U.S. v. Nash

• Decision Date: 13 February 2006
• Docket Number: No. 05-11440 Non-Argument Calendar.,05-11440 Non-Argument Calendar.
• Citation: 438 F.3d 1302
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gloria Newell NASH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

438 F.3d 1302

UNITED STATES of America, Plaintiff-Appellee, v. Gloria Newell NASH, Defendant-Appellant.

No. 05-11440 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 13, 2006.

Gwendolyn L. Spivey and Randolph P. Murrell, Fed. Pub. Defenders, Fed. Def. Office, Tallahassee, FL, Thomas S. Keith, Fed. Pub. Def., Fed. Pub. Defender's Office, Pensacola, FL, for Nash.

Nancy J. Hess, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Gloria Newell Nash appeals three conditions of her supervised release. Nash was sentenced to eight months of imprisonment and two years of supervised release for theft of government property. See 18 U.S.C. § 641. Nash argues that the district court plainly erred by imposing (1) three conditions of her supervised release that improperly delegated a judicial function to a probation officer and (2) one condition that was unconstitutionally vague and overbroad. Although the district court plainly erred in delegating to the probation officer the decision whether Nash should participate in a mental health program, see United States v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005), the district court did not err in imposing the remaining two conditions, both of which were specifically recommended by the Sentencing Guidelines. We vacate and remand in part and affirm in part.

I. BACKGROUND

Nash pleaded guilty to one count of theft of governmental property for fraudulently receiving $41,416 in Social Security benefits. Nash had prior convictions for petit larceny, eight instances of issuing worthless checks, unauthorized use of public assistance, and petit theft. The district court sentenced Nash to eight months of imprisonment and two years of supervised release. The district court also ordered $41,416 in restitution to be paid in monthly installments of not less than $90 per month. Nash did not object to the sentence.

The court imposed fourteen standard conditions and four special conditions on Nash's supervised release. Special Condition One states, "As deemed necessary by the Probation Officer, the defendant shall participate in mental health counseling, which may include inpatient treatment." Special Condition Four states, "The defendant shall secure prior approval from the probation office before opening any checking, credit, or debit account." Standard Condition Thirteen states, "As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement." Nash appeals these conditions of her supervised release.

II. STANDARD OF REVIEW

We review the terms of a supervised release for abuse of discretion, but where the defendant fails to object at the district court, we reverse only for plain error. United States v. Zinn, 321 F.3d 1084, 1088 (11th Cir.2003). We review constitutional issues de novo, but reverse only for plain error where the defendant fails to object at the district court. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.1995).

III. DISCUSSION

Nash argues that Special Condition One, Special Condition Four, and Standard Condition Thirteen of her supervised release are an improper delegation of judicial authority because they do not limit the discretion of the probation officer. Nash also contends that Standard Condition Thirteen is unconstitutionally vague because it does not define when and to whom notice is required. We discuss each argument in turn.

A. Whether the District Court Delegated Judicial Functions?

Nash contends that the district court plainly erred because Special Condition One, Special Condition Four, and Standard Condition Thirteen of her supervised release are improper delegations of judicial function in violation of Article III of the United States Constitution. See U.S. Const., art. III. "To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights." Zinn, 321 F.3d at 1088. If these three criteria are met, we may reverse for plain error if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

To determine if a court improperly delegated the judicial authority of sentencing, we have drawn a distinction between the delegation to a probation officer of "a ministerial act or support service" and "the ultimate responsibility" of imposing the sentence. See United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001); see also Heath, 419 F.3d at 1315; United States v. Taylor, 338 F.3d 1280, 1283-84 (11th Cir.2003); Zinn, 321 F.3d at 1092. Although "[a] probation officer is an `arm of the court,'" Bernardine, 237 F.3d at 1283 (quoting United States v. Ruiz, 580 F.2d 177, 178 (5th Cir.1978)), and "is statutorily mandated to `perform any . . . duty that the court may designate,'" id. (quoting 18 U.S.C. § 3603(10)), Article III courts may not delegate the "ultimate responsibility" of judicial functions to probation officers, id. (citing United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995)). Because probation officers "play a vital role in effectuating the sentences imposed by district courts," Taylor, 338 F.3d at 1284, courts may delegate duties to probation officers "to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility." Id. (quoting Johnson, 48 F.3d at 808-09). "Indisputably under our constitutional system, the right . . . to impose the punishment provided by law, is judicial." Ex parte United States, 242 U.S. 27, 41-2, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916). "[W]here the court makes the determination of whether a defendant must abide by a condition, . . . it is permissible to delegate to the probation officer the details of where and when the condition will be satisfied." United States v. Stephens, 424 F.3d 876, 880 (9th Cir.2005).

We have upheld conditions of supervised release that unequivocally impose a requirement on the defendant, but subject the defendant to the "approval" or "direction" of a probation officer. For example, we concluded that the district court did not plainly err by imposing a condition that stated the defendant "shall participate as directed in a program of mental health treatment including a sexual offender treatment program approved by the probation officer." Zinn, 321 F.3d at 1092 (emphasis added). We also affirmed, under an abuse of discretion standard, a condition of supervised release that required the defendant "to participate in a mental health program . . . approved by the probation officer, and abide by the rules, requirements and conditions of the treatment program, including submitting to polygraph testing." Taylor, 338 F.3d at 1283 (emphasis added). In both decisions, we noted that the Sentencing Guidelines "`expressly permit[]' the district court to require defendants to `participate in a mental health program approved by the United States Probation Office.'" Id. at 1284 (quoting U.S.S.G. § 5B1.3(d)(5)).

We also recently concluded that a district court plainly errs when it delegates "to the probation officer the authority to decide whether a defendant will participate in a treatment program." Heath, 419 F.3d at 1315 (emphasis added). In Heath, the district court imposed a condition that "[t]he defendant shall participate if and as directed by the probation office in such mental health programs as recommended by a psychiatrist or psychologist . . . ." Id. at 1314 (emphasis added). We stated that this condition "delegated to the probation officer not only the administrative supervision of Heath's participation in the mental health program, but also the authority to make the ultimate decision of whether Heath had to participate at all." Id. at 1315. Because "imposing a sentence on a defendant is a judicial function" that affected the terms of the sentence and "[a] violation of Article III through the improper delegation of a judicial function" "seriously affects the fairness, integrity, or public reputation of judicial proceedings," we concluded that the district court had plainly erred. Id.

We apply these principles to the challenged conditions of Nash's supervised release. Special Condition One of Nash's supervised release constitutes plain error because it delegates the "ultimate responsibility" of sentencing to the probation officer. It states that "[a]s deemed necessary by the Probation Officer, the defendant shall participate in mental health counseling." "[T]he sentencing guidelines expressly permit the court, and only the court, to impose `a condition requiring that the defendant participate in a mental health program.'" Id. at 1315 (citing U.S.S.G. § 5B1.3(d)(5)). Although the condition states that Nash "shall" participate in mental health counseling, this order is subject to the conditional phrase "[a]s deemed necessary by the Probation Officer." In other words, whether Nash "shall" participate in mental health counseling turns on the judgment of the probation officer, not the court. Like the condition we rejected in Heath, the district court has delegated to the probation officer the "ultimate responsibility" of whether Nash must participate in mental health counseling instead of the "ministerial function" of how, when, and where the defendant must participate. The district court plainly erred when it imposed Special Condition One. See Id. at 1315.

Special Condition Four and Standard Condition Thirteen, by contrast, impose clear directives on the...