17-3442
United States v. Mario Herrera
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve
a copy of it on any party not represented by counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 25th day of January, two thousand nineteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         PETER W. HALL
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                                 v.                                   No. 17-3442

MARIO HERRERA,

                                 Defendant-Appellant,

JOHN MIRANDA, JOEL CASADO, AKA COJO, CESAR
DOMINGUEZ, JOEL QUEZADA, AKA J-BUFF,
JONATHAN MORALES, AKA BLOOD, OLIVEROS
VILLAREAL, THOMAS ABREU, JONATHAN
GOLDEN, JOHNNY, CYNTHIA URRA, DEBRA
MONCHE, EZEQUIL NIN, AKA SEKI, ANDREW
SEIBERT, AKA BLUE, CARLOS ALVAREZ-
GONZALEZ, AKA POPS, KEITH WOODARDS,
ALEXANDER CARNO, KEVIN SKEETE,

                     Defendants.
____________________________________________

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For Appellee:                          Jason A. Richman, Gina Castellano, Jordan Estes, Karl
                                       Metzner, Assistant United States Attorneys, for Geoffrey S.
                                       Berman, United States Attorney for the Southern District of
                                       New York, New York, NY.

For Defendant-Appellant:               John A. Kuchera, Waco, TX.


       Appeal from a judgment of conviction of the United States District Court for the

Southern District of New York (Preska, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Mario Herrera appeals from a judgment of the United States District Court for

the Southern District of New York (Preska, J.) following a guilty plea. Herrera challenges the

district court’s imposition of the special condition of supervised release that he “shall participate

in an outpatient substance abuse program approved by the United States Probation Office, which

program may include testing to determine whether the defendant has reverted to using drugs or

alcohol.” App. 34. We assume the parties’ familiarity with the underlying facts and the

procedural history of the case.

       We review the imposition of a special condition of supervised release for abuse of

discretion. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001) (per curiam).1 But because

Herrera did not object to the special condition, which was contained in his Presentence Report,

our review is for plain error. United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003); see also

Fed. R. Crim. P. 52(b).




       1
         Unless otherwise indicated, case quotations omit all internal quotation marks,
alterations, footnotes, and citations.


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        The power to impose special conditions of supervised release is vested exclusively in the

district court. 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b)-(e). A district court may delegate to a

probation officer decision-making authority over certain minor details of supervised release.

Peterson, 248 F.3d at 85. However, “a district court may not delegate to the Probation

Department decisionmaking authority which would make a defendant’s liberty itself contingent

on a probation officer’s exercise of discretion.” United States v. Matta, 777 F.3d 116, 122 (2d

Cir. 2015). “In other words, the extensive supervision mission of federal probation officers

includes executing the sentence, but not imposing it.” Id.

        The district court did not impermissibly delegate its judicial authority to the Probation

Office. The district court did not require Herrera to participate in an outpatient substance abuse

program “as directed by the U.S. Probation Office.” Peterson, 248 F.3d at 85. Rather, the

condition clearly mandates that Herrera “shall participate in an outpatient substance abuse

program . . . .” App. 34 (emphasis added).2 The Probation Office was given the discretion to

“approve[]” the specific program. Id. Thus, the district court “intend[ed] that the [treatment] be

mandatory but le[ft] . . . the selection of a . . . provider . . . to the probation officer.” Peterson,

248 F.3d at 85.

        Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




        Nor did the district court impermissibly delegate to the Probation Office the authority to
        2

administer drug testing as a component of Herrera’s treatment program, as a district court “may
authorize the Probation office to approve and oversee the details of [outpatient] treatment.”
United States v. Young, 910 F.3d 665, 675 (2d Cir. 2018).

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