                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               May 24, 2006
                             No. 04-16543                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                     D. C. Docket No. 04-00011-CR-6

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

NAKAYUN HOLSEY,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                              (May 24, 2006)



Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Nakayun Holsey appeals a special condition of the supervised release

imposed following his guilty plea to possession of crack cocaine with intent to

distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon,

18 U.S.C. § 922(g)(1). The district court imposed as a special condition of

supervised release that “if the probation officer determines it is necessary, the

defendant shall participate in a program of treatment of drug and alcohol abuse as

directed by the probation officer.” Holsey asserts the district court plainly erred by

improperly delegating its judicial function by leaving to the probation officer the

determination of whether Holsey was required to participate in a substance abuse

treatment program during his term of supervised release.

      We review issues raised for the first time on appeal for plain error. United

States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005). Under the plain error test,

before we can correct an error not raised in the district court, there must be error,

that is plain, and that affects substantial rights. Id. If all three conditions are met,

we may then exercise our discretion to notice a forfeited error, but only if the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id. Under Article III of the United States Constitution, a district court may not

delegate to the probation officer the authority to make the ultimate decision of

whether a defendant must participate in a treatment program. Id. at 1315.



                                            2
      The Government concedes the delegation was improper under Heath. We

agree. The district court’s delegation was in error, and the error was plain. See id.

Holsey meets the burden of showing the error affected his substantial rights

because his sentence would have been different but for the error. Absent the error,

the district court would have decided whether Holsey had to participate in a

substance abuse program, and that decision would have been incorporated into

Holsey’s sentence. See id. at 1316. Finally, a violation of Article III through an

improper delegation of judicial function meets the requirement that the error

seriously affect the fairness, integrity, or public reputation of judicial proceedings.

See id.

      The district court plainly erred by delegating the decision of whether Holsey

must participate in drug and alcohol abuse treatment to the probation officer.

Accordingly, we vacate this term of Holsey’s supervised release and remand for

proceedings consistent with this opinion.

      VACATED AND REMANDED .




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