United States Court of Appeals
For the First Circuit
No. 01-2643
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN C. ALLEN, II,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
David Abraham Silverman, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
December 10, 2002
TORRUELLA, Circuit Judge. Defendant-appellant, Edwin C.
Allen, appeals the special conditions of his supervised release.
Because we do not find that the district court erred in imposing
the conditions, we affirm.
I. Background
On April 27, 2001, Allen pled guilty to a single count of
tax evasion for making a false claim on a financial statement.
Based upon a claim of diminished mental capacity, Allen sought a
downward departure from the sentencing range listed in the United
States Sentencing Guidelines (U.S.S.G.).1 The district court
refused his request and on November 5, 2001 sentenced him to eight
months imprisonment followed by three years of supervised release.
Allen makes two arguments attacking the special
conditions imposed. First, he argues that three conditions are
overbroad and involve a greater deprivation of liberty than is
reasonably necessary for the purposes of his supervised release.
Second, he contends that the special condition requiring that he
attend mental health treatment improperly delegates judicial
authority to the probation officer.
II. Standard of Review
Ordinarily, we would review the imposition of special
conditions of supervised release for abuse of discretion. United
1
Applying the 2000 Sentencing Guidelines, Judge Hornby found that
Allen fell in the Zone C range of eight to fourteen months
imprisonment.
-2-
States v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996). However, because
Allen had an opportunity to object to the special conditions and
failed to do so, we review for plain error only. Id. "The plain
error hurdle is high. Under the standard, we may set aside the
challenged portion of the instant sentence if, and only if, the
appellant succeeds in showing an obvious and clear error under
current law that affected his substantial rights." United States
v. Brown, 235 F.3d 2, 4 (1st Cir. 2000) (citations and internal
quotation marks omitted). However, "[e]ven then, we may decline to
correct an error that does not seriously affect the fairness,
integrity or public reputation of judicial proceedings." Id.
III. Overbreadth Challenges
U.S.S.G. § 5D1.3 governs the conditions of supervised
release. The court may impose additional conditions where they are
reasonably related to the offense and the history of the defendant,
as long as they do not deprive the defendant of a greater amount
"of liberty than is reasonably necessary" to deter criminal conduct
and to protect the public from the defendant. U.S.S.G. § 5D1.3(b)
(2000).2 The Federal Sentencing Commission ("the Commission")
2
U.S.S.G. § 5D1.3(b) states in its entirety:
(b) The court may impose other conditions of supervised
release to the extent that such conditions (1) are
reasonably related to (A) the nature and circumstances of
the offense and the history and characteristics of the
defendant; (B) the need for the sentence imposed to
afford adequate deterrence to criminal conduct; (C) the
need to protect the public from further crimes of the
-3-
provides a list of "special conditions" that it recommends in
specified circumstances. U.S.S.G. § 5D1.3(d). We now consider the
special conditions that Allen challenges.
A. Financial Information and Credit Limitations
Allen argues that the provisions requiring that he
"provide the probation officer with access to any requested
financial information" and limiting his ability to obtain credit
are overbroad in violation of section 5D1.3(b).3 Far from
committing error, the district court imposed special conditions
that the Commission specifically recommends for defendants, such as
Allen, who are paying fines in installments. U.S.S.G. § 5D1.3(d)
(2)-(3). Consequently, Allen has not established that the district
court imposed these conditions in clear error.
B. Alcohol Prohibitions
Allen next challenges the special condition prohibiting
his possession of alcohol and his presence at establishments
primarily serving alcohol. The condition provides:
defendant; and (D) the need to provide the defendant with
needed educational or vocational training, medical care,
or other correctional treatment in the most effective
manner; and (2) involve no greater deprivation of liberty
than is reasonably necessary for the purposes set forth
above and are consistent with any pertinent policy
statements issued by the Sentencing Commission.
3
It is notable that the credit condition does not prevent Allen
from obtaining credit; it merely requires that he gain approval
from his probation officer before applying for credit.
-4-
Defendant shall not at any time be in
possession, joint, sole, actual or
constructive, of any alcoholic beverage. He
shall not associate with individuals consuming
alcoholic beverages, shall not frequent
business establishments whose primary product
to the consumer is alcoholic beverages, and
shall not use any medication containing
alcohol without permission from the probation
officer or a prescription from a licensed
physician.
Allen argues that the condition is overbroad and that there is not
an adequate relationship between the nature and circumstances of
his offense and the special condition imposed.
Allen has not shown that the alcohol condition is so
broadly drawn or divorced from the nature and circumstances of his
offense that it constitutes clear error. The record contains ample
evidence of Allen's history of alcohol abuse, including a
conviction for driving while under the influence of alcohol. In
addition, defense counsel argued that Allen's mental illness
contributed to the commission of his crime, and that Allen's abuse
of alcohol exacerbated the symptoms of the mental illness. Based
on the record, the district court did not commit obvious error in
concluding that Allen's history of alcohol abuse required a stiff
prohibition,4 see United States v. Thurlow, 44 F.3d 46, 47 (1st
Cir. 1995) (upholding a special condition prohibiting the use and
possession of alcohol where the record showed a history of alcohol
4
Allen can petition for a change in the condition if it is
applied unreasonably. See 18 U.S.C. § 3583(e).
-5-
abuse), and that there was "an adequate relationship between the
nature and circumstances of the offense, the demonstrated
propensities of the offender and the special condition attached to
the offender's release," Brown, 235 F.3d at 7. Far from erring,
the district court created an alcohol prohibition reasonably
related to Allen's history of alcohol abuse and to permissible
goals of supervised release, including Allen's rehabilitation and
protection of the public.
IV. Delegation Argument
Finally, Allen claims that Judge Hornby impermissibly
delegated judicial authority to the probation officer when he
ordered, as a special condition of supervised release, that
"[d]efendant shall participate in a program of mental health
treatment, as directed by the probation officer, until such time as
the defendant is released from the program by the probation
officer." According to Allen, this condition is an unlawful
delegation because it empowers the probation officer to decide
whether and for how long Allen must participate in mental health
treatment.
While "[c]ases or controversies committed to Art. III
courts cannot be delegated to nonjudicial officers for
resolution[,] [t]hat general principle does not . . . prohibit
courts from using nonjudicial officers to support judicial
functions, as long as that judicial officer retains and exercises
-6-
ultimate responsibility." United States v. Johnson, 48 F.3d 806,
809 (4th Cir. 1995); see also United States v. Raddatz, 477 U.S.
667, 683 (1980) (holding that "so long as the ultimate decision is
made by the district court," delegation to a magistrate judge does
not violate Article III); cf. United States v. Merric, 166 F.3d
406, 409 (1st Cir. 1999) (vacating a sentence in which the judge
delegated final authority over defendant's fine payment schedule to
the probation officer). Allen relies on cases outside this Circuit
for his claim that this special condition amounted to an unlawful
delegation. See United States v. Peterson, 248 F.3d 79 (2d Cir.
2001); United States v. Kent, 209 F.3d 1073 (8th Cir. 2000).
Unlike Allen, we do not read these opinions as announcing -- nor do
we adopt -- a general rule that counseling clauses such as the one
before us are prohibited. However, these cases do provide
persuasive guidance for the proposition that special conditions of
probation should be evaluated in light of the facts of the case as
reflected by the entire record. In Kent, the Eighth Circuit
vacated the district court's imposition of a special condition
requiring the defendant to attend psychological counseling because
it appeared that the "probation officer, as opposed to the court,
would retain and exercise ultimate responsibility over the
situation." Kent, 209 F.3d at 1079. Crucially, the court made
this determination after examining the entire record and finding
both that the trial judge had stated outright that the parole
-7-
officer would be the one to determine whether defendant had to
attend counseling and that the record did not demonstrate that the
defendant had mental health problems. Id. at 1075, 1078-79.
Citing to Kent, the Second Circuit provided a concise rule for
delegations of psychiatric counseling:
If [the defendant] is required to participate
in a mental health intervention only if
directed to do so by his probation officer,
then this special condition constitutes an
impermissible delegation of judicial authority
to the probation officer. On the other hand,
if the District Court was intending nothing
more than to delegate to the probation officer
details with respect to the selection and
schedule of the program, such delegation was
proper.
Peterson, 248 F.3d at 85 (citations omitted).
When we examine the record, it becomes evident that Judge
Hornby was merely directing the probation officer to perform
ministerial support services and was not giving the officer the
power to determine whether Allen had to attend psychiatric
counseling. The record contains many references to Allen's mental
illness. For example, defense counsel submitted an affidavit from
Allen's doctor, Ronald S. Ebert, who "found that there was a
history suggestive of a mental illness as well as alcohol abuse"
and opined that Allen was "suffering from a major depressive
disorder characterized by mood disorder, depression, disorganized
and confused thinking, anxiety and irritability." Defense counsel
stated Dr. Stephanie Brody diagnosed Allen with "affective mental
-8-
illness." Defense counsel argued that Allen's mental illness
contributed to the commission of Allen's crime and asked the court
to impose mental health treatment as a condition of probation, if
the court agreed to a reduction in his sentence. The extensive
evidence of Allen's mental illness indicates that the court was
imposing mandatory counseling and delegating the administrative
details to the probation officer, actions constituting a
permissible delegation. See Peterson, 248 F.3d at 85.
V. Conclusion
For the reasons stated above, we affirm.
-9-