     Case: 16-41386      Document: 00513977572         Page: 1    Date Filed: 05/03/2017




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

                                    No. 16-41386                                FILED
                                  Summary Calendar                           May 3, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAN JUANITA DAVILA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-525-2


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       San Juanita Davila pleaded guilty to one count of conspiracy to transport
an illegal alien and received a guidelines sentence of 15 months in prison, to
be followed by a three-year term of supervised release. The district court
imposed a special condition of release requiring Davila to participate in a
substance abuse treatment program “as deemed necessary and approved by
the Probation Office.” Davila now contends that the language of this condition


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41386     Document: 00513977572    Page: 2    Date Filed: 05/03/2017


                                 No. 16-41386

impermissibly delegated to the probation officer the court’s responsibility to
determine whether she must participate in treatment. Because Davila did not
raise this argument in the district court, we review for plain error. See Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v. Scott, 821 F.3d 562,
570 (5th Cir. 2016).
      The imposition of supervised release conditions and terms “is a core
judicial function that may not be delegated.” United States v. Franklin, 838
F.3d 564, 568 (5th Cir. 2016) (internal quotation marks and citations omitted).
Davila has shown a clear or obvious error affecting her substantial rights
because the language of the challenged special condition “creates an ambiguity
regarding whether the district court intended to delegate authority [to the
probation officer] not only to implement treatment but to decide whether
treatment was needed.” 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 Franklin, 838 F.3d at 568. Consequently, we will
exercise our discretion to correct the error by vacating the challenged special
condition and remanding for resentencing.       Accordingly, we VACATE the
substance abuse treatment special condition 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.




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