UNITED STATES of America, Plaintiff-Appellee v. Misty Dawn KELLEY, Defendant-Appellant
No. 16-11234
United States Court of Appeals, Fifth Circuit.
Filed September 15, 2017
695 F. App‘x 384
Misty Dawn Kelley, Pro Se
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Misty Dawn Kelley has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Kelley has filed a response. The record is not sufficiently developed to allow us to make a fair evaluation of Kelley‘s claims of ineffective assistance of counsel; we therefore decline to consider the claims without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel‘s brief and the relevant portions of the record reflected therein, as well as Kelley‘s response. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
UNITED STATES of America, Plaintiff-Appellee v. Adrian Vivian MORENO, also known as Adrian Vivian Palomares, Defendant-Appellant
No. 16-41357 Summary Calendar
United States Court of Appeals, Fifth Circuit.
Filed September 15, 2017
695 F. App‘x 384
John Andrew Kuchera, Waco, TX, for Defendant-Appellant
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Adrian Vivian Moreno pleaded guilty to possession with intent to distribute 50 kilograms or more of marijuana. The district court sentenced him to 87 months of imprisonment, to be followed by 3 years of supervised release. As explained by the district court, Moreno‘s supervised release included a substance abuse treatment condition, which provided that he “participate
Because Moreno did not raise his challenge in the district court, our review is for plain error. United States v. Franklin, 838 F.3d 564, 566 (5th Cir. 2016). The imposition of supervised release conditions and terms “is a core judicial function that cannot be delegated.” Id. at 568 (internal citation and quotation marks omitted). Moreno has shown clear or obvious error because the language of the challenged condition “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.” United States v. Barber, 865 F.3d 837, 839-41 (5th Cir. 2017).
Additionally, we conclude that this error affected Moreno‘s substantial rights because it involves “his right to be sentenced by an Article III judge.” Id. at 839-41. Finally, we exercise our discretion to correct the error, in light of our vigilance in preserving “the judiciary‘s exclusive authority to impose sentences.” Id. at 840-42 (internal citation and quotation marks omitted). Consequently, we VACATE the challenged condition of release and REMAND to the district court for resentencing, with the clarifying instruction we offered in Franklin, 838 F.3d at 568:
If the district court intends that the [treatment] be mandatory but leaves a variety of details, including the selection of a [treatment] 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 [treatment] to the discretion of the probation officer, such a condition would constitute an impermissible delegation of judicial authority and should not be included.