                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-13664                  FEBRUARY 3, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                    D. C. Docket No. 04-00112-CR-3-LAC

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

MICKEY L. SKYLES,

                                                        Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                              (February 3, 2006)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Mickey L. Skyles appeals his sentence for convictions of driving under the
influence and leaving the scene of an accident with injuries on federal park land,

pursuant to 18 U.S.C. §§ 7 and 13, and Fla. Stat. § 316.193 and § 316.027. At

sentencing, the district court ordered two special conditions of supervised release

that gave the probation office the discretion to require drug or alcohol treatment

and/or to require mental health counseling and treatment. On appeal, Skyles argues

that the district court committed plain error by delegating a judicial function to the

probation officer, specifically, the decision of whether Skyles would participate in

the treatment programs. Skyles points out that in United States v. Heath, 419 F.3d

1312 (11th Cir. 2005), we held that this precise action was plain error. The

government concedes that there was plain error regarding this issue.

      When an issue was not raised before the district court, we review for plain

error. Heath, 419 F.3d at 1314. Plain error exists if there was “(1) error, (2) that is

plain, and (3) affects substantial rights. If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations and citation omitted). To show that the error affected

substantial rights, a defendant must show that the error “affected the outcome of

the district court proceedings.” Id. (quotation omitted). A violation of Article III

of the United States Constitution seriously affects the “fairness, integrity, or public



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reputation of judicial proceedings.” Id.

      In Heath, we held that leaving the decision of whether a defendant will

participate in a mental health treatment program to a probation officer is plain

error. Id. at 1315. We noted that the error was plain because it was clear under

then-current law. Id. We stated that, in previous cases, this Court has held that

delegating a judicial function is a violation of Article III of the U.S. Constitution.

Id. (citing United States v. Prouty, 303 F.3d 1249, 1255 (11th Cir. 2002)). Also,

we pointed out that all the circuits are in agreement that delegating to a probation

office the authority to decide whether a defendant will participate in a treatment

program is a delegation of judicial function, and therefore, a violation of Article III

of the U.S. Constitution. Id. at 1315. We held that without the error in delegating

the treatment decision, the district court would have decided whether the defendant

needed treatment and incorporated that decision into his sentence. Id. at 1316.

Therefore, delegating the treatment decision to a probation office affected

substantial rights. Id. Lastly, we held that the violation of Article III in this

context meets the fourth prong of plain error analysis. Id.

      In this case, Heath is controlling. Imposing the treatment conditions on

Skyles was plain error that affected substantial rights and seriously affected the

fairness of the judicial proceedings. We vacate and remand Skyles’s sentence for



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the limited purpose of correcting the delegation of treatment programs to the

discretion of the probation office.

      VACATED AND REMANDED FOR RESENTENCING.




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