     Case: 19-10423      Document: 00515255749         Page: 1    Date Filed: 01/02/2020




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

                                                                                  FILED
                                    No. 19-10423                            January 2, 2020
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALTON SIMPSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-27-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Alton Simpson was convicted of conspiracy to possess with intent to
distribute and to distribute crack cocaine.            He now appeals the sentence
imposed following the revocation of his supervised release.                    Specifically,
Simpson challenges four of the standard conditions of supervised release
included in the original written judgment, which the district court reimposed




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10423       Document: 00515255749    Page: 2    Date Filed: 01/02/2020


                                  No. 19-10423

following revocation.       He maintains that these conditions constitute
impermissible delegations of judicial authority to the probation officer.
      Because Simpson failed to object to the reimposition of the supervised
release terms, we review his claim for plain error. See United States v. Barber,
865 F.3d 837, 839 (5th Cir. 2017). To establish plain error, Simpson must show
a forfeited error that is clear or obvious that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings. Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1905 (2018) (internal quotation marks and
citation omitted).
      The imposition of supervised release conditions and terms “is a core
judicial function that cannot be delegated.” United States v. Franklin, 838 F.3d
564, 568 (5th Cir. 2016) (internal quotation marks and citations omitted).
Simpson argues that the district court erred by reimposing standard conditions
of supervised release requiring him to participate in programs for substance
abuse treatment, mental health treatment, cognitive behavioral treatment,
and workforce development “if deemed necessary by the probation officer.” We
have held that such language “creates an ambiguity regarding whether the
district court intended to delegate authority not only to implement treatment
but to decide whether treatment was needed.” Id. (internal quotation marks
and citation omitted).
      Simpson has shown a clear and obvious error affecting his substantial
rights. Id.; see Puckett, 556 U.S. at 135. Additionally, we conclude that this
error “seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings” because it involves core judicial functions. Puckett, 556 U.S. at
135; see Barber, 865 F.3d at 841. Consequently, we will exercise our discretion



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                                 No. 19-10423

to correct the error by vacating the challenged standard conditions and
remanding for resentencing.        Accordingly, we VACATE the standard
conditions requiring substance abuse treatment, mental health treatment,
cognitive behavioral treatment, and workforce development training and
REMAND to the district court for resentencing, with the following clarifying
instruction:


      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.


Franklin, 838 F.3d at 568 (citation omitted).




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