Lead Opinion
Dаniel Lomas, III, appeals the district court’s reimposition of special conditions
FACTS AND PROCEDURAL HISTORY
Daniel Lomas, III, pleaded guilty in 2008 to conspiracy to transport an alien for the purpose of commercial advantage and private financial gain under 8 U.S.C. §§ 1324(a)(l)(A)(ii), (iii), & (v)(I). He was sentenced to twenty-four (24) months imprisonment, to be followed by three years of supervised release. Among the special conditions of supervised release, Lomas was required to participate in a drug treatment program, “required tо participate in a mental health program as deemed necessary and approved by the probation officer,” and ordered to “enroll and participate in an educational program designed to receive a high school diploma or its equivaléncy.” The term of supervised release began on October 9,2009.
On March 2012, the United States Probation Office (Probation) petitioned the court to revoke Lomas’ supervised release, alleging a law violation from traffic violations, two positive drug tests, and failure to report. In July 2012, Lomas pleaded true to committing the four supervised-release violations. The district court revoked Lomas’ supervised release and sentenced him to seven months imprisonment with an additional term of supervised release of twenty nine (29) months. The written judgment omitted the educational cоndition, but contained the same drug-treatment and mental-health conditions as originally required.
In July 2013, Probation again petitioned the district court regarding a supervised released violation. On September 6, 2013, Lomas pleaded true to one violation for failing to participate as directed in an alcohol and drug treatment program. As Lo-mas was gainfully employed and had tested clean, the district court removed the drug-trеatment requirement, but admonished Lomas to “comply in the future with the requirements” of his supervised release and said “the other terms of supervised release will continue, which will mean you will continue to be tested from time to time.” The written order said that the court had “reinstated all previously imposed conditions and waived drug treatment at this time,” but did not specify the conditions.
On March 10, 2014, Probation petitioned the court to revoke Lomas’ term of supervised release, alleging two law violations of criminal trespass, one positive drug test, and later a superseding allegation of a fourth violation involving an assault. After a hearing in which Lomas’ mental health condition was discussed at length, Lomas pleaded true to the positive drug test violation and the court revoked his supervised release. The other alleged violations were dismissed.
The district court sеntenced Lomas to a term of imprisonment of eight months, to be followed by a twenty-one (21) month term of supervised release. Specifically, the court said that “the previous condition remained [sic] in effect with respect to drug treatment and help as may be determined appropriate by the probation office,
Thereafter, Lomas filed this appeal. On October 27, 2014, counsel filed a brief and a motion to withdraw pursuant to Anders v. California,
STANDARD OF REVIEW
“[A] defendant has a constitutional right to be present at sentencing.” United States v. Bigelow,
DISCUSSION
I. The educational program condition.
Lomas asserts that the district court abused its discretion by including the educational program condition in the written judgment because it was not orally pronounced or even mentioned during the sentencing hearing. Further, he asserts that this condition should be struck from the judgment.
The Government asserts that the court should review for plain error. However, the Government offers no persuasive authority to support such a proposition. The Government argues in the alternative that Lomas cannot show that the district court abused its discretion by failing to announce the condition.
This court has held that the inclusion of “mandatory, standard, or recommended” conditions of supervised release in the written judgment, even if the conditions were not orally stated at sentencing, does not create a conflict between the written and oral judgments. Torres-Aguilar,
Additionally, the special condition here was not reimposed in the written judgment following Lomas’ 2012 revocation hearing — despite the district court’s oral pronouncement that the “[sjpecial conditions of recommenced supervised release will be [sic] same as those that had previously been in effect.”
The record reflects that the written judgment includes a special condition that was not orally imposed and could not be clarified by reference to conditions of supervision set forth elsewhere. See Torres-Aguilar,
For these reasons, we conclude that the district court abused its discretion by including the educational program special condition in the written judgment. Thus, we vacate the educational program condition and remand to the distriсt court to strike the condition from the written judgment.
II. The mental health program condition.-
Lomas also challenges the mental-health special condition, on the ground that its wording impermissibly delegates to the probation officer the decision whether he must undergo mental-health treatment. Lomas has made this argument before: in 2008, when he appealed his original sentence, which contained an identically worded mental-health special condition. See United States v. Lomas (Lomas I),
This time around, Lomas argues that review should be for abuse of discretion because the district court “failed to mention the [mental-health] condition while
Here, it is close question whether the district court’s oral pronouncement of sentence at the revocation hearing provided Lomas with adequate “opportunity ... to consider, comment on, or object to the special condition.” United States v. Bigelow,
We also note that the predicate for imposing the condition — that “the court has reason to bеlieve that the defendant is in need of psychological or psychiatric treatment” — was satisfied. U.S.S.G. § 5D1.3(d)(5). At the revocation hearing, Lomas’s counsel challenged the court’s review of Lomas’s medical records from the Bureau of Prisons. (ROA.194-99.) The court explained that it had ordered the records in response to concerns raised by defense counsel about Lomas’s medical treatment, and for the purpose of verifying that the Bureau of Prisons was providing Lomas with “reasonáble access for medical evaluation and appropriate prescribed medications for the treatment of bipolar [disjorder.” (ROA.196.) Later in the hearing, Lomas’s counsel argued 'that Lomas’s bipolar disorder diagnosis helps to explain his struggle to comply with the drug-treatment conditions of his supervised release. (ROA.202;) Finally, at the end of sentencing, the court instructed Lomas to “pay attention to the doctors’ diagnosis that your lawyer has very well pointed out. And do what those doctors say, and if they say you should have prescription medication, then take that. Understand that they’re trained in .trying to help you, too.” (ROA.208-09.) In short, concern for Lo-mas’s mental health, from both court and counsel, ran through the entire hearing. These exchanges make clear that the court was familiar with Lomas’s mental-hеalth history and had “reason to believe” .that Lomas was in need of further psychiatric treatment. U.S.S.G. § 5D1.3(d)(5).
It is against this backdrop that we must read the court’s oral pronouncement about supervision:
1 And it’s the Court’s hope, by providing adequate punishment, which is incremental to his previous revocation, slight*324 ly, and by giving him more opportunity for supervision — And I want to say, also, the previous condition remained in effect with respect to drug treatmеnt and help as may be determined appropriate by the probation office, as I have previously required.
(ROA.207 (emphasis added).) Given the context just described — Lomas’s long history of consistently receiving the mental health condition, and the clear concern for Lomas’s mental health demonstrated by both court and counsel during the hearing — the court’s mention of “help” can plausibly be read to refer to the previously, and сonsistently, imposed mental-health condition.
Even so, it is a close question whether the district court’s single mention of “help” was sufficient to provide Lomas with adequate “opportunity at sentencing to consider, comment on, or object to” the version of the mental-health condition that the district court ultimately imposed. Bigelow,
Lomas argues that the district court im-permissibly delegated its judicial authority by leaving his participation in a mental-health program to the discretion of his probation officer. Although probation officers have broad power to supervise probationers and “perform any other duty that the court may designate,” 18 U.S.C. § 3603(10), the type of duty that a court may delegate is limited by Article III of the Constitution, see United States v. Johnson,
Here, the mental-health condition imposed in Lomas’s written judgment provided, in relevant part: “The defendant is required to participate in a mental health program as deemed necessary and approved by the probation officer.” (ROA.146.) Coupled with the “extensive evidence of [Lomas’s] mental illness,” United States v. Allen,
2 If the district court intends that the therapy be mandatory but leaves a variety of details, including the selection of a therapy 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 therapy to the discretion of the probation officer, such a condition would constitute. an impermissible delegation of judicial authority and should not be included.
M
CONCLUSION
For the reasons stated herein, we VACATE the educational program and mental health program conditions of supervised release and REMAND to the district court for resentencing.
Notes
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not he
. We have been informed by the Federal Public Defender that Lomas recently violated a separate condition and the educational program condition was not reimposed. Thus, this issue would be moot.
. Lomas does not challenge the inclusion of the mental health condition on the ground that the district court's alleged omission constitutes a “conflict” with the written judgment requiring striking. See United States v. Martinez,
. We caution, however, that our finding of ambiguity is limited to the facts of this case, and should be viewed as the exception, not the rule. In most instances, this sort of discretionary language — apparently used with some frequency, see, e.g., United States v. Villarreal,
Concurrence Opinion
GRAVES, Circuit Judge, concurring in part as to issue II:
I disagree with the separate majority’s conclusion that the mental health condition was ambiguous. On reimposition of Lo-mas’ supervision, the district court’s written judgment included the special condition that required Lomas “to participate in a mental health program as deemed necessary and approved by the probation officеr.” The district court imposed a mental health program condition in Lomas’ initial sentence and at his prior revocation hearing.
On direct appeal, Lomas argued that the district court reversibly erred by delegating to the probation officer the authority to decide whether he should undergo mental health treatment. United States v. Lomas,
This court has considered arguments that conditions are substantively unreason
The district court here did not orally impose on reimposition of supervised release the special condition that Lomas enroll in a mental heаlth treatment program “as deemed necessary and approved by the probation officer.” That special condition appears only in the written judgment. I disagree with the separate majority’s suggestion that we should ignore any error because Lomas’ reference to it was not sufficient to “challenge” the issue. I further disagree with the separate majority that “the difference between the oral pronouncement and the written judgment constituted only an ambiguity.” Despite the separate majority’s assertion of an oral pronouncement of “generic ‘help,’ ” the district court actually plainly stated that the help it was referencing was as to one “previous condition” and that was “drug treatment.” Further, the separate majority’s discussion of Lomas’ medical records does not in any way cure the fact that the speciаl condition was not orally pronounced.
Based on this court’s acknowledgements on direct appeal, the cases from sister circuits, the fact that the district court clearly delegated authority by saying “as deemed necessary” by the probation officer, and the relevant standard of review, I would conclude that the district court abused its discretion by requiring the mental health condition which impermissibly delegated authority to the probation officer. Notwithstanding the impermissible delegation of authority, the district court also abused its discretion by failing to orally pronounce the mental health condition. Accordingly, I would vacate the mental health program condition, and remand to the district court to strike the condition from the written judgment.
. Specifically, this court said:
The Eleventh Circuit has found that an impermissible delegation of judicial authority occurs when a court gives "the probation officer the authority to decide whether a defendant will participate in a treatment program,” as opposed to authority over the implementation of the treatment; United States v. Heath,419 F.3d 1312 , 1315 (11th Cir.2005); see also United States v. Pruden,398 F.3d 241 , 250-51 (3d Cir.2005) (mental health treatment); United States v. Peterson,248 F.3d 79 , 85 (2d Cir.2001); United States v. Kent,209 F.3d 1073 , 1078-79 (8th Cir.2000) (mental health treatment); United States v. Figuereo,404 F.3d 537 , 542-43 (1st Cir.2005) (drug testing); United States v. Stephens,424 F.3d 876 , 882-84 (9th Cir.2005) (drug testing); United States v. Sines,303 F.3d 793 , 799 (7th Cir.2002) (sex-offender treatment). One of our sister circuits concluded that every circuit court to review a sentence that gave to a probation officer the authority to decide whether a defendant will participate in a treatment*326 program found it unconstitutional. Heath, 419 F.3dat 1315, Id.