     Case: 16-10572      Document: 00514083084         Page: 1    Date Filed: 07/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10572                                   FILED
                                  Summary Calendar                             July 21, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JARRE JERONCE RHODES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-214-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Jarre Jeronce Rhodes appeals following his conviction for possession of a
firearm by a felon. Rhodes challenges the district court’s imposition of a special
condition of supervised release providing that he “shall participate in mental
health treatment services as directed by the U.S. Probation Officer until
successfully discharged.” He argues that, as written, the special condition
gives the probation officer the authority to determine whether he will


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10572

participate in mental health treatment and when he is to be discharged from
such treatment. Although the district court orally pronounced this condition
at the sentencing hearing, Rhodes did not object. Accordingly, our review is
limited to plain error. See United States v. Prieto, 801 F.3d 547, 549 (5th Cir.
2015). To demonstrate plain error, a defendant must show an error that is
clear or obvious, rather than subject to reasonable dispute, and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the
defendant makes such a showing, this court has the discretion to remedy the
error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      “While a district court may properly delegate to a probation officer
decisions as to the details of a condition of supervised release[,] . . . a court
impermissibly delegates judicial authority when it gives a probation officer
authority to decide whether a defendant will participate in a treatment
program.” United States v. Franklin, 838 F.3d 564, 567-68 (5th Cir. 2016)
(internal quotation marks and citation omitted).
      Although we have not addressed whether a condition like the one at issue
here is improper, other circuits have concluded that a condition that
unequivocally imposes a requirement on the defendant subject to a probation
officer’s approval or direction is permissible. See United States v. Miller, 341
F. App’x 931, 933 (4th Cir. 2009) (collecting cases). Thus, a condition stating
that the defendant “must” participate in a treatment program as directed by
the probation officer and until released from the program by the probation
officer was not improper. Id.; see also United States v. Kerr, 472 F.3d 517, 523-
24 (8th Cir. 2006) (holding that a condition that a defendant “shall participate”
in mental health treatment as directed by the probation officer did not
constitute an improper delegation).



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                                  No. 16-10572

      Given the foregoing, we conclude that if there was error, it was not clear
or obvious. See, e.g., United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).
      Accordingly, the judgment of the district court is AFFIRMED.




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