     Case: 15-20236      Document: 00513855225         Page: 1    Date Filed: 01/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-20236                               FILED
                                                                           January 30, 2017

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

GEORGE YARBROUGH,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:14-CR-00526-1


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       George Yarbrough pleaded guilty without a written plea agreement to
mailing threatening communication.             He was sentenced to 21 months of
imprisonment, consecutive to a state sentence, and three years of supervised
release.    The written judgment included conditions of supervised release
requiring Yarbrough to “participate in a vocational training program as
deemed necessary and approved by the probation officer” and “participate in a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20236
mental health program as deemed necessary and approved by the probation
officer.”   Yarbrough appeals those conditions, arguing that each is an
impermissible delegation of judicial authority to the probation officer.
                                 DISCUSSION
       “[A] defendant has a constitutional right to be present at sentencing.”
United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006) (internal quotation
marks and citation omitted; alteration in original); see also Fed. R. Crim. P. 43.
Where there is a conflict between the written judgment and the oral
pronouncement of sentence, the oral pronouncement controls. United States v.
Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003); see also United States v.
Vega, 332 F.3d 849, 852 (5th Cir. 2003). We review the imposition of a special
condition of supervised release for abuse of discretion.       United States v.
Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). However, if a defendant fails to
object to a special condition, we review for plain error. United States v. Bishop,
603 F.3d 279, 280 (5th Cir. 2010). But, where a defendant had no opportunity
to address the issue, this court reviews the imposition of special conditions of
supervised release for an abuse of discretion. United States v. Fernandez, 776
F.3d 344, 345 (5th Cir. 2015); see also Torres-Aguilar, 352 F.3d at 935.
I. Vocational Training Program Condition
       Yarbrough asserts that the district court reversibly erred in imposing a
special condition of supervised release requiring him to “participate in a
vocational training program as deemed necessary and approved by the
probation officer.”   Yarbrough acknowledges that he did not object to the
impermissible delegation at sentencing, but asserts that he had no opportunity
to object because the impermissible delegation was not orally pronounced and,
thus, review would be for an abuse of discretion. The Government asserts that,
instead, we should review for plain error because Yarbrough failed to object
when the condition was included in a later email after sentencing and outside
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                                      No. 15-20236
of Yarbrough’s presence. However, there is nothing to indicate counsel could
have properly objected to an email after sentencing or that it would have had
the same effect as an objection during the oral pronouncement at sentencing. 1
       Here, the district court instructed the email to be sent for the limited
purpose of insuring that any requirements imposed were not duplicative of
state requirements. Further, the email indicated that it was providing the
“proposed wording for the Bureau of Prisons regarding Mr. Yarbrough’s mental
health treatment” and the “proposed wording for Mr. Yarbrough’s mental
health condition while on supervised release (last paragraph).” Additionally,
Yarbrough’s reply did not indicate that he was in agreement with all
conditions, but rather addressed the very limited purpose for which the
proposed wording was provided and a change made by the court.
       Specifically, the court said: “[Probation officer], regarding the last
paragraph, I would think that all conditions should be coordinated with
requirements imposed by the state’s conditions of mandatory supervision or
parole.”   Yarbrough’s counsel: “Dear All, I agree with Judge Atlas.                   Also,
despite the Court’s use of the word ‘serious’ during the hearing, I think that
may confuse the BOP. I would use the word ‘thorough,’ if any modifier is
necessary.” This reference was to language in the recommendations to the
Bureau of Prisons regarding mental health treatment.
       This court has held that a district court abused its discretion by including
an additional restriction in the written judgment that was not part of the oral
pronouncement of sentence. See United States v. Tang, 718 F.3d 476, 487 (5th
Cir.2013).




       1This is unlike United States v. Rouland, 726 F.3d 728 (5th Cir. 2013), which is cited
by the Government, where Rouland failed to object to a document setting out the conditions
and introduced as an exhibit during the sentencing hearing.
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                                  No. 15-20236
      Further, in United States v. Lomas, a panel of this court concluded that,
where Lomas did not have an adequate opportunity to object, the review is for
abuse of discretion and the legal question of whether the condition involved an
unconstitutional delegation of authority is reviewed de novo. United States v.
Lomas (Lomas II), 643 F. App’x 319, 324-25 (5th Cir. 2016) (citing United
States v. Perez–Macias, 335 F.3d 421, 425 (5th Cir.2003)).
      Specifically, this court said:
      Although probation officers have broad power to supervise
      probationers and “perform any other duty that the court may
      designate,” 18 U.S.C. § 3603(10), the type of duty that a court may
      delegate is limited by Article III of the Constitution, see United
      States v. Johnson, 48 F.3d 806, 808–09 (4th Cir.1995). The
      imposition of a sentence, including the terms and conditions of
      supervised release, is a “core judicial function” that cannot be
      delegated. Id. at 808 (citing Ex Parte United States, 242 U.S. 27,
      41, 37 S.Ct. 72, 61 L.Ed. 129 (1916)); see United States v. Pruden,
      398 F.3d 241, 250 (3d Cir.2005) (“[A] probation officer may not
      decide the nature or extent of the punishment imposed upon a
      probationer.”). Thus, a district court may properly delegate to a
      probation officer decisions as to the “details” of a condition of
      supervised release. United States v. Nash, 438 F.3d 1302, 1305
      (11th Cir.2006) (citation omitted). But 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. Heath, 419 F.3d 1312, 1315
      (11th Cir.2005) (emphasis added); see also Lomas I, 304 F. App’x
      at 300–01 (collecting cases from other circuits).

      Lomas II, 643 F. App’x at 324. We then vacated the educational and
mental health program conditions of Lomas’ supervised release and remanded
to the district court for resentencing.
      Previously on direct appeal, Lomas argued that the district court
reversibly erred by delegating to the probation officer the authority to decide
whether he should undergo mental health treatment. United States v. Lomas
(Lomas I), 304 F. App’x 300 (5th Cir. 2008). Because Lomas had not objected,
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                                  No. 15-20236
this court reviewed for plain error and found none, noting that “[w]e ordinarily
do not find plain error when we ‘have not previously addressed’ an issue.” Id.
at 301. However, the court acknowledged its concerns and cited precedent from
other circuits that “have agreed an improper delegation occurs in similar
cases.” Id. at 300. Specifically, the court said:
             Other circuits have agreed an improper delegation occurs in
      similar cases. The Eleventh Circuit has found that an
      impermissible delegation of judicial authority occurs when a court
      gives “the probation officer the authority to decide whether a
      defendant will participate in a treatment program,” as opposed to
      authority over the implementation of the treatment. United States
      v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005); see also United
      States v. Pruden, 398 F.3d 241, 250-51 (3d Cir.2005) (mental
      health treatment); United States v. Peterson, 248 F.3d 79, 85 (2d
      Cir.2001); United States v. Kent, 209 F.3d 1073, 1078-79 (8th
      Cir.2000) (mental health treatment); United States v. Figuereo,
      404 F.3d 537, 542-43 (1st Cir.2005) (drug testing); United States v.
      Stephens, 424 F.3d 876, 882-84 (9th Cir.2005) (drug testing);
      United States v. Sines, 303 F.3d 793, 799 (7th Cir.2002) (sex-
      offender treatment). One of our sister circuits concluded that every
      circuit court to review a sentence that gave to a probation officer
      the authority to decide whether a defendant will participate in a
      treatment program found it unconstitutional. Heath, 419 F.3d at
      1315.

      Id. at 300.
      More recently, in United States v. Franklin, 838 F.3d 564, 568 (5th Cir.
2016), we stated that “a court impermissibly delegates judicial authority when
it gives a probation officer authority to decide whether a defendant will
participate in a treatment program.” (Emphasis original; citations omitted).
Additionally, we vacated Franklin’s mental health program special condition
and remanded to the district court for resentencing with the same clarifying
instruction used in Lomas II, 643 F. App’x at 325.



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                                  No. 15-20236
      For these reasons, we conclude that Yarbrough was not given a
meaningful opportunity to object during the sentencing hearing. See Bigelow,
462 F.3d at 381; see also United States v. Hudson, 625 F. App’x 686, 687-89
(5th Cir. 2015).     Further, we conclude that the district court abused its
discretion by impermissibly delegating judicial authority to the probation
officer as to whether Yarbrough would participate in a vocational training
program.
II. Mental Health Program Condition
      Yarbrough asserts that the district court’s imposition, in the written
judgment, of a special condition that he “participate in a mental health
program as deemed necessary and approved by the probation officer” also was
an impermissible delegation of judicial authority to the probation officer.
Yarbrough concedes that the district court orally pronounced this condition at
sentencing and, thus, review would be for plain error. The government asserts
that review should be for invited error because counsel induced the error by
requesting a post-release mental health evaluation, which necessarily implied
such a delegation. United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014).
However, there is nothing in the record to indicate that Yarbrough asked the
district court to delegate the decision of whether he needed to or would
participate in a mental health program to a probation officer. Thus, our review
is for plain error. Bishop, 603 F.3d at 280.
      To establish plain error, a defendant must show an error is clear or
obvious and affects his substantial rights. 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 he does, we have the discretion to correct that error, and, usually
will do so if it seriously affects the fairness, integrity or public reputation of
judicial proceedings. Id.


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                                  No. 15-20236
      In addition to the cases cited above, during the pendency of this appeal
and on plain error review, we vacated the mental health program special
condition and remanded to the district court for resentencing in the
unpublished case of United States v. Alaniz, --- F. App’x ----, 2016 WL 7187378
(5th Cir. 2016). These cases compel the same outcome here. Thus, we conclude
that Yarbrough has shown an error that is clear and obvious and affects his
substantial rights. See United States v. Gordon, 838 F.3d 597, 605 (5th Cir.
2016). Based on the “core judicial functions” affected by this error, we exercise
this court’s discretion to correct the error.
                                 CONCLUSION
      For the reasons stated herein, we VACATE the vocational training
program and mental health program special conditions and REMAND to the
district court for resentencing, with the same clarifying instruction offered in
Franklin:
      If the district court intends that the therapy be mandatory but
      leaves a variety of details, including the selection of a therapy
      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 therapy to the
      discretion of the probation officer, such a condition would
      constitute an impermissible delegation of judicial authority and
      should not be included.

      Id. at 568.




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                                 No. 15-20236
LESLIE H. SOUTHWICK, Circuit Judge, concurring.
      The majority is certainly correct that it is unconstitutional for a district
judge to delegate to a probation office the decision of whether a defendant will
participate in a treatment program. That is a sentencing decision. District
judges make those.
      Once an improper delegation occurs, it is efficient for us in each case to
hold that under plain-error review, the delegation must be vacated and the
case remanded for the district judge to sentence properly. Such a consistent
approach, though, requires that we conclude the delegation by itself affects
substantial rights and fundamentally damages the judicial proceeding. I do
not believe it does. Instead, we must consider those final two factors on a case-
by-case basis. Here, Yarbrough cannot show that his substantial rights were
affected by the improper delegation. Thus, I see no reason to vacate and
remand for resentencing. Nonetheless, I concur in the result. More, later,
about why I concur.
      I start with the record. It is clear that Yarbrough cannot show a less
onerous condition would have been imposed but for the error. There is no
argument that the mental-health condition was not warranted, and the district
court clearly indicated its intention to impose the condition. For example,
when the district court asked Yarbrough whether he wanted mental-health
treatment, he said he did:
      COURT: In the report there is an indication — a strong indication
      of the need for mental health treatment, and Mr. Yarbrough, I’m
      wondering if that is something you want?
      THE DEFENDANT: Yes, ma’am.
      Under our usual substantial-rights analysis, I would conclude
Yarbrough’s substantial rights have not been affected. We simply cannot say
the delegation error “affected the outcome of the district court proceedings.”

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                                 No. 15-20236
See Puckett v. United States, 556 U.S. 129, 135 (2009). Indeed, it seems that
any error had no effect whatsoever on whether Yarbrough would be required
to attend mental-health treatment.
      I now turn to the caselaw. The majority says our precedents compel us
to vacate and remand. Yet the authoritative opinions cited by the majority are
materially distinguishable. The relevant precedents are those in which the
delegation question had to be answered under plain-error review and in which
there was significant record evidence that the defendant was in need of the
treatment that was the subject of the delegation.
      The case cited by the majority for the proposition that Yarbrough’s
substantial rights were affected is United States v. Gordon, 838 F.3d 597 (5th
Cir. 2016). Unlike this case, in Gordon “the district court’s imposition of the
mental health condition [was] not reasonably related to any of the Section 3553
factors . . . .” Id. at 605. On appeal, the government conceded there was no
basis in the record for the defendant to be required to participate in a mental-
health program. Id. at 604. For that reason, the condition was not related to
any of the Section 3553 factors applicable to sentencing. See 18 U.S.C. § 3553.
The effect on Gordon’s substantial rights was that the program would impose
a “significant financial burden, require him to attend multiple sets of
treatment, and as Gordon point[ed] out, result in an unwarranted perception
that he requires mental health treatment.” Gordon, 838 F.3d at 605.
      Also cited, but only in the majority’s analysis for the general description
of plain-error review, is United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir.
2015). There was no delegation issue in that case, but the court held that one
condition of supervised release was not reasonably related to any Section 3553
factor. Id. at 553. As such, “[w]e easily conclude[d] that the district court’s
error affected Prieto’s substantial rights. Had the error not occurred, Prieto


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                                 No. 15-20236
would not have been subjected to the unwarranted special condition because
no record evidence reveal[ed] any justification for the condition.” Id.
      Neither Prieto nor Gordon support that allowing the Probation Office to
require Yarbrough to participate in a mental-health program affected his
substantial rights. That is because the Section 3553 factors fully support the
requirement as to Yarbrough.
      The majority also cites a non-precedential opinion, United States v.
Alaniz, ___ F. App’x ____, 2016 WL 7187378 (5th Cir. Dec. 9, 2016). There, we
held that obvious error occurred when the district court delegated to the
probation officer the decision whether the defendant’s participation in a
mental-health program was necessary. Id. at *2. We then declared that the
delegation affected Alaniz’s substantial rights, citing the same case used by
the majority here, Gordon, to explain why. Id. As already noted, though,
Gordon held that substantial rights were affected only after determining there
was no record support for requiring that defendant to participate in a mental-
health program at all, regardless of who was imposing the requirement.
Gordon was not a good fit to explain the harm as to Alaniz, because Alaniz had
previously been diagnosed with several mental-health problems. See Alaniz,
2016 WL 7187378, at *1. The Section 3553 factors may well have supported
the requirement as to Alaniz. Thus, we went beyond what Gordon had held.
Whatever we meant in Alaniz, that opinion is not precedential.
      These decisions from the last year or two are the most recent versions of
caselaw that, insofar as the specifics of what the majority orders here, can be
traced back at least to United States v. Lomas, 304 F. App’x 300 (5th Cir. 2008).
There, on plain-error review, we noted that no existing Fifth Circuit or
Supreme Court precedent had held whether it was proper to delegate to a
probation officer a decision of whether the defendant should undergo mental-
health treatment. Id. at 300–01. As there was no error that was plain, we
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                                  No. 15-20236
never reached whether such error would have affected the defendant’s
substantial rights. Id. at 301. We left the condition in place. Years later, while
Lomas was still on supervised release, the Probation Office petitioned to revoke
his release because of various violations. See United States v. Lomas, 643 F.
App’x 319, 320 (5th Cir. 2016). Revocation occurred, and a new sentence was
imposed that again had as a condition of supervised release that Lomas
participate in a mental-health program. Id. We found ambiguity as to what
exactly the district court had ordered at sentencing, so we could not say
whether the Probation Office had been improperly delegated the decision of
whether Lomas had to participate in the program. Id. at 324. Without holding
whether plain-error review applied because the ambiguity also meant that
Lomas may not have had an opportunity to object, we relied on the ambiguity
to vacate and remand for the district court to state the sentence more clearly.
Id. at 324–25. No analysis of the effect on substantial rights was made, as it
was irrelevant to the decision.
      Another significant precedent is United States v. Franklin, 838 F.3d 564
(5th Cir. 2016). Again we found an orally pronounced sentence ambiguous as
to whether it left to the Probation Office the decision on whether the defendant
had to participate in a mental-health program. Id. at 567. We took a cautious
approach of reviewing for an abuse of discretion, as Franklin may not have
needed to object to an unclear oral pronouncement by the district judge at
sentencing. Id. As in the 2016 Lomas decision, we vacated and remanded so
that the district judge could state unambiguously whether he was ordering
participation in the program. Id. at 568.
      A few other prior opinions from this court on the issue were resolved
based on review for an abuse of discretion. In such situations, there is no need
to show an effect on substantial rights as that is a factor only for plain-error
review. E.g., United States v. Calhoun, 471 F. App’x 322, 323 (5th Cir. 2012)
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                                  No. 15-20236
(vacating and remanding condition requiring participation in anger-
management counseling “as deemed necessary and approved by the probation
officer”; defendant had no opportunity to object at sentencing so review was for
an abuse of discretion); United States v. Vasquez, 371 F. App’x 541, 542–43 (5th
Cir. 2010) (same, except condition was to require participation in treatment
program for sex offenders).
      At least one other case seems similar to Franklin and the 2016 Lomas
decision, and that is United States v. Lopez-Muxtay, 344 F. App’x 964 (5th Cir.
2009). There, we vacated and remanded for clarification without ever stating
a standard of review or addressing the plain-error factors. Id. at 965–66.
      There is one case, non-precedential though, that did wrestle just a bit
with how the third factor on plain-error review was satisfied. See United States
v. Pitts, ___ F. App’x ____, 2016 WL 6832953 (5th Cir. Nov. 18, 2016). A
condition of supervised release was this: “The defendant shall follow all other
lifestyle restrictions or treatment requirements imposed by the therapist, and
continue those restrictions as they pertain to avoiding risk situations
throughout the course of supervision.” Id. at *1. Due to Pitts’s failure to object
to this condition, we applied plain-error review to the argument that the
district court improperly delegated authority to the therapist. Id. A similar
condition had been invalidated in another case, but in that case there had been
an objection and thus we reviewed for an abuse of discretion. See United States
v. Morin, 832 F.3d 513, 515–16 (5th Cir. 2016).        Morin resolved that the
condition was an error that was plain. The Pitts court then discussed the third
factor of plain error this way: “Pitts’s substantial rights were affected by the
erroneous delegation ‘to a therapist the authority to impose, without court
review, independent conditions of supervised release . . . that could serve as
the basis for violations of the terms of supervised release separate and apart
from non-compliance with the treatment program.’” Pitts, 2016 WL 6832953,
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                                   No. 15-20236
at *1 (quoting Morin, 832 F.3d at 517). That internally quoted language was
used in Morin simply as an explanation as to why the condition was error, not
why it affected a defendant’s substantial rights. Morin, 832 F.3d at 517. Still,
it was fair for Pitts to use it for the substantial-rights analysis if it supported
the point, but I do not see that it does. To explain why, I will, finally, dig deeper
into what is meant by an effect on substantial rights.
      The Supreme Court has explained that, to warrant reversal on plain-
error review, “the error must have affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate that it ‘affected the
outcome of the district court proceedings.’” Puckett, 556 U.S. at 135 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). An elaboration is that a
defendant “‘must make a specific showing of prejudice’ in order to obtain
relief[.]” Id. at 142 (quoting Olano, 507 U.S. at 735). The Supreme Court has
also held that when, as here, “the burden of demonstrating prejudice (or
materiality) is on the defendant seeking relief,” the defendant must show “‘a
reasonable probability that, but for the error claimed, the result of the
proceeding would have been different.’” United States v. Dominguez Benitez,
542 U.S. 74, 81–82 (2004) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985) (Blackmun, J.)) (alteration omitted).
      Here, the claimed error is delegation. We need to be clear that the error
is limited to whether Yarbrough had to participate in a treatment program.
See, e.g., Franklin, 838 F.3d at 568. That is a “yes” or “no” by the court. The
district court does not err, once ordering participation, by giving to the
Probation Office the authority to decide the many details of such a program.
Id. Substantial rights of a defendant are therefore unaffected by a delegation
when there has not been shown a reasonable probability that the district court
would not also have imposed a treatment program.               The already-quoted
questioning by the district judge, and Yarbrough’s desire for such a treatment
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                                  No. 15-20236
program, means to me that on these facts the delegation had no effect on
Yarbrough’s substantial rights.
       What the majority comes close to doing, and what the Supreme Court
warns not be done, is to declare that an improper delegation is a structural
error in the proceedings.      The Court has “noted the possibility that . . .
‘structural errors[]’ might ‘affect substantial rights’ regardless of their actual
impact on an appellant’s trial.” United States v. Marcus, 560 U.S. 258, 263
(2010). When such errors occur, automatic reversal may be warranted. See
Washington v. Recuenco, 548 U.S. 212, 218–19 (2006). “But ‘structural errors’
are ‘a very limited class’ of errors that affect the ‘framework within which the
trial proceeds’ . . . such that it is often ‘difficult’ to ‘assess the effect of the
error[.]’”   Marcus, 560 U.S. at 263 (citations omitted).           They are not
commonplace, and they do not include all constitutional errors. See id. What
occurred here is nowhere near as significant as a total denial of counsel, or a
biased trial judge, or violating the right to a public trial. See id. The delegation
error here is simply not within this “very limited class,” which means
automatic reversal is not warranted. See id.
       Because the district court, with Yarbrough’s consent, indicated its
intention to require Yarbrough to attend a mental-health program, he cannot
show that any impermissible-delegation error affected his substantial rights.
Reviewing for plain error, I could readily affirm. The foregoing is a bit prolix
for my conclusion, though, which is to concur with vacating and remanding for
resentencing. I do so because the majority goes only slightly further than I
believe the caselaw permits.        With respect for the district judge, the
requirement of a reformed sentencing order does not appear unduly
burdensome. It is an unnecessary remand in my view but not worth the strong
label of a dissent. I urge our court, though, to consider closely the third factor
of plain-error review in future cases in which improper delegation is the issue.
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