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

                                                                            FILED
                                                                         October 20, 2008

                                       No. 08-40056                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

RUBEN MUNGIA, JR

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:07-CR-464-1


Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ruben Mungia, Jr., pled guilty to possession with intent to distribute more
than 50 kilograms of marijuana and was sentenced to serve 78 months in prison,
plus three years of supervised release. As special conditions of his release, the
district judge ordered Mungia to receive mental health treatment, vocational
training, and anger management counseling “as deemed necessary by the
probation officer.” Mungia appeals, arguing that the district judge unlawfully



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-40056

and unconstitutionally delegated his statutory and Article III authority to
determine sentencing conditions to a non-judicial officer.
      Because Mungia did not object at sentencing, this court reviews for plain
error only. Under the plain error standard of review, reversal is not required
unless there is (1) an error; (2) that is clear or obvious; and (3) that affects the
defendant’s substantial rights. United States v. Rojas-Gutierrez, 510 F.3d 545,
548 (5th Cir. 2007). Even then, we retain discretion whether to correct the error
and, generally, will do so only if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. We determine whether an alleged
error is plain by reference to existing law at the time of appeal. See, e.g., United
States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir. 2006) (citing Johnson v.
United States, 520 U.S. 461 (1997)).
      Mungia cites primarily United States v. Albro, 32 F.3d 173 (5th Cir. 1994),
to support his position that the district judge plainly erred by delegating his
authority to determine special conditions of release to a probation officer. In
that case, Albro was convicted of bank fraud and ordered to pay restitution.
Although the district judge himself determined the amount to be paid, he
delegated the “manner of payment” to a probation officer. This court agreed with
Albro that “‘the amounts to be paid and the manner of payment should be recited
in the [sentencing] order, rather than delegating these details to the probation
officer.’” Id. at 174 (citations omitted). The court found plain error and reversed.
      Mungia concedes, however, that this court has since distinguished Albro
in cases similar to his own. In United States v. Warden, for example, this court
held that it was not plain error to allow a probation officer to determine a
defendant’s ability to pay for drug treatment; Albro concerned “restitution
payments,” this court wrote, not the costs of drug treatment. 291 F.3d 363, 365-
66 (5th Cir. 2002). In United States v. Acevedo, a case similar to Mungia’s, this
court held that it was not plain error to delegate to a probation officer the

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authority to determine whether and to what extent the defendant should
participate in a drug treatment program. 157 F.App’x 713 (5th Cir. 2005)
(unpublished per curiam opinion). The same result was reached in United States
v. Vega, 332 F.3d 849 (5th Cir. 2003) (not plain error to allow probation officer
to determine the length of defendant’s drug treatment).
      We find that in the light of our opinions in Warden, Acevedo, and Vega,
there could be no plain error here because our precedents do not plainly require
the result Mungia urges. Accordingly, Mungia’s sentence is AFFIRMED.




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