     Case: 16-41354        Document: 00514101382          Page: 1     Date Filed: 08/03/2017




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

                                        No. 16-41354                                    FILED
                                                                                     August 3, 2017
                                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                                 Clerk

                Plaintiff - Appellee,

v.

JERMAINE MARTEZ BARBER,

                Defendant - Appellant.




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 2:16-CR-103-1


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge. *
PER CURIAM:
      Jermaine Barber pleaded guilty to one count of possession of 100
kilograms or more of marijuana with intent to distribute and received a below-
guidelines sentence of twelve months and one day in prison as well as a three-
year term of supervised release. On appeal, Barber challenges the substance-
abuse treatment special condition of his supervised release. Because this
special condition is ambiguous as to the scope of the district court’s delegation



      *   District Judge of the Western District of Texas, sitting by designation.
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                                No. 16-41354
of authority to the probation office, we VACATE the substance-abuse
treatment special condition and REMAND to the district court for
resentencing.
                                      I.
      At the sentencing hearing, the district court imposed a special condition
of release requiring Barber to “participate in a drug and/or alcohol treatment
program as deemed necessary and approved by the Probation Office.” Barber
did not object.   The written judgment included the following provision
regarding drug and alcohol treatment:
      The defendant shall participate in a program, inpatient or
      outpatient, for the treatment of drug and/or alcohol addiction,
      dependency or abuse which may include, but not be limited to
      urine, breath, saliva and skin testing to determine whether the
      defendant has reverted to the use of drugs and/or alcohol. Further,
      the defendant shall participate as instructed and as deemed
      necessary by the probation officer and shall comply with all rules
      and regulations of the treatment agency until discharged by the
      Program Director with the approval of the probation officer. The
      defendant shall further submit to such drug-detection techniques,
      in addition to those performed by the treatment agency, as directed
      by the probation officer. The defendant will incur costs associated
      with such drug/alcohol detection and treatment, based on ability
      to pay as determined by the probation officer.
Barber appealed, challenging the special condition.
                                      II.
      We review a special condition for plain error where, as here, the
defendant failed to object to the condition when it was announced at
sentencing. United States v. Franklin, 838 F.3d 564, 566 (5th Cir. 2016).
Accordingly, Barber must show a clear or obvious error that affected his
substantial rights. See United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir.
2015); see also Puckett v. United States, 556 U.S. 129, 135 (2009). If Barber
makes such a showing, we have discretion to remedy the error if it “seriously

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                                 No. 16-41354
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Prieto, 801 F.3d at 550 (quoting Puckett, 556 U.S. at 135).
                                       A.
      Barber argues that the district court committed clear error by imposing
a special condition that was impermissibly ambiguous as to the scope of
authority delegated to the probation office. Probation officers have power “to
manage aspects of sentences and to supervise probationers and persons on
supervised release with respect to all conditions imposed by the court.”
Franklin, 838 F.3d at 567. However, a district court cannot delegate to a
probation officer the “core judicial function” of imposing a sentence, “including
the terms and conditions of supervised release.” Id. at 568.
      Accordingly, we have repeatedly vacated special conditions of release
that used the language “as deemed necessary and approved by the probation
officer” because this language created ambiguity as to whether the district
court had permissibly delegated authority to decide the details of a sentence’s
implementation or had impermissibly delegated the authority to impose a
sentence.   See, e.g., United States v. Yarbrough, No. 15-20236, 2017 WL
405629, at *1, *4 (5th Cir. Jan. 30, 2017); United States v. Alaniz, 671 F. App’x
292, 292 (5th Cir. 2016); Franklin, 838 F.3d at 566; United States v. Lomas,
643 F. App’x 319, 324 (5th Cir. 2016); United States v. Calhoun, 471 F. App’x
322, 323 (5th Cir. 2012); United States v. Vasquez, 371 F. App’x 541, 542–43
(5th Cir. 2010); United States v. Lopez-Muxtay, 344 F. App’x 964, 965 (5th Cir.
2009). The special condition imposed at the sentencing hearing in this case
uses substantially the same language that these prior cases deemed
ambiguous, requiring Barber to undergo substance-abuse treatment “as
deemed necessary and approved by the Probation Office.” Therefore, it is
impermissibly ambiguous.


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                                      No. 16-41354
       Indeed, the government concedes that the special condition orally
imposed at sentencing was impermissibly ambiguous, but argues that this
error was cured by the written judgment, which the government says is
unambiguous as to the scope of delegation. To the extent that the written
judgment conflicts with the sentence orally pronounced at sentencing, the
district court’s oral pronouncement controls. United States v. Torres-Aguilar,
352 F.3d 934, 935 (5th Cir. 2003). Accordingly, the written judgment does not
obviate the clear error in the orally imposed special condition of release. 1
                                            B.
       The error in this case affected Barber’s substantial rights because it
affected his right to be sentenced by an Article III judge. We have held that
“the unauthorized delegation of sentencing authority from an Article III
judicial officer to a non-Article III official affects substantial rights . . . .”
United States v. Albro, 32 F.3d 173, 174 n.1 (5th Cir. 1994). Thus, we have
vacated and remanded conditions of release that were ambiguous as to the
scope of authority delegated to a probation officer. See Alaniz, 671 F. App’x at
293 (holding that “ambiguity regarding whether the district court intended to
delegate authority not only to implement treatment but to decide whether
treatment was needed” constitutes clear error that affects a defendant’s
substantial rights); Yarbrough, 2017 WL 405629 at *3 (same); see also id. at *7
(Southwick, J., concurring) (noting that, by vacating and remanding
ambiguous delegation, majority opinion came “close” to calling improper




       1 The government argues in a 28(j) letter that there can be no ambiguity as to the
district court’s intention to mandate substance-abuse treatment in light of the PSR. In
support of this position, the government cites our opinion in United States v. Guerra, 856
F.3d 368, 369–70 (5th Cir. 2017). That case is distinguishable. There, the defendant’s own
counsel directed the court’s attention to the defendant’s mental health issues at sentencing
and the PSR contained extensive discussion of the defendant’s past mental health issues and
issues with drugs. Id.
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                                      No. 16-41354
delegation a structural error but concurring because it did not actually do so);
Pitts, 2016 WL 6832953 at *2 (vacating and remanding impermissible
delegation without discussing what conditions the district court would have
imposed); Albro, 32 F.3d at 174 (vacating and remanding impermissible
delegation despite noting that the district court could revise the sentence based
on the probation officer’s recommendations). Barber has made the requisite
showing that the clear error in this case affected his substantial rights. 2
                                             C.
       Although Barber has demonstrated a clear or obvious error that affected
his substantial rights, we retain discretion in deciding whether to remedy this
error and will do so only if the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.”               Prieto, 801 F.3d at 550.
“[P]reserving the judiciary’s exclusive authority to impose sentences is an area
in which it is important for courts to be vigilant.” United States v. Morin, 832
F.3d 513, 518 (5th Cir. 2016). “Exercising our discretion to correct the error
under these circumstances is consistent with that vigilance.” Pitts, 670 F.
App’x at 376 (citing Morin, 832 F.3d at 518; Prieto, 801 F.3d at 550; Albro, 32
F.3d at 174 n.1) (vacating and remanding impermissible delegation on plain



       2 The government invites us to follow a First Circuit decision suggesting that a
defendant’s substantial rights are not adversely affected by an error unless, “but for the
alleged error, the court would likely have imposed a different and more favorable sentence”
than the probation officer imposed. United States v. Mercado, 777 F.3d 532, 536 (1st Cir.
2015) (holding on plain error review that defendant could not show any error affected his
substantial rights). However, the First Circuit, also on plain error review, has vacated and
remanded special conditions of release that delegated sentencing authority to the probation
officer without discussing what sentence the district court would likely have imposed. See,
e.g., United States v. Figuereo, 404 F.3d 536, 542 (1st Cir. 2005) (vacating delegation of
authority to determine whether to order drug treatment in the event the defendant failed a
drug test while on supervised release). In any event, we must follow our own case law, which
has repeatedly held that the delegation of sentencing authority affects substantial rights
without inquiring into what sentence the district court would likely have imposed. See, e.g.,
Alaniz, 671 F. App’x at 293; Yarbrough, 2017 WL 405629, at *3; United States v. Pitts, No.
15-50850, 2016 WL 6832953, at *2 (5th Cir. Nov. 18, 2016); Albro, 32 F.3d at 174 & n.1.
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                                 No. 16-41354
error review); see also Yarbrough, 2017 WL 405629 at *3 (vacating and
remanding ambiguous delegation on plain error review); Alaniz, 671 F. App’x
at 293 (vacating and remanding ambiguous delegation on plain error review);
United States v. Heath, 419 F.3d 1312, 1316 (11th Cir. 2005) (vacating and
remanding impermissible delegation on plain error review); United States v.
Pruden, 398 F.3d 241, 251 (3d Cir. 2005) (vacating and remanding
impermissible delegation on plain error review); Albro, 32 F.3d at 174
(vacating and remanding impermissible delegation on plain error review). But
see Guerra, 856 F.3d at 369–70 (modifying facially ambiguous delegation and
affirming as modified because the district court’s intention was clear in light
of defense counsel’s representations to the court and in light of defendant’s
extensive history of mental health issues and issues with drugs).
      The government argues that our decision in United States v. Mendoza-
Velasquez, 847 F.3d 209, 213–14 (5th Cir. 2017), counsels against exercising
our discretion to correct the ambiguous delegation at issue in this case. In
Mendoza-Velasquez, we held that the defendant had not satisfied our
“stringent” requirements for demonstrating that we should exercise our
discretion to correct any error, even assuming that the district court did err by
imposing a mental health treatment special condition that was not reasonably
related to the sentencing factors in 18 U.S.C. § 3583. Id. at 213. That holding
is inapposite because, in the case now before us, the error involves delegation
rather than unreasonableness. Moreover, one of the factors that weighed
against exercising our discretion to correct any error in Mendoza-Velasquez
was the defendant’s “extensive criminal history stretching back to when he was
fourteen years of age,” and the defendant in this case has no prior criminal
history. Id. It is true, as the government notes, that our holding in Mendoza-
Velasquez relied in part on the authority of district courts to modify special
conditions at any time during a term of supervised release. See id. at 213–14.
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However, we have expressly held that this is not dispositive. Prieto, 801 F.3d
at 554. Moreover, the cases discussed above demonstrate that this factor has
not deterred us from repeatedly vacating and remanding special conditions
where the error involved delegation of sentencing authority. Thus, the exercise
of our discretion to correct the erroneously ambiguous delegation in this case
is consistent with our precedent.
                                      III.
      For the reasons stated above, we VACATE the substance-abuse
treatment special condition of release and REMAND to the district court for
resentencing, with the clarifying instruction we offered in Franklin, 838 F.3d
at 568 (quoting United States v. Lomas, 643 F. App’x 319, 325 (5th Cir. 2016)):
      If the district court intends that the [treatment] be mandatory but
      leaves a variety of details, including the selection of a [treatment]
      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 [treatment] to
      the discretion of the probation officer, such a condition would
      constitute an impermissible delegation of judicial authority and
      should not be included.




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