     Case: 16-11654      Document: 00514196594         Page: 1    Date Filed: 10/16/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-11654                                  FILED
                                  Summary Calendar                         October 16, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SEBASTIAN GUTIERREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-155-1


Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Sebastian Gutierrez pleaded guilty to one count of possessing child
pornography, and he received a sentence of 78 months in prison, to be followed
by a 15-year term of supervised release. On appeal, he challenges only a
special condition of supervised release.            The district court ordered that
Gutierrez “shall participate in sex-offender treatment services as directed by
the probation officer until successfully discharged.” Gutierrez now argues that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11654

this special condition impermissibly delegates a judicial function to the
probation officer and to the treating therapist.
      Because Gutierrez did not object to the imposition of this condition,
despite having an opportunity to do so, we review his argument for plain error.
See United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010). To prevail on
plain error review, Gutierrez must identify (1) a forfeited error (2) that is clear
or obvious, rather than subject to reasonable dispute, and (3) that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
satisfies the first three requirements, this court, may, in its discretion, remedy
the error if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation omitted).
      Gutierrez first argues that requiring him to participate in the sex-
offender treatment program “as directed by the probation officer” improperly
delegates to the probation officer the decision whether he must seek such
treatment at all. The court may delegate to a probation officer decisions about
the details of a supervised release condition, including a treatment program,
but it may not delegate the decision whether to participate in such a program.
See United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016). We have held
that requiring a defendant to seek treatment “as deemed necessary and
approved by a probation officer” could constitute an impermissible delegation
of authority, as it is ambiguous. See id. at 566, 568. However, the special
condition in Gutierrez’s case does not include the problematic “as deemed
necessary” language. In unpublished opinions, we have held that requiring
participation in a treatment program “as directed by the probation officer” does
not constitute an impermissible delegation of authority, as it permits the
probation officer to address only the details of the treatment, not the necessity
for such treatment. United States v. Terrell, 677 F. App’x 938, 940 (5th Cir.



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                                 No. 16-11654

2017); see also United States v. Rhodes, 2017 U.S. App. LEXIS 13137 (5th Cir.
July 21, 2017) (not designated for publication) (holding that employing this
language was not plain error). In light of these decisions, Gutierrez is unable
to show that requiring him to participate in treatment “as directed by the
probation officer” constitutes a clear or obvious error. See Puckett, 556 U.S. at
135; Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
      In addition, Gutierrez maintains that requiring him to participate in the
sex-offender treatment program “until successfully discharged,” in the absence
of specific criteria detailing appropriate conditions of the program or what
constitutes “successful” completion, constitutes an impermissible delegation of
judicial authority to the treating therapist. A district court may delegate to a
therapist “the manner and means of therapy during a treatment program.”
United States v. Morin, 832 F.3d 513, 516-17 (5th Cir. 2016). Nothing in the
special condition imposed by the district court indicates that the therapist
would be authorized to impose extra supervised release conditions that would
be “separate and apart from non-compliance with the treatment program.” Id.
at 517. Gutierrez is unable to show that requiring the therapist to ascertain
whether he successfully completed the program constitutes a clear or obvious
error. See Puckett, 556 U.S. at 135; Morin, 832 F.3d at 516-17. As a result, the
judgment of the district court is AFFIRMED.




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