from the United States District Court for the Southern
District of Texas USDC No. 2:16-CR-103-1
JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Barber pleaded guilty to one count of possession of 100
kilograms or more of marijuana with intent to distribute and
received a below-guidelines sentence of twelve months and one
day in prison as well as a three-year term of supervised
release. On appeal, Barber challenges the substance-abuse
treatment special condition of his supervised release.
Because this special condition is ambiguous as to the scope
of the district court's delegation of authority to the
probation office, we VACATE the substance-abuse treatment
special condition and REMAND to the district court for
sentencing hearing, the district court imposed a special
condition of release requiring Barber to "participate in
a drug and/or alcohol treatment program as deemed necessary
and approved by the Probation Office." Barber did not
object. The written judgment included the following provision
regarding drug and alcohol treatment:
The defendant shall participate in a program, inpatient or
outpatient, for the treatment of drug and/or alcohol
addiction, dependency or abuse which may include, but not be
limited to urine, breath, saliva and skin testing to
determine whether the defendant has reverted to the use of
drugs and/or alcohol. Further, the defendant shall
participate as instructed and as deemed necessary by the
probation officer and shall comply with all rules and
regulations of the treatment agency until discharged by the
Program Director with the approval of the probation officer.
The defendant shall further submit to such drug-detection
techniques, in addition to those performed by the treatment
agency, as directed by the probation officer. The defendant
will incur costs associated with such drug/alcohol detection
and treatment, based on ability to pay as determined by the
appealed, challenging the special condition.
review a special condition for plain error where, as here,
the defendant failed to object to the condition when it was
announced at sentencing. United States v. Franklin,
838 F.3d 564, 566 (5th Cir. 2016). Accordingly, Barber must
show a clear or obvious error that affected his substantial
rights. See United States v. Prieto, 801 F.3d 547,
549-50 (5th Cir. 2015); see also Puckett v. United
States, 556 U.S. 129, 135 (2009). If Barber makes such a
showing, we have discretion to remedy the error if it
"seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Prieto,
801 F.3d at 550 (quoting Puckett, 556 U.S. at 135).
argues that the district court committed clear error by
imposing a special condition that was impermissibly ambiguous
as to the scope of authority delegated to the probation
office. Probation officers have power "to manage aspects
of sentences and to supervise probationers and persons on
supervised release with respect to all conditions imposed by
the court." Franklin, 838 F.3d at 567. However,
a district court cannot delegate to a probation officer the
"core judicial function" of imposing a sentence,
"including the terms and conditions of supervised
release." Id. at 568.
we have repeatedly vacated special conditions of release that
used the language "as deemed necessary and approved by
the probation officer" because this language created
ambiguity as to whether the district court had permissibly
delegated authority to decide the details of a sentence's
implementation or had impermissibly delegated the authority
to impose a sentence. See, e.g., United States
v. Yarbrough, No. 15-20236, 2017 WL 405629, at *1, *4
(5th Cir. Jan. 30, 2017); United States v. Alaniz,
671 F.App'x 292, 292 (5th Cir. 2016); Franklin,
838 F.3d at 566; United States v. Lomas, 643
F.App'x 319, 324 (5th Cir. 2016); United States v.
Calhoun, 471 F.App'x 322, 323 (5th Cir. 2012);
United States v. Vasquez, 371 F.App'x 541,
542-43 (5th Cir. 2010); United States v.
Lopez-Muxtay, 344 F.App'x 964, 965 (5th Cir. 2009).
The special condition imposed at the sentencing hearing in
this case uses substantially the same language that these
prior cases deemed ambiguous, requiring Barber to undergo
substance-abuse treatment "as deemed necessary and
approved by the Probation Office." Therefore, it is
the government concedes that the special condition orally
imposed at sentencing was impermissibly ambiguous, but argues
that this error was cured by the written judgment, which the
government says is unambiguous as to the scope of delegation.
To the extent that the written judgment conflicts with the
sentence orally pronounced at sentencing, the district
court's oral pronouncement controls. United States v.
Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. ...