probation officer . . . until released from the

program by the officer” (special condition #3).

           Under Fed. R. Crim. P. 36, “[a]fter giving any notice

it considers appropriate, the court may at any time correct a

clerical   error    in   a   judgment,    order,   or   other    part   of   the

record, or correct an error in the record arising from oversight

or omission.”      A district court’s unambiguous oral pronouncement

at sentencing is not negated by a subsequent written judgment

                                      8
that does not reflect the oral sentence.                        See Rakes v. United

States,     309    F.2d      686,     687-88     (4th    Cir.      1962)     (addressing

correction under Rule 35).              A court “should carry out the true

intention of the sentencing judge as this may be gathered from

what he said at the time of sentencing.”                            United States v.

Morse, 344 F.2d 27, 30 (4th Cir. 1965).                    It is normally the rule

that,   where     a    conflict       exists     between      an    orally   pronounced

sentence    and       the    written    judgment,       the     oral    sentence      will

control.     United States v. Osborne, 345 F.3d 281, 283 n.1 (4th

Cir. 2003).       The remedy is to vacate the judgment and remand to

the district court for the purpose of correcting the written

judgment to conform to the oral sentence.                          Morse, 344 F.2d at

30-31 & n.1; Rakes, 309 F.2d at 687-88.

            At the conclusion of the hearing, the district court

ordered that Miller “participate in a program of testing and

treatment for substance abuse, and a program of mental health

treatment    as    directed      by    the     probation      officer      until    he   is

released    from       the    program    by      the    officer.”          The     written

judgment, however, specifically requires as a special condition

of supervised release that Miller participate “in a program of

testing of mental health treatment as directed by the probation

officer.” (emphasis added).             At face value, the written judgment

potentially allows the probation officer to subject Miller to

undesignated mental health testing.                 See United States v. White,

                                             9
244   F.3d    1199,     1207    (10th    Cir.    2001)      (remanding        to   district

court where special condition in written judgment, unlike oral

pronouncement,        subjected    defendant          to    potential     physiological

testing as approved by the probation office); see also United

States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) (requiring

district court to direct the specific number of drug tests to

which   the       defendants     would     be    subject       while     on    supervised

release).      The Government appears to argue, by adding a “[sic]”

notation     after      the    words    “of     testing”,      that     the    error     was

clerical in the written judgment.                     In any event, there is no

factual basis in the transcript from which one can deduce that

the district court intended to allow the probation officer to

subject the defendant to undesignated mental health testing.                             We

therefore     vacate      the    judgment       and    remand     the     case      to   the

district court for the district court to correct this condition

of supervised release to conform to the oral pronouncement.

             As    to    the    remaining       two    conditions        challenged       by

Miller, we find no relief is warranted.                        With respect to the

language     in    special     condition      #3,     i.e.,    “as    directed      by   the

probation officer,” as discussed above, such language does not

constitute an improper delegation of judicial authority to the

probation     officer.          Furthermore,          the     language    is       entirely

consistent with the district court’s oral pronouncement as the

written judgment reflects that the court intended the probation

                                           10
officer     direct    both      Miller’s            participation      in    testing       and

treatment for substance abuse and a program of mental health

treatment.         Although      Miller        correctly         points     out    that    the

condition    that    he    allow     his       probation         officer    to     have   open

communication with mental health and medical professionals to

obtain information on Miller’s condition was not specifically

stated at sentencing, such information is implicitly necessary

for   the   probation      officer        to    evaluate         Miller’s    progress       and

therefore    the     written      judgment           is    “simply    a     more    specific

rendering of the pronouncement at the hearing.”                             United States

v. Sines, 303 F.3d 793, 799 (7th Cir. 2002).

            Accordingly,        we   vacate          and   remand    Miller’s       sentence

for   the   district      court      to    correct         its    written     judgment       to

conform to its oral pronouncement with regard to mental health

testing,    leaving       the    remaining           conditions      undisturbed.           We

dispense     with    oral       argument        because       the    facts        and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                   VACATED AND REMANDED




                                               11
