     Case: 16-40999      Document: 00514212404         Page: 1    Date Filed: 10/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-40999                                   FILED
                                  Summary Calendar                          October 26, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS CLIFFORD LOVETTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-951-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Thomas Clifford Lovette pleaded guilty to one count of making false
statements on a matter within the jurisdiction of an agency of the United
States in violation of 18 U.S.C. § 1001. After serving his prison term and while
on supervised release, the probation office filed a warrant petition, alleging
that Lovette violated the terms of his supervised release. Lovette pleaded true
to the allegations and was sentenced to six months of imprisonment and 30


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40999    Document: 00514212404     Page: 2   Date Filed: 10/26/2017


                                 No. 16-40999

months of supervised release. In its oral pronouncement of Lovette’s sentence,
the district court ordered Lovette “to participate in a mental health treatment
program.” Lovette did not object. The written judgment provided that Lovette
“is required to participate in a mental health program as deemed necessary and
approved by the probation officer.” (emphasis added).
      In this court, Lovette does not challenge the order to participate in a
mental health treatment program. He challenges the condition of supervised
release only as an impermissible delegation to the probation officer of the
district court’s responsibility to determine whether he must participate in
mental health treatment. Because Lovette did not have an opportunity to
object at sentencing to the part of the condition of supervised release that
mentioned the probation officer’s role, our review is for an abuse of discretion.
See United States v. Franklin, 838 F.3d 564, 566-67 (5th Cir. 2016).
      The imposition of supervised release conditions and terms “is a core
judicial function that cannot be delegated.” Franklin, 838 F.3d at 568 (internal
quotation marks and citations omitted). A district court may delegate details
of a treatment-related condition to a probation officer, but it may not give “a
probation officer authority to decide whether a defendant will participate in a
treatment program.” Id. (internal quotation marks and citations omitted;
emphasis in original). In Franklin, we vacated a mental health treatment
condition materially identical to the condition set forth in the written judgment
here. Id. at 567-68. We held that the wording of the challenged condition
“create[d] an ambiguity regarding whether the district court intended to
delegate authority not only to implement treatment but to decide whether
treatment was needed.” Id. at 568. There is a similar ambiguity in this case
as to whether or not the district court sought to delegate authority to the
probation officer “to decide whether treatment [is] needed.” Id.



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                                 No. 16-40999

      Because the record makes clear that mental health treatment is
warranted, and the only issue is whether the district court intended to give
discretion to the probation officer as to the necessity for treatment, 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:
      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.
838 F.3d at 568 (internal quotation marks and citation omitted).




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