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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20259                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 10, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DANIEL LOMAS, III,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:07-CR-497


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Daniel Lomas, III, appeals the district court’s reimposition of special
conditions of supervised release where the written judgment differed from the
oral pronouncement at sentencing. Because we conclude that the district court
abused its discretion, we VACATE the educational program and mental health
conditions of supervised release and REMAND to the district court for
proceedings consistent with this opinion.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                  FACTS AND PROCEDURAL HISTORY
      Daniel Lomas, III, pleaded guilty in 2008 to conspiracy to transport an
alien for the purpose of commercial advantage and private financial gain under
8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii), & (v)(I). He was sentenced to twenty-four
(24) months imprisonment, to be followed by three years of supervised release.
Among the special conditions of supervised release, Lomas was required to
participate in a drug treatment program, “required to participate in a mental
health program as deemed necessary and approved by the probation officer,”
and ordered to “enroll and participate in an educational program designed to
receive a high school diploma or its equivalency.” The term of supervised
release began on October 9, 2009.
      On March 2012, the United States Probation Office (Probation)
petitioned the court to revoke Lomas’ supervised release, alleging a law
violation from traffic violations, two positive drug tests, and failure to report.
In July 2012, Lomas pleaded true to committing the four supervised-release
violations. The district court revoked Lomas’ supervised release and sentenced
him to seven months imprisonment with an additional term of supervised
release of twenty nine (29) months.         The written judgment omitted the
educational condition, but contained the same drug-treatment and mental-
health conditions as originally required.
      In July 2013, Probation again petitioned the district court regarding a
supervised released violation. On September 6, 2013, Lomas pleaded true to
one violation for failing to participate as directed in an alcohol and drug
treatment program. As Lomas was gainfully employed and had tested clean,
the district court removed the drug-treatment requirement, but admonished
Lomas to “comply in the future with the requirements” of his supervised
release and said “the other terms of supervised release will continue, which
will mean you will continue to be tested from time to time.” The written order
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                                  No. 14-20259
said that the court had “reinstated all previously imposed conditions and
waived drug treatment at this time,” but did not specify the conditions.
      On March 10, 2014, Probation petitioned the court to revoke Lomas’ term
of supervised release, alleging two law violations of criminal trespass, one
positive drug test, and later a superseding allegation of a fourth violation
involving an assault. After a hearing in which Lomas’ mental health condition
was discussed at length, Lomas pleaded true to the positive drug test violation
and the court revoked his supervised release. The other alleged violations were
dismissed.
      The district court sentenced Lomas to a term of imprisonment of eight
months, to be followed by a twenty-one (21) month term of supervised release.
Specifically, the court said that “the previous condition remained [sic] in effect
with respect to drug treatment and help as may be determined appropriate by
the probation office, as I have previously required.” However, in addition to
the orally-imposed drug-treatment condition, the written judgment also
included the mental health and educational conditions that were originally
imposed – despite the fact that the educational condition was not reimposed in
March 2012.
      Thereafter, Lomas filed this appeal. On October 27, 2014, counsel filed
a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967). On March 19, 2015, this court denied the motion, identified two
potentially nonfrivolous issues for appeal, and ordered counsel to file
supplemental briefing. Counsel then filed briefing on the merits.
                          STANDARD OF REVIEW
      “[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). Where there is a conflict
between the written judgment and the oral pronouncement of sentence, the
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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). Lomas did not have the opportunity to address the issue when the
condition was reimposed. Thus, 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.
                                   DISCUSSION
I. The educational program condition. 1
      Lomas asserts that the district court abused its discretion by including
the educational program condition in the written judgment because it was not
orally pronounced or even mentioned during the sentencing hearing. Further,
he asserts that this condition should be struck from the judgment.
      The Government asserts that the court should review for plain error.
However, the Government offers no persuasive authority to support such a
proposition. The Government argues in the alternative that Lomas cannot
show that the district court abused its discretion by failing to announce the
condition.
      This court has held that the inclusion of “mandatory, standard, or
recommended” conditions of supervised release in the written judgment, even
if the conditions were not orally stated at sentencing, does not create a conflict
between the written and oral judgments. Torres-Aguilar, 352 F.3d at 938; see
also U.S.S.G. § 5D1.3(d)(1)(5). However, “if the district court fails to mention
a special condition at sentencing, its subsequent inclusion in the written
judgment creates a conflict that requires amendment of the written judgment


      1 We have been informed by the Federal Public Defender that Lomas recently violated
a separate condition and the educational program condition was not reimposed. Thus, this
issue would be moot.
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to conform with the oral pronouncement.” See Torres-Aguilar, 352 F.3d at 936
(quoting Vega, 332 F.3d at 852-53) (emphasis original). The special condition
that Lomas “enroll and participate in an educational program designed to
receive a high school diploma or its equivalency” is not a mandatory, standard
or recommended condition of supervised release under Section 5D1.3. See
U.S.S.G. § 5D1.3(a), (c), (d). This special condition is also not contained in
General Order No. H-1996-10 of the United States District Court for the
Southern District of Texas (General Order).
      This court has not yet specifically addressed in a published opinion
whether a defendant’s constitutional right to be present at sentencing is
violated where he was subject to the condition at issue based upon his initial
sentencing but was not orally informed that the condition was reimposed upon
revocation of his supervised release. However, 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). This court has also
held in an unpublished opinion that a district court abused its discretion by
including special conditions in a written judgment that were not orally
pronounced on revocation sentencing. See United States v. Babineaux, 493 F.
App’x 485, 487-89 (5th Cir. 2012). Further, this court has said that the oral
pronouncement controls where “the transcript from the revocation hearing
reflects that the district court's reimposition of the special assessment is
contrary to the oral pronouncement.” United States v. Orduna-Perales, 530 F.
App’x 355, 356 (5th Cir. 2013) (“[D]istrict court’s judgment is modified to strike
the reimposition of the $100 special assessment so that the written judgment
is in conformance with the oral pronouncement, and we affirm the judgment
as so modified.”); see also United States v. Gil-Perez, 605 F. App’x 439 (5th Cir.
2015).
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       Additionally, the special condition here was not reimposed in the written
judgment following Lomas’ 2012 revocation hearing – despite the district
court’s oral pronouncement that the “[s]pecial conditions of recommenced
supervised release will be [sic] same as those that had previously been in
effect.”
       The record reflects that the written judgment includes a special
condition that was not orally imposed and could not be clarified by reference to
conditions of supervision set forth elsewhere. See Torres-Aguilar, 352 F.3d at
936, 938. While this special condition was imposed in connection with Lomas’
original sentence, it was not orally pronounced upon reimposition of supervised
release during the 2014 revocation proceeding at issue here. This court has
previously concluded that the oral pronouncement controls in such a situation.
       For these reasons, we conclude that the district court abused its
discretion by including the educational program special condition in the
written judgment. Thus, we vacate the educational program condition and
remand to the district court to strike the condition from the written judgment.
II. The mental health program condition.
STEPHEN A. HIGGINSON, Circuit Judge:
       Lomas also challenges the mental-health special condition on the ground
that its wording impermissibly delegates to the probation officer the decision
whether he must undergo mental-health treatment.             Lomas has made this
argument before: in 2008, when he appealed his original sentence, which
contained an identically worded mental-health special condition. See United
States v. Lomas (Lomas I), 304 F. App’x 300 (5th Cir. 2008). At his 2008
sentencing, Lomas did not object to the alleged improper delegation, so we
reviewed the issue for plain error. Id. at 300. We found cause for concern, but
no plain error, and so affirmed. See id. at 301.


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       This time around, Lomas argues that review should be for abuse of
discretion because the district court “failed to mention the [mental-health]
condition while orally pronouncing the sentence.” 2 (Blue Br. at 15.) When a
district court fails to announce a special condition of supervised release at
sentencing, the defendant is denied “the opportunity to object.” Tang, 718 F.3d
at 487. When that happens, we review for abuse of discretion, not plain error.
See id.
       Here, it is close question whether the district court’s oral pronouncement
of sentence at the revocation hearing provided Lomas with adequate
“opportunity . . . to consider, comment on, or object to the special condition.”
United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). We begin by noting
that the condition has been an important constant for Lomas from 2008 to
2014: it appeared in his original 2008 sentence (ROA.75); then it was reiterated
orally and in his written judgment after his 2012 revocation (ROA.171, 105);
then it was “continue[d]” as “unchanged” orally and in writing after the 2013
modification (ROA.185, 121-22); and, finally, it is in his 2014 revocation
written judgment that we are reviewing now (ROA.146).
       We also note that the predicate for imposing the condition—that “the
court has reason to believe that the defendant is in need of psychological or
psychiatric    treatment”—was          satisfied.   U.S.S.G.      § 5D1.3(d)(5).    At    the


       2 Lomas does not challenge the inclusion of the mental health condition on the ground
that the district court’s alleged omission constitutes a “conflict” with the written judgment
requiring striking. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). Instead,
he notes the alleged omission only in support of his argument that abuse-of-discretion, rather
than plain-error, review should apply to his improper-delegation challenge. Thus, we need
not decide whether the inclusion of a detailed mental-health condition in the written
judgment following the district court’s oral pronouncement of generic “help” constituted a
“conflict” requiring striking or an “ambiguity” permitting us to consider the district court's
intent. See United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). If we were faced with
that decision, however, then for the reasons set forth in the following discussion, we would
be inclined to hold that, under the facts present here, the difference between the oral
pronouncement and written judgment constituted only an ambiguity.
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revocation hearing, Lomas’s counsel challenged the court’s review of Lomas’s
medical records from the Bureau of Prisons. (ROA.194-99.) The court explained
that it had ordered the records in response to concerns raised by defense
counsel about Lomas’s medical treatment, and for the purpose of verifying that
the Bureau of Prisons was providing Lomas with “reasonable access for
medical evaluation and appropriate prescribed medications for the treatment
of bipolar [dis]order.” (ROA.196.) Later in the hearing, Lomas’s counsel argued
that Lomas’s bipolar disorder diagnosis helps to explain his struggle to comply
with the drug-treatment conditions of his supervised release. (ROA.202.)
Finally, at the end of sentencing, the court instructed Lomas to “pay attention
to the doctors’ diagnosis that your lawyer has very well pointed out. And do
what those doctors say, and if they say you should have prescription
medication, then take that. Understand that they’re trained in trying to help
you, too.” (ROA.208-09.) In short, concern for Lomas’s mental health, from both
court and counsel, ran through the entire hearing. These exchanges make clear
that the court was familiar with Lomas’s mental-health history and had
“reason to believe” that Lomas was in need of further psychiatric treatment.
U.S.S.G. § 5D1.3(d)(5).
      It is against this backdrop that we must read the court’s oral
pronouncement about supervision:
      1     And it’s the Court’s hope, by providing adequate
      punishment, which is incremental to his previous revocation,
      slightly, and by giving him more opportunity for supervision – And
      I want to say, also, the previous condition remained in effect with
      respect to drug treatment and help as may be determined
      appropriate by the probation office, as I have previously required.
(ROA.207 (emphasis added).) Given the context just described—Lomas’s long
history of consistently receiving the mental health condition, and the clear
concern for Lomas’s mental health demonstrated by both court and counsel

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during the hearing—the court’s mention of “help” can plausibly be read to refer
to the previously, and consistently, imposed mental-health condition.
      Even so, it is a close question whether the district court’s single mention
of “help” was sufficient to provide Lomas with adequate “opportunity at
sentencing to consider, comment on, or object to” the version of the mental-
health condition that the district court ultimately imposed. Bigelow, 462 F.3d
at 381; see generally Fed. R. Crim. P. 32.1(b)(2)(E), (c)(1). In particular, it is
hard to see how Lomas could have objected at sentencing to the wording of the
condition—the basis of his challenge on appeal—when he did not encounter
that wording until he received his written judgment. Thus, we will not limit to
plain error our decision as to whether the delegation requires reversal. We
review de novo the constitutional question whether the delegation contravened
Article III of the United States Constitution. See United States v. Perez-Macias,
335 F.3d 421, 425 (5th Cir. 2003).
      Lomas argues that the district court impermissibly delegated its judicial
authority by leaving his participation in a mental-health program to the
discretion of his probation officer. 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 (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)
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(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).
          Here, the mental-health condition imposed in Lomas’s written judgment
provided, in relevant part: “The defendant is required to participate in a
mental health program as deemed necessary and approved by the probation
officer.” (ROA. 146.) Coupled with the “extensive evidence of [Lomas’s] mental
illness,” United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002), the first part
of the sentence sounds mandatory: “the defendant is required to participate.”
But the second part is discretionary: “. . . as deemed necessary . . . by the
probation officer,” hence we conclude that, in this case, the condition is
ambiguous, see United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001), and
we vacate the condition and remand for resentencing, with the following
instructions:
          2     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. 3



         We caution, however, that our finding of ambiguity is limited to the facts of this case,
          3

and should be viewed as the exception, not the rule. In most instances, this sort of
discretionary language--apparently used with some frequency, see, e.g., United States v.
Villarreal, 519 F. App'x 236, 237 (5th Cir. 2013); United States v. Fernandez, 436 F. App'x
384, 385 (5th Cir. 2011); United States v. Torres-Pindan, 400 F. App'x 839, 841 (5th Cir.
2010); United States v. Bishop, 603 F.3d 279, 280 (2010); United States v. De Los Santos, 332
F. App'x 993, 993 (5th Cir. 2009); United States v. Davis, 306 F. App'x 851, 852 (5th Cir.
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                                   CONCLUSION
      For the reasons stated herein, we VACATE the educational program and
mental health program conditions of supervised release and REMAND to the
district court for resentencing.




2009); United States v. Grubert, 339 F. App'x 406, 406 (5th Cir. 2009); United States v.
Mungia, 297 F. App'x 314, 314 (5th Cir. 2008)--will constitute an impermissible delegation.

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                                      No. 14-20259
GRAVES, Circuit Judge, concurring in part as to issue II:
      I disagree with the separate majority’s conclusion that the mental health
condition was ambiguous. On reimposition of Lomas’ supervision, the district
court’s written judgment included the special condition that required Lomas
“to participate in a mental health program as deemed necessary and approved
by the probation officer.” The district court imposed a mental health program
condition in Lomas’ initial sentence and at his prior revocation hearing.
      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, 304 F. App’x 300
(5th Cir. 2008). Because Lomas had not objected, 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. 1

      This court has considered arguments that conditions are substantively
unreasonable upon reimposition even when those arguments were not


      1 Specifically, this court said:
              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.
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presented on original imposition. United States v. Johnson, 577 F. App’x 241,
243-44 (5th Cir. 2014). The revocation leads to a new sentence. Id. at 244.
While Lomas did raise this issue on direct appeal as related to his original
sentence and under plain error review, this appeal pertains to the reimposed
sentence on revocation under a different standard of review. Here, this court’s
review is for abuse of discretion because Lomas did not have the opportunity
to contest the reimposed condition at sentencing. This court has not addressed
the issue of delegation of authority under the abuse-of-discretion standard.
Further,    the legal question of       whether the condition involved an
unconstitutional delegation would be reviewed de novo. See United States v.
Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
       The district court here did not orally impose on reimposition of
supervised release the special condition that Lomas enroll in a mental health
treatment program “as deemed necessary and approved by the probation
officer.”   That special condition appears only in the written judgment.           I
disagree with the separate majority’s suggestion that we should ignore any
error because Lomas’ reference to it was not sufficient to “challenge” the issue.
I further disagree with the separate majority that “the difference between the
oral pronouncement and the written judgment constituted only an ambiguity.”
Despite the separate majority’s assertion of an oral pronouncement of “generic
‘help,’” the district court actually plainly stated that the help it was referencing
was as to one “previous condition” and that was “drug treatment.” Further,
the separate majority’s discussion of Lomas’ medical records does not in any
way cure the fact that the special condition was not orally pronounced.
       Based on this court’s acknowledgements on direct appeal, the cases from
sister circuits, the fact that the district court clearly delegated authority by
saying “as deemed necessary” by the probation officer, and the relevant
standard of review, I would conclude that the district court abused its
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discretion by requiring the mental health condition which impermissibly
delegated authority to the probation officer.              Notwithstanding the
impermissible delegation of authority, the district court also abused its
discretion by failing to orally pronounce the mental health condition.
Accordingly, I would vacate the mental health program condition, and remand
to the district court to strike the condition from the written judgment.




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