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

                                                 FILED
                                                              September 22, 2009
                                No. 08-41179
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

v.

MARIO YOVANI LOPEZ-MUXTAY,

                                           Defendant-Appellant.


                  Appeal from the United States District Court
               for the Southern District of Texas, Laredo Division
                          USDC No. 5:08-CR-262-ALL


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Mario Yovani Lopez-Muxtay pleaded guilty, without a plea agreement, to
illegal reentry. The district court sentenced Lopez to 41 months of imprisonment
and three years of supervised release. The district court also ordered that Lopez
undergo mental health counseling while incarcerated and on supervised release.
Lopez’s appeal concerns this mental health special condition of supervised
release.



      *
      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should not be published and is not precedent except under the limited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. 08-41179

      At Lopez’s sentencing hearing, the district court stated, “While
incarcerated, it is recommended to the Bureau of Prison [sic] that the defendant
undergo mental health counseling in regard to the matter reported at paragraph
31 of the [PSR], and that should be also mental health programming as a
condition of his supervised release as well.” This mental health requirement is
included in the written judgment, which orders that while on supervised release,
Lopez “is required to participate in a mental health program as deemed
necessary and approved by the probation officer.” (emphasis added).
      Lopez argues that this italicized language violates Article III of the
Constitution because it impermissibly grants Lopez’s probation officer the
discretion to decide if Lopez should undergo mental health treatment while on
supervised release. The Government, however, asserts that the written sentence
clarifies the oral sentence and only grants Lopez’s probation officer the authority
to implement the district court’s order of mental health treatment as a special
condition of Lopez’s supervised release.
      The district court’s written judgment is unclear regarding whether the
district court intended to grant Lopez’s probation officer the authority not only
to implement the condition but to determine whether Lopez should or should not
undergo mental health treatment while on supervised release. Therefore, we
conclude that remanding for clarification would serve the interests of judicial
economy and fairness to all concerned parties. Accordingly, Lopez’s sentence is
vacated and the case is remanded for resentencing consistent with this opinion.
See United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006). We express no
opinion on the proper resolution of this matter.
      SENTENCE VACATED; REMANDED FOR RESENTENCING.




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