                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-16774                   MAY 25, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 05-00073-CR-3-RV

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

ORRY WESLEY HARMON,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                              (May 25, 2006)


Before ANDERSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Orry Wesley Harmon is appealing a standard condition of his supervised

release, which the district court imposed as part of his sentence following his plea

of guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g). Harmon argues on appeal that the challenged condition (1) delegates a

judicial function to Harmon’s probation officer, and (2) is unconstitutionally vague

or overbroad. For the reasons set forth more fully below, we affirm.

      A federal grand jury returned an indictment, charging Harmon with the

above-referenced firearms offense. In pleading guilty, Harmon agreed that, when a

Santa Rosa County Sheriff’s deputy attempted to initiate a traffic stop on a vehicle

Harmon was driving, and this deputy activated her emergency lights and siren,

Harmon did not immediately stop his vehicle. However, after a second deputy

arrived at the scene, Harmon pulled over and spontaneously stated that everything

illegal in the vehicle belonged to him. In addition to recovering precursors to the

manufacturing of methamphetamine, the deputies recovered from this vehicle a

Smith and Wesson .40 caliber pistol and ammunition for this handgun. Moreover,

Harmon agreed that he previously had been convicted of multiple felonies.

      After accepting this plea of guilty, the court sentenced Harmon to 48

months’ imprisonment and 3 years’ supervised release. The court’s written

sentencing findings included that (1) Harmon was arrested after attempting to



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elude law enforcement officers; and (2) a search of the vehicle he was driving

revealed the pistol, as well as (a) ammunition that he admitted he had removed

from the pistol during the chase, and (b) several items commonly used in the

manufacture of methamphetamine. In explaining why it had found appropriate a

four-level guideline enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5),1 the court

also discussed that, instead of merely possessing a small amount of a controlled

substance for personal use, Harmon was found in possession of List 1 Chemicals

that are commonly used in the manufacture of methamphetamine, he had an

extensive criminal history of prior drug offenses, and he, therefore, likely

possessed the pistol to protect against the theft of the chemicals he intended to use

in manufacturing the methamphetamine.

       Furthermore, the court’s written judgment order contained a section

captioned “Standard Conditions of Supervision,” under which the court ordered

Harmon to “comply with the following standard conditions that have been adopted

by this court.” Standard Condition Thirteen specifically ordered as follows:

       [A]s directed by the probation officer, the defendant shall notify third
       parties of risks that may be occasioned by the defendant’s criminal


       1
          Section 2K2.1(b)(5) provides for an increase in a defendant’s offense level “[i]f the
defendant used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in connection with another felony offense.” See
U.S.S.G. § 2K2.1(b)(5).

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       record or personal history or characteristics and shall permit the
       probation officer to make such notifications and to confirm the
       defendant’s compliance with such notification requirement.

Harmon did not object to any conditions of his supervised release.

       As discussed above, Harmon is arguing on appeal that the district court

plainly erred when it imposed Standard Condition Thirteen because this condition

of supervised release improperly delegates to Harmon’s probation officer the

judicial function of deciding whether, when, and how Harmon must notify “third

parties” of “risks that may be occasioned by [his] criminal record or personal

history or characteristics.” Harmon also contends that this condition is

unconstitutionally vague and overbroad on its face because it fails to identify

which third parties must be given notice, which of his history or characteristics

give rise to the need for the notice, and what such notice must include to be

sufficient. He asserts, therefore, that Standard Condition Thirteen should not be

enforced absent some finding by the district court that it is reasonably necessary to

meet the goals of sentencing, as well as some specification to its application.2




       2
          Harmon concedes in his reply brief that, subsequent to his filing his initial brief, we
decided in United States v. Nash, 438 F.3d 1302, 1306-07 (11th Cir. 2006), that Standard
Condition Thirteen neither delegates a judicial function to the defendant’s probation officer, nor
is it unconstitutionally vague or overbroad. Nevertheless, Harmon contends that our decision in
Nash was flawed and in conflict with our prior decision in United States v. Heath, 419 F.3d
1312, 1314-15 (11th Cir. 2005).

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      We normally review the terms of a defendant’s supervised release for abuse

of discretion. Nash, 438 F.3d at 1304. Where the defendant fails to object in the

district court, however, we will reverse only for plain error. Id. Similarly,

although we review constitutional issues de novo, we will reverse only for plain

error where the defendant fails to raise his constitutional objection in the district

court. Id.

      Because Harmon did not raise in the district court either of his challenges to

Standard Condition 13, we review them only for plain error. See id. “To find

reversible error under the plain error standard, we must conclude that (1) an error

occurred, (2) the error was plain, and (3) the error affected substantial rights.” Id.

(quoting United States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003)). If these

three criteria are met, we may reverse for plain error if the error “seriously affect[s]

the fairness, integrity, or public reputation of judicial proceedings.” Nash, 438

F.3d at 1304 (quoting United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct.

1770, 1776, 123 L.Ed.2d 508 (1993)).

      In Heath, we examined a district court’s modification of a condition of a

defendant’s supervised release, whereby the court ordered that the defendant “shall

participate if and as directed by the probation office in such mental health

programs as recommended by a psychiatrist or psychologist . . ..” See Heath, 418



                                            5
F.3d at 1314. We determined that this special condition was an improper

delegation of a judicial function, in violation of Article III of the United States

Constitution,3 because, in imposing this condition, “[t]he district court delegated to

the probation officer not only the administrative supervision of [the defendant’s]

participation in the mental health program, but also the authority to make the

ultimate decision of whether [the defendant] had to participate at all.” See id. at

1315. Additionally, we rejected the government’s argument that this error was not

plain because this error affected the defendant’s substantial rights and “[a]

violation of Article III through the improper delegation of a judicial function meets

[the fourth criteria of the plain-error] standard.” See id. at 1316.

       On the other hand, in Nash, we recently explained that we “ha[d] upheld

conditions of supervised release that unequivocally impose a requirement on the

defendant, but subject the defendant to the ‘approval’ or ‘direction’ of a probation

officer.” See Nash, 438 F.3d at 1305. We discussed that, because probation

officers “play a vital role in effectuating the sentences imposed by district courts,”

courts may delegate duties to probations officers “to support judicial functions, as

long as a judicial officer retains and exercises ultimate responsibility. See id.



       3
          Article III specifically provides that “[t]he judicial Power of the United States, shall be
vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.” See U.S. Const., Art. III, § 1.

                                                  6
(quotation omitted). We also noted that, “[w]here the court makes the

determination of whether a defendant must abide by a condition . . . it is

permissible to delegate to the probation officer the details of where and when the

condition will be satisfied.” Id. (emphasis in original) (quotation omitted).

Applying these principles, we concluded in Nash that Standard Condition Thirteen,

which directs the probation officer to oversee the enforcement of the defendant’s

supervised release, did not delegate the “ultimate responsibility” of determining his

sentence to the unfettered discretion of the probation officer, and the district court,

therefore, did not plainly err in imposing it. See id. at 1305-06.

      In Nash, we also examined the constitutional challenge at issue in the instant

appeal, that is, that this standard condition is unconstitutionally vague and

overbroad because it does not state the risks, third parties, or history and

characteristics that would, otherwise, guide a probation officer in the enforcement

of the condition. See id. at 1306-07. We discussed that “[c]onditions of

supervised release are not vague and overbroad when they are ‘undeniably related’

to the sentencing factors [in 18 U.S.C. § 3553(a)].” See id. at 1307 (quoting

United States v. Taylor, 338 F.3d 1280, 1285 (11th Cir. 2003)). We also explained

that the factors that the district court may consider when imposing a sentence

include “the nature and circumstances of the offense and the history and



                                           7
characteristics of the defendant” and the need “to protect the public from further

crimes of the defendant.” See Nash, 438 F.3d at 1307 (quoting 18 U.S.C.

§ 3553(a)(1); (a)(2)(C)). We concluded in Nash that Standard Condition Thirteen

was “undeniably related” to the defendant’s current conviction, previous

convictions, restitution obligation, along with the need to protect the public from

Nash’s financial fraud.

      Standard Condition Thirteen in the instant appeal is indistinguishable from

the condition of release that we upheld in Nash. Thus, we similarly conclude that

this standard condition does not relegate the “ultimate responsibility” of

determining Harmon’s sentence to the unfettered discretion of the probation

officer. See id. at 1306. Furthermore, similar to the facts in Nash, this standard

condition is “undeniably related” to the sentencing factors in § 3553(a) and, thus,

not unconstitutionally vague or overbroad. See id. at 1307. As the district court

either explicitly or implicitly noted in its sentencing findings, Harmon was found

in possession of List 1 Chemicals that are commonly used in the manufacture of

methamphetamine, he had an extensive criminal history of prior drug offenses, and

he posed a threat to the public. See 18 U.S.C. § 3553(a)(1) (“the nature and

circumstances of the offense and the history and characteristics of the defendant”);




                                          8
18 U.S.C. § (a)(2)(C) (“the need for the sentence imposed . . . to protect the public

from further crimes of the defendant”).

      Accordingly, we conclude that the district court did not err, plainly or

otherwise, in setting Standard Condition Thirteen in imposing Harmon’s

conditions of supervised release. We, therefore, affirm.

      AFFIRMED.




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