     Case: 16-40321      Document: 00513791742         Page: 1    Date Filed: 12/09/2016




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

                                      No. 16-40321
                                                                                Fifth Circuit

                                                                              FILED
                                                                       December 9, 2016

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

MAYRA ALEJANDRA ALANIZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-589-1


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Mayra Alejandra Alaniz pleaded guilty to
possession with intent to distribute heroin. She appeals the mental health
program special condition of her supervised release.               Because the special
condition was an improper delegation of discretion to the probation officer, we
VACATE the special condition and REMAND to the district court for
resentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40321
                                        I
      After she pleaded guilty without a written plea agreement, Alaniz told
the probation officer that in 2007 she had been diagnosed with bipolar disorder,
depression, and anxiety, and had a history of drug and alcohol abuse. Alaniz
filed her medical records with the court.
      The probation officer determined that Alaniz faced a mandatory
minimum sentence of ten years of imprisonment and a guidelines range of 151
to 188 months, which was based on her total offense level of 31 and a criminal
history category of IV.   The Government moved for a reduced sentence below
the mandatory minimum sentence pursuant to U.S.S.G. § 5K1.1, such that
Alaniz’s guidelines range would be 100 to 125 months of imprisonment.
Defense counsel referred to Alaniz’s medical records and her history of mental
illness and asked the court “to recommend drug treatment and any other
treatment that she qualifies for so that when she comes out she’s ready to
reenter society as a successful citizen and not with the same type of problems
that led her down this road.”
      The district court granted the Government’s § 5K1.1 motion and
sentenced Alaniz to 112 months. The district court also imposed a five-year
term of supervised release, stating that Alaniz was “requested to participate in
a mental health program as deemed necessary and approved by the probation
officer and will incur the costs associated with same based on her ability to pay
as determined by the probation office.” (emphasis added). Alaniz did not
object.   The district court’s written judgment of conviction and sentence,
however, stated that Alaniz was “required” to participate in a mental health
program. Alaniz timely appealed.
                                       II
      When a district court’s written judgment conflicts with its oral
pronouncement of the sentence, the oral pronouncement controls.          United
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                                  No. 16-40321
States v. Torres–Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). We normally
review for abuse of discretion the imposition of a special condition of supervised
release.   United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).
However, because Alaniz failed to object to the special condition at sentencing,
we review for plain error. See, e.g., United States v. Bishop, 603 F.3d 279, 280
(5th Cir. 2010); United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
      For reversible plain error, a defendant must show a clear or obvious error
that affects her substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If she does so, our court has discretion to correct that error, and
generally will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      We conclude that the district court committed plain error in improperly
delegating authority to the probation officer. While probation officers have
broad power “to manage aspects of sentences and to supervise probationers
and persons on supervised release with respect to all conditions imposed by the
court,” those powers are limited by Article III of the United States
Constitution. United States v. Franklin, 838 F.3d 564, 567-68 (5th Cir. 2016)
(quoting United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995)). “The
imposition of a sentence, including the terms and conditions of supervised
release, is a core judicial function that cannot be delegated.” Id. at 568 (quoting
United States v. Lomas, 643 F. App’x. 319, 324 (2016)) (internal quotations
omitted). While “a district court may properly delegate to a probation officer
decisions as to the ‘details’ of a condition of supervised release[,] . . . a court
impermissibly delegates judicial authority when it gives a probation officer
‘authority to decide whether a defendant will participate in a treatment
program.’” Id. (internal citations omitted). In this case, the district court’s
oral pronouncement “creates an ambiguity regarding whether the district
court intended to delegate authority not only to implement treatment but to
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decide whether treatment was needed.” Id. at 568 (quoting United States v.
Calhoun, 471 Fed. Appx. 322, 323 (5th Cir. 2012)). This error is clear and
obvious and affects Alaniz’s substantial rights. See United States v. Gordon,
838 F.3d 597, 605 (5th Cir. 2016) (erroneous imposition of a mental health
program special condition substantially affected a defendant’s rights)).
Because such an error involves “core judicial functions,” see Franklin, 838 F.3d
at 568, we find the exercise of this court's discretion to correct the error is
warranted under these circumstances. See United States v. Olano, 507 U.S.
725, 736 (1993) (“The Court of Appeals should correct a plain forfeited error
affecting substantial rights if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’”).
                                        III
      For the aforementioned reasons, we VACATE the mental health
program special condition and REMAND to the district court for resentencing,
with the same clarifying instruction we offered in Franklin. Id. at 568 (quoting
United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)):
      If the district court intends that the therapy be mandatory but
      leaves a variety of details, including the selection of a therapy
      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
      therapy to the discretion of the probation officer, such a condition
      would constitute an impermissible delegation of judicial authority
      and should not be included.




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