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

                                                                            FILED
                                                                        December 23, 2008
                                     No. 08-20301
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DANIEL LOMAS, III

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:07-CR-497


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Daniel Lomas, III was convicted of one count of conspiracy to conceal and
transport illegal aliens for the purpose of commercial advantage and private
financial gain, and was sentenced to serve 24 months in prison and a three-year
term of supervised release.          Lomas challenges a special condition of his
supervised release in this appeal. He specifically argues that the district court
reversibly erred by delegating to the probation officer the authority to decide
whether he should undergo mental health treatment. We AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-20301

      Because Lomas’s argument was not presented to the district court, we may
review the issue only for plain error. See United States v. Wright, 86 F.3d 64, 65
(5th Cir. 1996). This sentencing issue was recently presented to another panel
of this court, and there we found no plain error. United States v. Mungia, No.
08-40056, 2008 WL 4622544, at *2 (5th Cir. Oct. 20, 2008) (unpublished). We
now review why that is the proper result when there was no objection to this
particular provision at sentencing.
      The relevant statutory provision states that “[t]he court may provide” that
a defendant undergo treatment; such treatment must be “as specified by the
court.” 18 U.S.C. § 3563(b)(9). This language, Lomas argues, precludes having
treatment be that “deemed necessary and approved by the probation officer.”
Lomas also asserts that permitting the probation officer such discretion is an
unconstitutional delegation of Article III judicial authority.
      Other circuits have agreed an improper delegation occurs in similar cases.
The Eleventh Circuit has found that an impermissible delegation of judicial
authority occurs when a court gives “the probation officer the authority to decide
whether a defendant will participate in a treatment program,” as opposed to
authority over the implementation of the treatment. United States v. Heath, 419
F.3d 1312, 1315 (11th Cir. 2005); see also United States v. Pruden, 398 F.3d 241,
250-51 (3d Cir. 2005) (mental health treatment); United States v. Peterson, 248
F.3d 79, 85 (2d Cir. 2001); United States v. Kent, 209 F.3d 1073, 1078-79 (8th
Cir. 2000) (mental health treatment); United States v. Figuereo, 404 F.3d 537,
542-43 (1st Cir. 2005) (drug testing); United States v. Stephens, 424 F.3d 876,
882-84 (9th Cir. 2005) (drug testing); United States v. Sines, 303 F.3d 793, 799
(7th Cir. 2002) (sex-offender treatment). One of our sister circuits concluded
that every circuit court to review a sentence that gave to a probation officer the
authority to decide whether a defendant will participate in a treatment program
found it unconstitutional. Heath, 419 F.3d at 1315.



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                                  No. 08-20301

      Nonetheless, given the plain error context, this appeal is an unsuitable
vehicle for us to resolve the issue.        No Fifth Circuit or Supreme Court
jurisprudence supports Lomas’s claim. We ordinarily do not find plain error
when we “have not previously addressed” an issue. United States v. Vega, 332
F.3d 849, 852 n.3 (5th Cir. 2003). If an argument requires the extension of
authoritative precedent, the failure of the district court to do so cannot be plain
error. United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).
      We thus look for whether there is authoritative precedent. The principal
related Fifth Circuit precedent reviewed a sentence that had granted to a
probation officer the determination of whether a defendant had the ability to pay
for drug and alcohol treatments. United States v. Warden, 291 F.3d 363, 365-66
(5th Cir. 2002). We found that this determination of financial ability was similar
to other fact-finding that a probation officer was allowed to make. Id. at 366
(citing U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(c)(15) (2000) (defendants
may be required to notify the probation officer “of any material change in the
defendant’s economic circumstances that might affect the defendant’s ability to
pay any unpaid amount of restitution, fines, or special assessments”)).
Distinguished in Warden was a precedent in which we held that a probation
officer could not be given the discretion to determine the “amount and manner”
of restitution payments, as that was a matter entrusted to the sentencing judge.
United States v. Albro, 32 F.3d 173 (5th Cir. 1994).
      No clear authority prohibited the sentence. Adapting Albro’s holding to
the mental treatment provision would be an extension of precedent. Failure to
recognize such an extension was not plain error.       Any error here was not so
plain that “the trial judge and prosecutor were derelict in countenancing it, even
absent the defendant’s timely assistance in detecting it.” United States v. Frady,
456 U.S. 152, 163 (1982). The judgment of the district court is AFFIRMED.




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