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United States v. Barber

United States Court of Appeals, Fifth Circuit

August 3, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JERMAINE MARTEZ BARBER, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas USDC No. 2:16-CR-103-1

          Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District Judge. [*]

          PER CURIAM:

         Jermaine 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 resentencing.

         I.

         At the 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 probation officer.

         Barber appealed, challenging the special condition.

         II.

         We 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).

         A.

         Barber 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.

         Accordingly, 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 impermissibly ambiguous.

         Indeed, 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. ...


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