     Case: 09-40642 Document: 00511397061 Page: 1 Date Filed: 03/01/2011




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

                                                 FILED
                                                                           March 1, 2011
                                     No. 09-40642
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

MAURICE TURPIN,

                                                  Defendant-Appellant.


                   Appeals from the United States District Court
                        for the Southern District of Texas
                                   2:09-cr-59-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Maurice Turpin’s appeal of his criminal conviction now comes before this
court for the second time. In his first appeal, Turpin argued that the district
court impermissibly delegated its judicial authority by giving the probation
officer the power to decide whether Turpin would be required to participate in
mental health and anger management programs as a condition of his supervised
release.    Because of a discrepancy between the written and oral sentence,
however, we were uncertain whether the district court actually intended such

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
     Case: 09-40642 Document: 00511397061 Page: 2 Date Filed: 03/01/2011

                                       No. 09-40642

a delegation.     Therefore, we remanded the case for the limited purpose of
allowing the court to clarify. Because we are satisfied that the sentence as
clarified delegates to the probation officer only the authority to implement,
rather than impose, these special conditions, we now AFFIRM.
       At Turpin’s sentencing, the district court stated that Turpin would be
subject to “[s]tandard terms and conditions of supervision, along with drug and
alcohol treatment, alcohol abstinence, anger management, a nighttime
restriction of 11:00 p.m. to 6:00 a.m., and mental health.” The court made no
mention of the probation officer having any role in these conditions. In the
written judgment issued after the sentencing, however, the district court ordered
Turpin to participate in mental heath and anger management programs “as
deemed necessary and approved by the probation officer.” After we remanded
the case for clarification, the court proceeded to resentence Turpin—a procedure
to which neither party objected. The amended written judgment specifies that
the defendant is “required to participate” in a mental health program, as well as
anger management counseling.               Thus, neither requirement is left to the
discretion of the probation officer.
       Although our circuit has not yet decided whether a sentencing court may
permit a probation officer to determine whether a defendant is required to
undergo mental health treatment, such a delegation may be inappropriate. As
our prior opinion in this case noted, this issue has split our sister circuits. The
Third,     Fourth,    and    Eleventh      Circuits     have    held    that    imposing      a
sentence—including all conditions of probation—is a strictly judicial function,
which the district court may not delegate.1 The Eighth and Ninth Circuits, on
the other hand, have held that limited authority regarding the details of


       1
         See United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005); United States v.
Johnson, 48 F.3d 806, 808 (4th Cir. 1995) (“[T]he imposition of a sentence, including any terms
for probation or supervised release, is a core judicial function.”); United States v. Heath, 419
F.3d 1312, 1315 (11th Cir. 2005) (“[D]elegating to the probation office the authority to decide
whether a defendant will participate in a treatment program is a violation of Article IlI.”).

                                               2
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                                        No. 09-40642

supervised release may be delegated to probation officers, so long as a judicial
officer retains ultimate authority and responsibility for approving conditions of
probation.2 Likewise, the Sixth Circuit has held that, although “fixing the terms
and conditions of probation is a judicial act which may not be delegated,”
delegating such things as the schedule of restitution payments is permissible.3
Resolution of this question in our circuit will have to wait for another day, as
this case no longer presents any delegation problem.
       On a limited remand seeking clarification, the district court should not
have conducted a resentencing, in light of the well-established rule that a
district court may not interfere with the appellate court’s jurisdiction by altering
the judgment under review.4 Nevertheless, in the unique circumstances of this
case, we treat the amended sentence as merely the court’s clarification of the
original sentence. At the original sentencing, the probation officer’s role in the
mental health conditions was ambiguous because of the discrepancy between the
oral and written sentences. The language of the amended sentence resolves that
ambiguity by clarifying that the defendant is unconditionally required to
participate in the mental health programs, and that the probation officer’s role
is limited to implementing those requirements. Such a role raises no delegation
issues. Accordingly, we AFFIRM the original sentence as clarified.


       2
         See United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir. 2006); United States v.
Bowman, 175 F. App'x 834, 838 (9th Cir. 2006) (unpublished) (finding that delegating limited
authority to probation officer to recommend whether or not defendant should have
unsupervised visits is permissible, because “if the probation officer arbitrarily or unfairly
denies [defendant] a favorable recommendation, [defendant] is free to seek relief from the
district court”).
       3
           Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir. 2001).
       4
         See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)
(“The filing of a notice of appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court of its control over those
aspects of the case involved in the appeal.”); United States v. Cook, 592 F.2d 877, 880 (5th Cir.
1979) (“The district court [does] not reacquire jurisdiction over [a] case until the mandate of
this court [has] issued.”).

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