     Case: 09-41204 Document: 00511281042 Page: 1 Date Filed: 11/01/2010




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

                                                 FILED
                                                                          November 1, 2010

                                       No. 09-41204                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

DOMINGO TORRES-PINDAN, also known as Domingo Torres-Pineda,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas


Before D EMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Domingo Torres-Pindan (Torres) pleaded guilty to one count of unlawfully
transporting illegal aliens within the United States. The district court sentenced
Torres to 27 months imprisonment and three years supervised release. The
district court imposed several “special conditions” of supervised release,
including: (i) drug surveillance (i.e., drug testing in addition to the mandatory
drug testing under 18 U.S.C. § 3583(d)) “as directed by the probation officer;”
and (ii) participation in a mental health program “as deemed necessary and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41204

approved by the probation officer.” Torres argues that the district court erred
by imposing the additional drug testing special condition because the condition
is not “reasonably related” to the sentencing factors of § 3553(a) and it involves
a “greater deprivation of liberty than is reasonably necessary.” See United
States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (citation omitted). Torres
also argues that the district court erred by impermissibly delegating its judicial
authority to the probation officer.
      Generally, our review of the district court’s determination of supervised
release conditions is for abuse of discretion. See id. at 165. However, because
Torres failed to object to the special conditions when they were pronounced at
sentencing, we review for plain error.1 See United States v. Weatherton, 567 F.3d
149, 152 (5th Cir.), cert. denied, 130 S. Ct. 300 (2009). To demonstrate plain
error, Torres must show an error that is clear or obvious under our existing law
and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009); United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010).
If Torres makes such a showing, we have discretion to correct the error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Puckett, 129 S. Ct. at 1429 (internal marks and citation omitted).
      We must first determine whether the district court committed plain error
in imposing the additional drug testing special condition. A district court has
wide discretion to impose conditions of supervised release, limited by § 3583(d).
See Paul, 274 F.3d at 164–65. A district court “can require participation in a
substance abuse program if it has reason to believe that the defendant abuses
controlled substances.” United States v. Cothran, 302 F.3d 279, 290 (5th Cir.
2002) (citations omitted); see United States v. Gayford, No. 09-10683, 2010 WL
2332088, at *2 (5th Cir. June 7, 2010) (unpublished). The additional drug


      1
          Torres concedes that the plain error standard of review applies.

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                                   No. 09-41204

testing imposed in this case is less onerous than imposing participation in a drug
abuse treatment program. Torres admits in the presentence investigation report
(PSR) that he has used both alcohol and two controlled substances (marijuana
and cocaine) in his past, and the district court explicitly adopted the PSR as its
findings. See Cothran, 302 F.3d at 290. Moreover, the condition is also in
furtherance of the mandatory drug testing condition required by Congress. See
§ 3583(d). Because Torres cannot point to any existing Fifth Circuit case holding
that a district court erred in imposing additional drug testing as a special
condition of supervised release, if there is error in this case, it is not plain.
      We next determine whether the district court committed plain error by
impermissibly delegating its judicial authority by imposing (i) the additional
drug testing special condition “as directed by the probation officer,” and (ii) the
mental health special condition “as deemed necessary and approved by the
probation officer.” A district court may not “abdicate[] its judicial responsibility,”
but it may impose special conditions of supervised release “which require the
prior approval of a probation officer.” United States v. Rodriguez, 558 F.3d 408,
415 (5th Cir. 2009). “Probation officers have broad statutory authority to advise
and supervise persons on supervised release to improve the releasees’ conduct
and lives, and to ‘perform any other duty that the court may designate.’” Id. at
414–15 (citing 18 U.S.C. §§ 3601, 3603(3), (10)).
      We considered the exact delegation language used in the mental health
special condition in Bishop. See 603 F.3d at 280 (the defendant shall “participate
in a mental health program as deemed necessary and approved by the probation
officer” (internal marks omitted)).        In Bishop, we stated that we have
“consistently held that such judicial delegations of authority regarding
counseling do not rise to the level of plain error.” Id. at 281 & n.8 (citing five
unpublished cases holding that it is not plain error to delegate whether and to
what extent the defendant should participate in counseling). Because Torres

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                                   No. 09-41204

cannot point to any existing Fifth Circuit case contradicting Bishop, if there is
error in this case, it is not plain. See United States v. Turpin, No. 09-40642,
2010 WL 3377231, at *1 (5th Cir. Aug. 25, 2010) (unpublished) (identifying a
circuit split on the delegation issue and noting that the Fifth Circuit “has not yet
decided whether it is permissible for a court to delegate to a probation officer the
determination of whether mental health treatment will be required as part of
supervised release”).
      With respect to the additional drug testing delegation language, Torres
cannot point to any existing Fifth Circuit case, nor have we found one, holding
that a district court erred in imposing additional drug testing “as directed by the
probation officer.” Therefore, if there is error in this case, it is not plain.
AFFIRMED.




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