United States v. Morin

• Decision Date: 08 August 2016
• Docket Number: No. 15-50197,15-50197
• Citation: 832 F.3d 513
• Parties: United States of America, Plaintiff–Appellee, v. Robert Morin, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

832 F.3d 513

United States of America, Plaintiff–Appellee,

v.Robert Morin, Defendant–Appellant.

No. 15-50197

United States Court of Appeals, Fifth Circuit.

Filed August 8, 2016

Joseph H. Gay, Jr., Ellen A. Lockwood, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant–Appellant.

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Robert Morin pleaded guilty to failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA).¹ The district court sentenced Morin to 33 months of imprisonment and five years of supervised release. Morin challenges two special conditions of his supervised release. He contends that the district court impermissibly delegated judicial authority by directing that Morin comply with unspecified “lifestyle restrictions” that might be imposed by a therapist throughout the term of supervised release. Morin additionally argues that the requirement that he abstain from the use of alcohol during his term of supervised release was not included in the district court's oral pronouncement of the sentence.

We vacate the challenged conditions and remand for further proceedings.

I

As a result of Morin's 2002 Illinois conviction of aggravated sexual abuse of a victim 13 to 17 years old, Morin is required to register as a sex offender under SORNA. Morin relocated to Wisconsin and then to Texas. Though he registered as a sex offender in Wisconsin, he failed to update that registration after moving to Texas and did not register in Texas. Morin was convicted of violating 18 U.S.C. § 2250.

The presentence report (PSR) recommended several conditions of supervised release, including the possibility of participation in a sex offender treatment program and a directive that Morin must follow all lifestyle restrictions or treatment requirements imposed by a therapist. The PSR additionally recommended that Morin be required to abstain from the use of alcohol or other intoxicants during the term of supervision.

Morin filed written objections, arguing that the special condition regarding compliance with all lifestyle restrictions imposed by a therapist constituted an impermissible delegation of the district court's authority. Responsive to Morin's concern, the Government at sentencing suggested that the condition be revised to require the therapist to recommend lifestyle restrictions to the court through the probation officer, with the court retaining ultimate decision-making authority. Morin also challenged the special condition regarding the consumption of alcohol, contending it was not reasonably related to Morin's criminal history or the relevant statutory factors.²

In its oral pronouncement, the district court “ordered [Morin] to participate in a sex offender evaluation and treatment, and [to] follow all lifestyle restrictions as determined by the ... therapist”; the court did not mention the special condition regarding alcohol. The district court's written judgment subsequently listed eight special conditions of supervised release, including the following:

[1] The defendant shall abstain from the use of alcohol and/or all other intoxicants during the time of supervision.

....

[3] The defendant shall attend and participate in a sex offender treatment program operated by a Licensed Sex Offender Treatment Provider (LSOTP) and/or other sex offender treatment program approved by the probation officer. The defendant shall abide by all program rules, requirements and conditions of the sex offender treatment program, including submission to polygraph examinations, to determine if the defendant is in compliance with the conditions of release. The defendant may be required to contribute to the cost of service rendered (copayment) in an amount to be determined by the probation officer, based on the defendant's ability to pay.

[4] The defendant shall follow all other lifestyle restrictions or treatment requirements imposed by the therapist, and continue those restrictions as they pertain to avoiding risk situations throughout the course of supervision....

Morin has appealed, challenging Conditions 1 and 4.

II

The Government contends that Morin's challenge to Special Condition No. 4 as an improper delegation of judicial authority is not ripe for review because it is currently uncertain what, if any, lifestyle restrictions or treatment requirements will be imposed. The Government cites our decision in United States v. Tang, in which a special condition required the defendant to “participate in a mental health program—treatment program and/or sex offender treatment program provided by the registered sex offender treatment provider.”³ The defendant claimed that the district court did not realize that it could order mental health treatment without ordering sex offender treatment; should not have mandated, or left open the possibility of, sex offender treatment; and that the district would not have included this condition if the court had appreciated its ability to order mental health treatment without ordering sex offender treatment.⁴ We concluded that these contentions were not ripe for review because the optional condition of sex offender treatment might never be imposed.⁵ We observed that “[t]he district court simply left to the discretion of the treatment provider the decision of what type of treatment would be most effective.”⁶ The defendant in Tang did not challenge the district court's authority to delegate decisions regarding lifestyle restrictions to the treatment provider. We did not hold in Tang, or consider, whether such a delegation was improper.

Whether Condition No. 4 impermissibly delegates judicial authority is a question of law. Our court and other circuit courts have considered impermissible delegation claims on direct review.⁷ Whether the district court improperly delegated judicial authority to a treatment provider is ripe, and we conclude that we have jurisdiction to exercise our discretion to consider Morin's argument.

III

Morin argues that Condition No. 4 constitutes an improper delegation because it permits a therapist, not a court, to “decide the nature or extent of the punishment imposed.”⁸ He contends that the breadth of Condition No. 4 presents the possibility that a therapist could impose “lifestyle restrictions” that invade significant liberty interests and that those restrictions would be applicable throughout the entirety of supervised release under the terms of the court's judgment. We review “properly preserved objections to the imposition of conditions of supervised release for an abuse of discretion.”⁹

We agree with the Government that a court may determine that the manner and means of therapy during a treatment program may be devised by therapists rather than the court. However, as presently constructed, Condition No. 4 extends to a therapist the authority to impose, without court review, independent conditions of supervised release that might extend beyond the period of supervised release and that could serve as the basis for violations of the terms of supervised release separate and apart from non-compliance with the treatment program.

Condition No. 4 differs from special conditions considered and upheld by our sister courts of appeals. In United States v. Fellows, the Ninth Circuit concluded that the condition that the defendant “ ‘follow all other lifestyle restrictions or treatment requirements' imposed by his therapist ... simply ordered [the defendant] to comply fully with [the sex offender program]” and was therefore permissible.¹⁰ The challenged condition in Fellows was tethered to the treatment program; it did not permit the therapist to impose conditions that would extend beyond the treatment program, or create independent conditions of release apart from complying fully with the treatment program, as here.

In United States v. Bender, the Eighth Circuit upheld a condition requiring the defendant to “follow all other lifestyle restrictions or treatment requirements imposed by the therapist,” reasoning that the district court had “ ‘g[iven] no indication that it would not retain ultimate authority over all of the conditions of [the defendant's] supervised release.’ ”¹¹ While Bender did not parse the language of the challenged condition, it did cite to two other Eighth Circuit cases—United States v. Mickelson¹² and United States v. Kent¹³ —both of which are instructive. In Mickelson, the court held that there was no improper delegation when the conditions imposed on the defendant included those at the discretion of the probation officer because the district court “specifically stated that it intended to limit conditions to those actually needed,” indicating that it would “retain[ ] and exercise[ ] ultimate responsibility” over the conditions.¹⁴ By contrast, in Kent, the court held that there was an improper delegation when the challenged condition permitted the probation officer to determine whether the defendant would be required to undergo psychiatric treatment, and the district court “explicitly stated it hoped it would not be ‘riding herd’ on the probation officer's decision.”¹⁵ In the present case, the district court's express refusal to grant the modification requested by both Morin and the Government—a modification that would have required the therapist to recommend lifestyle restrictions to the court through the probation officer—suggests that the court did not intend to “retain[ ] and exercise[ ] ultimate responsibility.”¹⁶

We emphasize that it is not our intention to tie the hands of a district court in imposing conditions of supervised release. District courts should be afforded the flexibility to impose conditions to rehabilitate...