     Case: 15-50850      Document: 00513765153         Page: 1    Date Filed: 11/18/2016




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

                                    No. 15-50850                                    FILED
                                  Summary Calendar                          November 18, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RYAN BRADLEY PITTS, also known as Ryan B. Pitts,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-907-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Ryan Bradley Pitts pleaded guilty to six counts of production of child
pornography pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea
agreement limiting his sentence to no more than 60 years of imprisonment.
The district court accepted the plea agreement and sentenced Pitts to 60 years
of imprisonment and a lifetime of supervised release.                 The district court
imposed conditions of supervised release including Additional Condition Two:


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50850

“The defendant shall follow all other lifestyle restrictions or treatment
requirements imposed by the therapist, and continue those restrictions as they
pertain to avoiding risk situations throughout the course of supervision.”
      Pitts now challenges Additional Condition Two as an impermissible
delegation of judicial sentencing authority to a non-judicial officer. Because he
did not object to this condition, we review for plain error. United States v.
Prieto, 801 F.3d 547, 549 (5th Cir. 2015).        To demonstrate plain error, a
defendant must show an error that is clear or obvious and affects his
substantial rights. See id. at 549-50. If the defendant can satisfy those prongs,
this court has discretion “to remedy the error—discretion which ought to be
exercised only if the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 550 (alteration omitted) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)).
      Our recent opinion in United States v. Morin resolved a delegation
challenge to an identical supervised release condition. See 832 F.3d 513, 515
(5th Cir. 2016). In Morin, we vacated that supervised release condition as “an
improper delegation of judicial authority.” See id. at 516-18. 1 Accordingly,
Morin establishes that Additional Condition Two is improper and satisfies the
first plain-error prong in this case. See id. at 517-18.
      Although Morin did not review for plain error, we nonetheless conclude
that its reasoning compels the outcome of this appeal. As to the second prong,
the error is now clear or obvious because Morin was decided during the
pendency of this appeal. See United States v. Hornyak, 805 F.3d 196, 199 (5th
Cir. 2015).




      1 Morin also rejected the same ripeness argument made by the Government in this
case. See id. at 515-16. Accordingly, Pitts’s appeal is ripe.


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                                 No. 15-50850

      As to the third plain-error prong, Morin confirms that Additional
Condition Two “is not, as the Government suggests, simply coextensive with”
other permissible conditions requiring compliance with treatment programs.
See 832 F.3d at 518. We therefore conclude that Pitts’s substantial rights were
affected by the erroneous delegation “to a therapist the authority to impose,
without court review, independent conditions of supervised release . . . that
could serve as the basis for violations of the terms of supervised release
separate and apart from non-compliance with the treatment program.” See id.
at 517; accord United States v. Albro, 32 F.3d 173, 174 n.1 (5th Cir. 1994).
      As to the fourth plain-error prong, Morin cautions that “preserving the
judiciary’s exclusive authority to impose sentences is an area in which it is
important for courts to be vigilant.” 832 F.3d at 518. Exercising our discretion
to correct the error under these circumstances is consistent with that vigilance.
See Prieto, 801 F.3d at 550; Albro, 32 F.3d at 174 n.1. Accordingly, Pitts has
satisfied the requirements of plain-error review.
      For the foregoing reasons, we VACATE Additional Condition Two and
REMAND to the district court for further proceedings consistent with this
opinion.




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