UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH DALE WALKER, Defendant - Appellant.
No. 22-5076
United States Court of Appeals, Tenth Circuit
October 30, 2023
PUBLISH
Keith J. Hilzendeger, Assistant Federal Public Defender (Jon M. Sands, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, District of Arizona, Phoenix, Arizona for Defendant - Appellant.
Elizabeth M. Dick, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, and Leena Alam, Assistant United States Attorney, on the brief), Office of the United States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff - Appellee.
Before HARTZ, KELLY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
I. BACKGROUND
A. Factual History1
On July 14, 2021, Mr. Walker was at the home of his adult niece, Victoria Dirickson, in Collinsville, Oklahoma, where he lived “off and on.” ROA, Vol. III at 100. Mr. Walker asked Ms. Dirickson for a set of house keys. She declined because “[i]t was [her] only day off, and [she] really didn‘t feel like getting out and making a copy” of the keys. Id. at 102. Mr. Walker became “[r]eally aggravated,” and an argument ensued in the living room. Id.
Ms. Dirickson was sitting in a recliner when Mr. Walker “headbutted” her, causing the recliner to tip back. Id. at 105. Ms. Dirickson “hit [her] head on the side table that was on the side of the couch.” Id. Then, while “on top of” Ms. Dirickson, Mr. Walker “tried gouging [her] eyes out” with his thumbs. Id. He also choked her and grabbed her hair. Ms. Dirickson‘s breath “was cut very short to where [her] vision was starting to get a little blurry.” Id. at 108. During the fight, the necklace Ms. Dirickson was wearing broke, “le[aving] a mark on [her] neck.” Id. at 105. The altercation ended when Ms. Dirickson‘s boyfriend pulled Mr. Walker off of her.
B. Procedural History
We provide a brief procedural overview here and later discuss additional procedural details as relevant to our analysis.
A grand jury in the Northern District of Oklahoma indicted Mr. Walker on one count of assault resulting in serious bodily injury within Indian country, in violation of
At sentencing, the district court applied a two-level upward variance, imposed an 84-month sentence, and included a special anger management condition for his supervised release. The court also denied Mr. Walker‘s request that his sentence run concurrently with an anticipated state-court sentence.
Mr. Walker timely appealed.
II. DISCUSSION
On appeal, Mr. Walker argues that the district court:
- Lacked subject matter jurisdiction because the court erred in admitting (1) Ms. Dirickson‘s Certificate of Degree of Indian Blood (“CDIB“) and
tribal registration cards; and (2) Ms. Dirickson‘s and Sergeant Travis Linzy‘s testimony regarding Mr. Walker‘s status as a non-Indian. - Abused its discretion in admitting the testimony of a medical expert, Dr. William Smock, because (1) the Government‘s expert disclosure under
Federal Rule of Criminal Procedure 16 was untimely and the testimony therefore should have been excluded as a sanction, and (2) Dr. Smock‘s testimony improperly vouched for Ms. Dirickson‘s credibility. - Abused its discretion in failing to give a unanimity-of-means jury instruction.
- Abused its discretion in failing to consider sentencing disparities arising from a possible sentence in a state case.
- Plainly erred in imposing an anger management condition of supervised release due to (1) insufficient notice, and (2) improper delegation of authority to the Probation Office.
We reject these arguments and affirm.
A. Subject Matter Jurisdiction
Mr. Walker argues the district court erred in admitting evidence that the Government used to show that Ms. Dirickson is an Indian and Mr. Walker is a non-Indian. He further argues that without this evidence, the court would have lacked subject matter jurisdiction under
First,
Mr. Walker was prosecuted under
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
Section § 1152 applies when “the defendant is an Indian and the victim is a non-Indian, or vice-versa.” United States v. Prentiss, 256 F.3d 971, 974 (10th Cir. 2001) (en banc), overruled in part on other grounds by United States v. Cotton, 535 U.S. 625 (2002); see also 1 Cohen‘s Handbook of Federal Indian Law § 9.02[1][d], at 744 (Nell Jessup Newton ed., 2012 ed.); Robert N. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 526-27 (1976).
In United States v. Prentiss, our en banc court held that “the Indian/non-Indian statuses of the victim and the defendant are essential elements of [a] crime” under
As we discuss below, the district court did not abuse its discretion in admitting evidence regarding Ms. Dirickson‘s Indian status and Mr. Walker‘s non-Indian status. But, under Prentiss, even if the district court erred, excluding this evidence would not have stripped the district court of subject matter jurisdiction.
Mr. Walker argues the district court erred in admitting evidence and testimony concerning Ms. Dirickson‘s Indian status and Mr. Walker‘s non-Indian status.
“A district court has broad discretion to determine the admissibility of evidence, and we review the district court‘s ruling for abuse of discretion.” United States v. Merritt, 961 F.3d 1105, 1111 (10th Cir. 2020) (citations omitted). “Under this standard, we will not disturb a trial court‘s decision unless we have a definite and firm conviction that the trial court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. (alterations and quotations omitted). We discern no error in the district court‘s evidentiary rulings.
a. Additional procedural background
i. Evidence and testimony regarding Ms. Dirickson‘s Indian status
At trial, Ms. Dirickson testified that she was a member of the Cherokee Nation and that she carried a “CDIB card” (Certificate of Degree of Indian Blood) in her wallet. ROA, Vol. III at 95. She was then shown her CDIB card and her Cherokee Nation registration card, which she identified, and the Government moved to enter the two cards into evidence. Mr. Walker objected on authentication grounds. The district court overruled the objection.
ii. Testimony regarding Mr. Walker‘s non-Indian status
Ms. Dirickson also testified she was not “aware of” Mr. Walker‘s membership in an Indian tribe. Id. at 97. Sergeant Travis Linzy, a police officer with the City of Collinsville, testified he had prior contacts with Mr. Walker and that Mr. Walker
b. Legal background
i. Authentication of evidence
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
ii. Admission of testimony based on personal knowledge
“This standard is not difficult to meet.” United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014). A court should exclude testimony for lack of personal knowledge “only if in the proper exercise of the trial court‘s discretion it finds that the witness could not have actually perceived or observed that which he testifies to.” Id. (quotations omitted); see also 1 Kenneth S. Broun et al., McCormick on Evidence § 10 n.7 (8th ed. 2022) (“[T]he trial judge plays only a limited, screening role, merely deciding whether the foundational testimony would permit a rational juror to find that the witness possesses the firsthand knowledge.“).
“Accordingly, if a rational juror could conclude based on a witness‘s testimony that
c. Analysis
i. Proof of Ms. Dirickson‘s Indian status
The district court did not err in admitting Ms. Dirickson‘s CDIB card because the card was self-authenticating under Rule 902. Any error in the admission of Ms. Dirickson‘s Cherokee Nation Registration Card was harmless.
1) Certificate of Degree of Indian Blood Card
Suppl. ROA, Vol. I at 1.
Ms. Dirickson‘s CDIB card contained both “a seal purporting to be that of” a “department” of the United States—the Department of the Interior, at top left—and “a signature purporting to be an execution or attestation,” at bottom right. Fed. R.
2) Cherokee Nation Registration Card
Suppl. ROA, Vol. I at 2.
A self-authenticating document must contain “a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; . . . a political subdivision of any of these entities; or a department, agency, or officer of any entity named above.”
Ms. Dirickson‘s Cherokee Nation registration card did not contain a seal. It therefore cannot be self-authenticating under Rule 902. Even if it had contained a seal, the document would still not be self-authenticating because tribal governments are not listed among those entities whose seals satisfy Rule 902. See id. The Government argues that Ms. Dirickson‘s testimony was sufficient to authenticate the
“[I]f a party objects to a district court‘s [evidentiary] ruling based solely on the Federal Rules of Evidence, we review for nonconstitutional harmless error.” United States v. Ledford, 443 F.3d 702, 707 (10th Cir. 2005), abrogated on other grounds by Henderson v. United States, 575 U.S. 622 (2015). “In non-constitutional harmless error cases, the government bears the burden of demonstrating, by a preponderance of the evidence, that the substantial rights of the defendant were not affected.” United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005). The admission of the Cherokee Nation card was harmless because Ms. Dirickson‘s CDIB card and her own testimony were sufficient to prove her enrollment in a tribe. See Aplee. Br. at 30.
“To find that a person is an Indian the [jury] must first make factual findings that the person has some Indian blood and, second, that the person is recognized as an Indian by a tribe or by the federal government.” United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) (quotations omitted). Ms. Dirickson‘s CDIB card was sufficient for the jury to determine that she satisfied the first element of Indian status: “some Indian blood.” Id.
Ms. Dirickson‘s testimony to her enrollment in a federally recognized tribe was sufficient for the jury to determine that Ms. Dirickson satisfied the second element. See ROA, Vol. III at 95 (“Q: Are you a member of any federal recognized tribes? [Ms. Dirickson]: Cherokee.“). The Cherokee Nation registration card was duplicative of this testimony.
ii. Proof of Mr. Walker‘s non-Indian status
Mr. Walker argues the district court erred in admitting testimony from Ms. Dirickson and Sergeant Linzy as to Mr. Walker‘s non-Indian status “because it was not shown that either had first-hand knowledge of his Indian status.” Aplt. Br. at 38. The district court did not plainly err (as to Ms. Dirickson) or abuse its discretion (as to Sergeant Linzy) in admitting this testimony.
1) Ms. Dirickson‘s testimony
Ms. Dirickson testified that she was “not . . . aware of” Mr. Walker‘s membership in a tribe. ROA, Vol. III at 97. Because Mr. Walker did not object to this testimony, we review for plain error. Plain error review requires Mr. Walker “to establish that (1) the district court committed error; (2) the error was plain—that is, it was obvious under current well-settled law; (3) the error affected the defendant‘s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Booker, 63 F.4th 1254, 1258 (10th Cir. 2023) (alterations and quotations omitted).
There was no plain error because there was no error. Mr. Walker contends that Ms. Dirickson had no firsthand knowledge of his Indian status, but Ms. Dirickson‘s testimony was within the ambit of her reasonable personal knowledge. She testified
2) Sergeant Linzy‘s testimony
At trial, Sergeant Linzy was asked if “[he was] aware if [Mr. Walker was] a member of any federally recognized Native American tribe.” ROA, Vol. III at 195. He answered, “As of the night that I took the report, he was not.” Id. Sergeant Linzy also said he was cross-deputized with the “Cherokee Marshal service,” id. at 183, and had “legal authority to enforce tribal laws,” id. at 184. He testified that McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), “changed how [he] approached an investigation” because he now must “inquire if anyone is a member of any federally recognized tribe.” Id. at 184-85.6 He also testified that he was “familiar” with Mr. Walker and that he had “prior contacts with him.” Id. at 193–94.
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Because the district court properly exercised subject-matter jurisdiction and did not abuse its discretion in admitting evidence related to Ms. Dirickson‘s Indian status and Mr. Walker‘s non-Indian status, we affirm.7
B. Expert Testimony
Mr. Walker argues the district court erred in admitting the expert testimony of Dr. William Smock because (1) the Government‘s Rule 16 disclosure was untimely
“We review the district court‘s decision to exclude both expert and lay witness testimony as a sanction for violation of
Because (1) Mr. Walker has not adequately shown prejudice from an untimely Rule 16 disclosure and (2) Dr. Smock did not improperly vouch for Ms. Dirickson‘s credibility, the district court did not abuse its discretion. We affirm.
1. Legal Background
a. Rule 16 and exclusion as sanction
(G) Expert Witnesses. At the defendant‘s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness‘s opinions, the bases and reasons for those opinions, and the witness‘s qualifications.
In United States v. Wicker, 848 F.2d 1059 (10th Cir. 1988), we set forth three factors that the district court should consider when determining whether a Rule 16 sanction is appropriate: (1) the reason for the delay, including whether the non-compliant party acted in bad faith; (2) the extent of prejudice to the party that sought the disclosure; and (3) “the feasibility of curing the prejudice with a continuance.” Id. at 1061. “[T]hese three factors should merely guide the district court in its consideration of sanctions; they are not intended to dictate the bounds of the court‘s discretion.” Id. “Frequently it will be found that the party who requested disclosure has not been prejudiced and that no sanction is needed.” United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999) (quotations omitted).
b. Improper expert vouching
“A fundamental premise of our criminal trial system is that the jury is the lie detector.” United States v. Scheffer, 523 U.S. 303, 313 (1998) (quotations omitted). “Determining the weight and credibility of witness testimony, therefore, has long
Consistent with this principle, we have long held that expert testimony vouching for the “credibility of witnesses is generally not [] appropriate” because it (1) “usurps a critical function of the jury,” (2) “is prejudicial and [can] unduly influence[] the jury,” and (3) is “not helpful to the jury, which can make its own determination of credibility.” United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir. 1993); see also
On December 29, 2021, the Government filed a notice under
[A]n expert on the life-threatening nature of strangulation, side effects of strangulation, life-threatening nature of blunt head trauma injuries like concussions, and possible obstetric complications for pregnant victims of strangulation and concussions.
ROA, Vol. I at 20. It also noted Dr. Smock was:
[E]xpected to offer opinions regarding strangulation, concussions, their side effects, and potential obstetric complications for pregnant victims of strangulation and concussions at trial.
Id. at 21. The disclosure did not mention that Dr. Smock would testify about the impact of strangulation and concussion on Ms. Dirickson.
Dr. Smock drafted an expert report dated January 6, 2022. The Government disclosed this report to Mr. Walker on January 7. It contained extensive discussion of Dr. Smock‘s assessment of Ms. Dirickson. On January 11, Mr. Walker moved to exclude the expert report (1) as a sanction for late disclosure and (2) because Dr. Smock‘s testimony would vouch for Ms. Dirickson‘s credibility.10
At trial, Dr. Smock testified regarding his assessment of Ms. Dirickson‘s injuries. He said, “When I interviewed Ms. Dirickson, I asked her, as any doctor would ask you, tell me what happened. So she went through what happened, where she had pain . . . .” ROA, Vol. III at 299. Dr. Smock also noted he had reviewed other evidence, including photos and medical documents.
Dr. Smock then testified to his professional assessment of Ms. Dirickson‘s injuries. He remarked that “[b]ased upon the information that [he] reviewed, [Ms. Dirickson‘s] injuries were consistent with a near-fatal strangulation and that she sustained serious bodily injuries with a grave risk of death.” Id. at 304. Dr. Smock then clarified that his testimony regarding “serious bodily injury” was in “a medical sense. This is—you know, when you block blood to the brain, you block the ability to breathe, that is serious injury because you can die. And people do die from that.” Id. at 305.
a. Rule 16 and exclusion as sanction
Mr. Walker argues Dr. Smock’s testimony should have been excluded because the Government’s disclosure of Dr. Smock’s expert report on January 7—11 days before trial—was both late and prejudicial.
Rule 16 did not establish a deadline for disclosure, and the district court did not find the disclosure was untimely. We need not resolve whether the disclosure was untimely because we hold the district court did not abuse its discretion in finding Mr. Walker failed to show prejudice.11
As noted above, the Wicker factors are: (1) the reason for the delay, including whether the non-compliant party acted in bad faith; (2) the extent of prejudice to the party that sought the disclosure; and (3) “the feasibility of curing the prejudice with a continuance.” 848 F.2d at 1061.
On appeal, Mr. Walker addresses only prejudice—the second Wicker factor. But he has failed to show prejudice to warrant reversal. For example, he has not shown that he tried but was unable to engage an expert to counter Dr. Smock’s testimony. Nor did he seek a continuance after the district court’s January 11
b. Improper expert vouching
Mr. Walker argues that Dr. Smock’s testimony improperly vouched for Ms. Dirickson’s “credibility on the question of suffering serious bodily injury” and should have been excluded. Aplt. Br. at 35. He relies primarily on United States v. Charley, 189 F.3d 1251 (10th Cir. 1999). In Charley, a doctor testifying to her examination of two alleged victims of sexual abuse was “permitted to give the jury her unconditional opinion that each of the girls was in fact sexually abused.” Id. at 1266. We noted that “if [the doctor’s] opinion was largely based on crediting the girls’ account, . . . [the doctor] was essentially vouching for their truthfulness.” Id. at 1267.
Charley is distinguishable. Unlike in Charley, Dr. Smock’s testimony was not “largely based on crediting [Ms. Dirickson’s] account.” Id. Dr. Smock based his expert medical opinion on both Ms. Dirickson’s discussion of her symptoms and on other physical evidence, including photos and medical reports. When asked if he “look[s] at all—globally at all materials available to [him] on [a] case before rendering an opinion,” Dr. Smock responded, “Absolutely. You have to do that.” ROA, Vol. III at 387. When Dr. Smock testified that Ms. Dirickson had suffered
A review of other expert vouching cases reinforces this conclusion. Dr. Smock did not base his expert testimony on Ms. Dirickson’s account alone. See United States v. Velarde, 214 F.3d 1204, 1211 n.6 (10th Cir. 2000) (noting doctor’s testimony that she would base her diagnosis on individuals’ statements “appear[ed] to be impermissible vouching”). Nor did he testify that, in his professional opinion, Ms. Dirickson was telling the truth. See United States v. Hill, 749 F.3d 1250, 1251 (10th Cir. 2014) (reversing where FBI agent “trained in ‘special tactics and ways to identify [] deception in statements and truths in statements’” testified as an expert that, “in his opinion, many of [a party’s] answers were not worthy of credence and ‘did not make sense’” (first alteration in original)).
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The district court did not abuse its discretion in admitting Dr. Smock’s testimony.
C. Unanimity-of-Means Instruction
At trial, Mr. Walker objected to the district court’s proposed jury instructions because they did not include an instruction requiring the jury to agree unanimously
“We review a district court’s decision on whether to give a particular jury instruction for abuse of discretion and view the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law.” United States v. Sorensen, 801 F.3d 1217, 1228-29 (10th Cir. 2015) (alterations and quotations omitted). “We will disturb a judgment only if we have substantial doubt that the jury was fairly guided.” United States v. Kahn, 58 F.4th 1308, 1315 (10th Cir. 2023) (quotations omitted).
Because our caselaw does not require a unanimity-of-means instruction, we affirm.
1. Legal Background
The jury must find unanimously that “the [g]overnment has proved each element” of a crime. Richardson v. United States, 526 U.S. 813, 817 (1999). But the jury need not agree unanimously on the means by which the crime was committed. Id. Thus, “a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.” Id.; see also United States v. Kearn, 863 F.3d 1299, 1310 (10th Cir. 2017). Put another way:
[T]he holding of Richardson sets a lower bar than the rules of ‘Clue.’ The jury need only unanimously agree that (1) Peter murdered Paul, (2) in the room of a house,
(3) with a blunt household instrument. If the evidence at trial persuades them of those elements, they may convict. They need not agree unanimously on which room and weapon; the different weapons and rooms are merely means of satisfying the statutory elements. If six jurors are persuaded it happened in the library with a candlestick, and six jurors think it happened in the observatory with a lead pipe, that would not vitiate the conviction.
Mr. Walker was prosecuted under
2. Analysis
The district court did not abuse its discretion in failing to issue a unanimity-of-means jury instruction. The charged crime has two elements: “(a) the defendant committed an assault, and (b) the victim suffered serious bodily injury.” United States v. Clark, 981 F.3d 1154, 1165 (10th Cir. 2020); see
D. Sentencing Disparities
Mr. Walker argues the district court erred by not considering whether imposing the federal sentence to run concurrently with a sentence in a pending state
1. Additional Procedural Background
At sentencing, Mr. Walker asked the district court to impose his sentence to run concurrently with his sentence in a then-pending state case. The district court ordered Mr. Walker’s sentence to run consecutively to any anticipated term of imprisonment in the state case.
2. Legal Background
3. Analysis
As noted, Section “3553(a)(6) applies only when addressing sentencing disparities among and between federal defendants sentenced under the federal sentencing guideline regime.” Id. The district court therefore did not abuse its discretion when it declined to consider Mr. Walker’s state-federal disparity argument. But even if the district court were required to consider Mr. Walker’s argument, it stated on the record that it did so:
Based upon these factors, this sentence outside the guideline range for justifiable reasons will serve as an adequate deterrent to this defendant as well as others, promote respect for the law, provide just punishment for the offense, and provide protection for the public and it will not undermine the statutory purposes of sentencing. Sentencing disparities among defendants were considered in determining an appropriate sentence in this case.
ROA, Vol. III at 494 (emphasis added).
We affirm.
E. Anger Management Special Condition
Mr. Walker challenges a supervised-release condition requiring his participation in an anger-management program, asserting (1) that he had insufficient notice that the district court was considering this special condition, and (2) that this condition improperly delegates authority to the Probation Office.
1. Additional Procedural Background
At sentencing, the district court imposed a three-year period of supervised release. Among the conditions of release, the district court ordered that Mr. Walker:
[P]articipate in a program for anger management during the term of supervision as deemed appropriate by the probation office.
ROA, Vol. I at 224.
2. Legal Background
a. Notice of special conditions
“[N]otice of a special condition is required only when the condition implicates a liberty interest, and there is a lack of any obvious nexus between the condition and the crime of conviction.” United States v. Bruce, 458 F.3d 1157, 1167-68 (10th Cir. 2006) (emphasis added) (alterations and quotations omitted). Such instances are “highly unusual cases where pre-hearing notice [is] required.” Id. at 1168.
b. Delegation to Probation Office
“It is well established that probation officers have broad authority to advise and supervise probationers.” United States v. Mike, 632 F.3d 686, 695 (10th Cir. 2011) (alterations and quotations omitted). But “[t]here are limits to this authority.” Id. “For instance,
Id. (citations omitted).
“We will narrowly construe a broadly worded mental health treatment condition to ensure it does not delegate authority to a probation officer to impose conditions that implicate significant liberty interests—such as inpatient treatment.” United States v. Englehart, 22 F.4th 1197, 1216 (10th Cir. 2022).
3. Analysis
The district court did not err by not giving advance notice of the anger-management condition because there is an “obvious nexus between the condition” (anger management) and “the crime[] of conviction” (assault following a dispute regarding house keys). Bruce, 458 F.3d at 1168.
The district court also did not err because the condition did not improperly delegate authority to the Probation Office. “We will narrowly construe a broadly worded mental health treatment condition to ensure it does not delegate authority to a probation officer to impose conditions that implicate significant liberty interests—such as inpatient treatment.” Englehart, 22 F.4th at 1216. Applying this narrow construction here, we “read the condition as not delegating to the probation officer
III. CONCLUSION
We affirm.