856 F.3d 368
5th Cir.
2017

UNITED STATES of America, Plaintiff-Appellee v. Christopher GUERRA, Defendant-Appellant

No. 16-41030

United States Court of Appeals, Fifth Circuit.

May 4, 2017

plication for subpoena enforcement-an “overly broad” legal standard that “wrongly swe[pt] under the umbrella of non-disclosure all communications involving an attorney.”

We agree that the trial court appears to have applied an incorrect legal standard. During the show cause hearing, the magistrate judge on several occasions articulated an overly broad definition of attorney-client privilege. For example, during a colloquy with the EEOC regarding the protective order, the magistrate judge stated, “Frankly, anything that comes out of that lawyer‘s mouth is legal advice,” explained that her position was that “anything that‘s communicated from or to [c]ounsel is privileged and [Bower] cannot discuss that in any manner,” and said to counsel, “I‘m telling you that if it‘s communications from or to an attorney, it‘s privileged.” The magistrate judge also approved BDO‘s contention that “the default position should be that if the conversation is with an attorney, a lawyer who has an ethical responsibility, should not invade that privilege” and rejected the EEOC‘s assertion that “it‘s not legal advice when [Bower is] being told to do things that are not ethical, that are not within the bounds of her position.” These statements support the EEOC‘s claim that the magistrate judge granted and determined the scope of the protective order based on an erroneous interpretation of the law.

We do not, however, hold that a protective order is unwarranted, and we leave the decision whether to grant such an order to the trial court. Because the magistrate judge‘s incorrect application of the legal standard may have affected both her analysis of the allegedly disclosed communications and the breadth of the protections she imposed in her order, we remand so that BDO‘s request for protection may be considered under the proper legal standard for determining privilege.

III. CONCLUSION

For the foregoing reasons, we VACATE the district court‘s judgment and REMAND for a determination consistent with this opinion.

Jimmy Eric Pardue, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before JONES, WIENER, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Defendant-Appellant Christopher Guerra pled guilty to illegally transporting an undocumented alien within the United States and was sentenced, within the guidelines, to 41 months of imprisonment followed by three years of supervised release. As a special condition of his supervised release, the district court ordered Guerra to participate in mental health and drug treatment programs “as deemed necessary and approved by the probation officer.” On appeal, Guerra contends that such language impermissibly delegated to the probation officer the court‘s responsibility to determine whether he must participate in mental health and drug treatment. Because Guerra did not object to the challenged release conditions, we review them for plain error. See .

The imposition of supervised release conditions and terms “is a core judicial function that may not be delegated.” (internal quotation marks and citations omitted). However, providing appropriate treatment for prisoners with known mental problems is also a core duty of judges. The PSR reflects that Guerra reported a history of mental health treatment for “depression, anxiety, and Post Traumatic Stress Disorder (PTSD)” as well as his past use of alcohol, marijuana, and crack cocaine. The PSR also revealed past diagnoses of PTSD and Antisocial Personality Disorder. Id. At sentencing, Guerra‘s counsel likewise pointed out his “mental health issues.” Adopting the PSR, the district court imposed two relevant special conditions on Guerra‘s supervised release. First, the court “order[ed] that [Guerra] participate in a drug and[/]or alcohol treatment program as deemed necessary and approved by the probation officer.” Id. Second, the court “impose[d] a mental health condition, which requires [Guerra] to participate in a mental health program as deemed necessary and approved by the probation officer.”

Clearly, based on this history and defense counsel‘s representations to the court, the judge intended that treatment be mandatory and left only the details to the probation officer. Lest there be any doubt, we AFFIRM the sentence as MODIFIED-mental health treatment including substance abuse is imposed, details of treatment to be supervised by the probation office.

AFFIRMED as Modified.

EDITH H. JONES

UNITED STATES CIRCUIT JUDGE