FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-50257
DEAN HARLON SOLTERO, a/k/a DEAN
HARLON RESINGER, DEAN HARLON D.C. No.
CR-04-00235-AHS
SOCTERO, DEAN HARLOW SOCTERO,
OPINION
DEAN HARLOW SOLTERO and
“HUERO,”
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
February 7, 2007—Pasadena, California
Filed October 19, 2007
Before: THOMAS G. NELSON, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Hawkins
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
14099
14102 UNITED STATES v. SOLTERO
COUNSEL
Sean K. Kennedy, Acting Federal Public Defender, Jonathan
D. Libby, Deputy Federal Public Defender, Los Angeles, Cal-
ifornia, for the defendant-appellant.
Debra Wong Yang, United States Attorney, Wayne R. Gross,
Assistant United States Attorney, David R. Gallivan, Special
Assistant United States Attorney, Santa Ana, California, for
the plaintiff-appellee.
OPINION
PER CURIAM:
Dean Harlon Soltero (“Soltero”) appeals the sentence
imposed following his guilty plea to being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). He
argues that the district court erred by failing to verify that he
had read his presentence report (“PSR”) and had discussed it
with his attorney, as well as by imposing three particular con-
ditions of supervised release. We affirm in part, and vacate
and remand in part.
UNITED STATES v. SOLTERO 14103
I.
Soltero1 pleaded guilty to a single-count indictment charg-
ing him with being a felon in possession of a firearm, in viola-
tion of 18 U.S.C. § 922(g)(1). At sentencing, both Soltero and
his counsel were given an opportunity to address the court on
the matter of sentencing. Although the court did not expressly
ask Soltero whether he had read the PSR and discussed it with
counsel, Soltero had been advised at a previous hearing that
he would have this opportunity and never indicated to the sen-
tencing court that the opportunity had been denied him. More-
over, Soltero’s counsel raised—and the district court
considered—several objections to facts contained in the PSR,
with counsel using the word “we” to frame the defense’s
objections.
After ruling on these objections, the court sentenced
Soltero to 72 months imprisonment, followed by three years
of supervised release. During his term of supervised release,
the court ordered Soltero to (among other things): (1) “As
directed by the Probation Officer, . . . pay all or part of the
costs of treating [his] drug dependency and/or alcohol depen-
dency”; (2) use only his “true legal name”; and (3) refrain
from “associating with any known member of any criminal
street gang or disruptive group . . . , specifically, any known
member of the Delhi street gang.”2 The district court over-
ruled Soltero’s objections to these conditions. Soltero now
appeals, arguing that the district court’s failure to verify that
he had read the PSR and discussed it with his attorney
requires resentencing and that the three conditions of super-
vised release are improper.
1
Soltero explained to the court during the change of plea hearing that
his legal birth name is Dean Harlon Resinger, although he has used his
stepfather’s surname, Soltero, since age two. See infra Part II.C.
2
The condition continued as reproduced infra Part II.D.
14104 UNITED STATES v. SOLTERO
II.
A. District Court’s Compliance with Rule 32(i)(1)(A)
[1] Rule 32(i)(1)(A) requires a district court to “verify that
the defendant and the defendant’s attorney have read and dis-
cussed the presentence report and any addendum to the report.”3
Fed. R. Crim. P. 32(i)(1)(A). This rule’s purpose is, as Soltero
correctly points out, “to ensure that the defendant [has] the
opportunity to read the report and then clarify or dispute per-
sonal information contained” therein. See id., advisory com-
mittee’s notes (1983) (“[T]he failure to disclose the report to
the defendant, or to require counsel to review the report with
the defendant, significantly reduces the likelihood that false
statements will be discovered, as much of the content of the
[PSR] will ordinarily be outside the knowledge of counsel.”).
Soltero argues that the district court violated this rule by fail-
ing to expressly verify that he had read the PSR and discussed
it with his attorney.
[2] A district court need not specifically inquire whether a
defendant has read the presentence report, United States v.
Lewis, 880 F.2d 243, 245 (9th Cir. 1989); however, for Rule
32(a)(1)(A) to be satisfied, the sentencing judge must “rea-
sonably rel[y] on evidence indicating that a defendant has
read the presentence report and discussed it with counsel,” id.
at 246. Here, no such direct evidence exists. Although Soltero
was informed of the PSR’s existence when the district judge
alluded to it at his change of plea hearing, merely informing
a defendant that a PSR would be prepared and that he would
have a chance to read and discuss it with his attorney does not
prove that these events actually took place. United States v.
Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001).
3
Prior to December 1, 2002, the verification requirement was referenced
in Rule 32(c)(3)(A) and, before December 1, 1994, in Rule 32(a)(1)(A).
UNITED STATES v. SOLTERO 14105
[3] Additionally, although Soltero’s attorney objected to
portions of the PSR (and at least some of these objections
were likely based on discussions with Soltero), counsel’s
objections do not confirm that Soltero read the entire PSR and
had a chance to point out any factual errors. United States v.
Osborne, 291 F.3d 908, 910 (6th Cir. 2002); United States v.
Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995). Finally, while
Soltero’s attorney repeatedly used the word “we” when dis-
cussing the defense’s PSR objections (which might imply that
he spoke for both him and Soltero), we have already held that
use of the word “we” by defense counsel proves nothing, as
“we” is a “common stylistic device used by lawyers.” United
States v. Sustaita, 1 F.3d 950, 953 (9th Cir. 1993). Because
the district court neither directly asked Soltero if he had read
the PSR and discussed it with his attorney nor relied on evi-
dence indicating the same, we hold that the court’s inquiry
was inadequate under Rule 32(i)(1)(A).
Soltero believes our inquiry should end there and that we
should automatically remand his case for resentencing
because, “[g]iven the court’s failure to comply with Rule 32,
we have no assurance that the PSR was accurate.” While we
acknowledge that some circuits have adopted this approach,
see, e.g., Osborne, 291 F.3d at 910-11, this circuit has consis-
tently held that,“if it is clear that no prejudice resulted” from
a court’s failure to comply with the letter of Rule 32(i)(1)(A),
the error is harmless, and resentencing is unnecessary. United
States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994);
Sustaita, 1 F.3d at 954. Although we emphasize that this error
can be, and should be, “easily avoided,” Sustaita, 1 F.3d at
954, we still agree—as do several other circuits4 —that a
harmless error analysis is appropriate in this context.
4
See United States v. Stevens, 223 F.3d 239, 242-46 (3d Cir. 2000);
Lockhart, 58 F.3d at 89; United States v. Rangel-Arreola, 991 F.2d 1519,
1526 (10th Cir. 1993); United States v. Rodriguez-Luna, 937 F.2d 1208,
1213 (7th Cir. 1991).
14106 UNITED STATES v. SOLTERO
[4] Here, just as in Davila-Escoveda, Soltero has “made no
affirmative allegation that he failed to read the report” and
review it with his attorney. 36 F.3d at 844. Equally important,
Soltero has never identified—either to the district court or to
this court—any fact in the PSR he would have disputed had
the sentencing judge afforded him the opportunity. Cf.
Sustaita, 1 F.3d at 954. We thus do not see how a failure to
verify that Soltero read the PSR and discussed it with counsel
resulted in any prejudice to Soltero. Accordingly, the district
court’s Rule 32(a)(1)(A) error was harmless.
B. The Treatment Condition
Soltero’s next contention is that the following condition
impermissibly delegates to the probation officer the court’s
exclusive authority under 18 U.S.C. § 3672:
As directed by the Probation Officer, the defendant
shall pay all or part of the costs of treating the defen-
dant’s drug dependency and/or alcohol dependency
to the aftercare contractor during the period of com-
munity supervision, pursuant to 18 U.S.C. § 3672.
Defendant shall provide payment and proof of pay-
ment as directed by the Probation Officer. [Condi-
tion 6]
He argues that, pursuant to 18 U.S.C. § 3672, only courts are
allowed to make determinations as to a defendant’s ability to
make such payments and whether such payments should be
made. We review this claim for an abuse of discretion. United
States v. Williams, 356 F.3d 1045, 1052 (9th Cir. 2004).
[5] We addressed this precise issue in United States v.
Dupas, 419 F.3d 916, 924 (9th Cir. 2005).5 In Dupas, we held
5
We recognize that we reviewed the delegation in Dupas for plain error.
Although we employ an abuse of discretion standard in this case, Dupas’s
logic is nonetheless applicable.
UNITED STATES v. SOLTERO 14107
that the district court did not plainly err by delegating to a
probation officer the authority to determine whether the
defendant has sufficient funds to pay for treatment and
whether to require such payment. Id. (following the Fifth Cir-
cuit’s decision in United States v. Warden, 291 F.3d 363, 365-
66 (5th Cir. 2002)). In approving the delegation in that case,
we noted:
[T]he context of the provision in § 3672 is quite dif-
ferent from the context found in §§ 3572 and 3664.
The later provisions relate generally to the court’s
imposition of sentences and restitution. Section
3672, by contrast, is directed primarily to the func-
tions of the probation office. Moreover, the need to
interpret the statute strictly so as to reserve core judi-
cial functions to the court is weaker here; the condi-
tion at issue does not delegate to the probation
officer the power to order substance abuse treatment
in the first place. Finally, § 3672 requires the court
only to find generally that funds are available to pay
for an offender’s treatment and, if so, allows the
court to direct that such funds be paid. By contrast
§ 3572(d) and § 3664(f) expressly require the court
to establish or specify the precise payment schedule.
Id. at 924 (citations omitted). Based on Dupas, the district
court did not abuse its discretion in delegating the cost deter-
mination to the probation office.6
Soltero also argues that the payment conditions should be
vacated because he has no ability to contribute to the costs of
6
Although the dissent asserts that assigning the cost determination to the
probation office was an unconstitutional delegation of the authority of the
court, the punishment is still within the hands of the court at the time of
the hearing on violations of the conditions of supervised release. The pro-
bation office does not have the power to punish Soltero; it only has the
power to direct Soltero to pay for his treatment, if he is able.
14108 UNITED STATES v. SOLTERO
the substance abuse treatment. He asserts that because the
court found that he did not have the ability to pay a fine, the
court also must find that he does not have the ability to pay
the costs of court-ordered treatment. This argument is without
merit. The district court’s two rulings are harmonious since
any payment toward Soltero’s treatment will be based upon
his ability to pay. See United States v. Bull, 214 F.3d 1275,
1279 (11th Cir. 2000).
C. The Legal Name Condition
The second condition Soltero disputes reads as follows:
The defendant shall not obtain or possess any driv-
er’s license, Social Security number, birth certificate,
passport or any other form of identification in any
name, other than the defendant’s true legal name,
without the prior written approval of the Probation
Officer; nor shall the defendant use, for any purpose
or in any manner, any name other than his true legal
name.
At sentencing, Soltero explained that his true legal surname
may technically be “Resinger,”7 but that he wanted to con-
tinue using the surname “Soltero,” just as he had been doing
since he was two years old. Nevertheless, the district court
imposed the generic condition reproduced above. Soltero
argues that, because the condition could be read to unjustifi-
ably require him to use a surname he had never used, impos-
ing it was an abuse of the district court’s discretion. Williams,
356 F.3d at 1052.
7
This is because Soltero was born “Dean Harlon Resinger” and,
although his mother remarried a man with the surname “Soltero” when he
was two years old (at which time Soltero adopted this surname and pro-
ceeded to use it from that point forward), Soltero’s stepfather never for-
mally adopted him, and Soltero never officially changed his legal name.
See Black’s Legal Dictionary (8th ed. 2004) (defining “legal name” as the
name “usu[ally] acquired at birth or through a court order.”).
UNITED STATES v. SOLTERO 14109
[6] We agree. While it is possible that “Soltero” is the
defendant’s “true legal name” (as the government contends),8
we see no reason for the supervised release condition to
remain ambiguous when it could be so easily clarified. The
government does not object to defendant’s use of the surname
“Soltero” during his period of supervised release, and thus we
remand to the district court for it to revise the name condition
so as to require Soltero to use the last name “Soltero,” rather
than his ambiguous “true legal name.”
D. Conditions Relating to Gang Association
The final set of conditions Soltero disputes reads as fol-
lows:
Condition 8:
The defendant shall not associate with any known
member of any criminal street gang or disruptive
group as directed by the Probation Officer, specifi-
cally, any known member of the Delhi street gang;
Condition 9:
The defendant shall not be present in any area
known as a criminal street gang gathering of the
Delhi, as directed by the Probation Officer;
Condition 10:
The defendant shall not wear, display, use or possess
any insignia, emblem, button, badge, cap, hat, scarf,
bandana, jewelry, paraphernalia, or any article of
clothing which may connote affiliation with, or
membership in the Delhi gang.
8
As the government noted at sentencing, “Soltero” is the name reflected
in the defendant’s criminal history records, Social Security documentation,
and marriage license.
14110 UNITED STATES v. SOLTERO
The district court justified its imposition of these conditions
by stating that “defendant is a Delhi gang member and is pre-
sumably familiar with the relevant insignia, commonly known
gathering places, and pertinent members” of this gang.
Soltero nonetheless argues that the terms “associate,” “any
criminal street gang,” “disruptive group,” “any area known as
a criminal street gang gathering of the Delhi,” and “items that
connote affiliation with, or membership in the Delhi gang” are
impermissibly vague. United States v. Hugs, 384 F.3d 762,
768 (9th Cir. 2004) (“A [condition of supervised release] ‘vio-
lates due process of law if it either forbids or requires the
doing of an act in terms so vague that men of common intelli-
gence must necessarily guess at its meaning and differ as to
its application.’ ” (quoting United States v. Loy, 237 F.3d 251,
262 (3d Cir. 2001)). He also argues that the conditions are
overbroad because casual contact with others—including con-
tacts protected by the First Amendment—could render him in
violation of these conditions.
[7] While a district court’s discretion to set conditions of
supervised release is broad even when those conditions affect
fundamental rights, United States v. Bee, 162 F.3d 1232, 1234
(9th Cir. 1998), restrictions infringing upon fundamental
rights are “reviewed carefully,” United States v. Terrigno, 838
F.2d 371, 374 (9th Cir. 1988). A restriction on a defendant’s
right to free association is nonetheless valid if it: (1) “is rea-
sonably related to” the goals of deterrence, protection of the
public, and/or defendant rehabilitation; (2) “involves no
greater deprivation of liberty than is reasonably necessary” to
achieve these goals; and (3) “is consistent with any pertinent
policy statements issued by the Sentencing Commission pur-
suant to 28 U.S.C. § 994(a).” 18 U.S.C. § 3583(d); United
States v. Sales, 476 F.3d 732, 735 (9th Cir. 2007).
Here, the conditions imposed upon Soltero were, in all but
one respect, within the district court’s discretion to impose.
Conditions 9 and 10 are not impermissibly vague because
UNITED STATES v. SOLTERO 14111
they specifically reference the “Delhi gang,” and the district
court is entitled to presume that Soltero—who has admitted to
being a member of this gang—is familiar with the Delhi
gang’s members, its places of gathering, and its paraphernalia.
Hugs, 384 F.3d at 768; see also United States v. Ross, 476
F.3d 719, 722-23 (9th Cir. 2007) (upholding supervised
release condition requiring defendant to refrain from associat-
ing with known neo-Nazi/white supremacist groups); United
States v. Schiff, 876 F.2d 272, 276 (2d Cir. 1989) (condition
forbidding parolee from “associat[ing] with any group that
advocates non-compliance with the tax laws” not vague or
overbroad). Moreover, the conditions meet the criteria set
forth in 18 U.S.C. § 3583(d). See Ross, 476 F.3d at 721-22;
United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)
(“Probation conditions may seek to prevent reversion into a
former crime-inducing lifestyle by barring contact with old
haunts and associates, even though the activities may be
legal.”).
The portion of Condition 8 forbidding Soltero from “asso-
ciat[ing]” with “any known member of any criminal street
gang . . . , specifically, any known member of the Delhi street
gang,” is also permissible. As explained above, the term
“Delhi street gang” is sufficiently clear, as is the slightly more
ambiguous—but not unconstitutionally so—term “criminal
street gang.”9 The term “associate” is also not, as Soltero
argues, impermissibly vague. The Supreme Court has held
that “incidental contacts”—such as those Soltero fears he
would be punished for inadvertently engaging in—do not con-
stitute “association,” Arciniega v. Freeman, 404 U.S. 4, 5
9
Although it is not crucial to our finding that the meaning of “criminal
street gang” would be apparent to the average person, we note that 18
U.S.C. § 521(a) defines “criminal street gang” as “an ongoing group, club,
organization, or association of 5 or more persons . . . that has as [one] of
its primary purposes the commission of [one] or more of the criminal
offenses described in [18 U.S.C. § 521(c) and] . . . the members of which
engage, or have engaged within the past 5 years, in a continuing series of
offenses described in [§ 521(c)].”
14112 UNITED STATES v. SOLTERO
(1971), and we hold that, with this limitation, “men of com-
mon intelligence” need not guess at the meaning of “associa-
tion” in the context of Condition 8.10 Once again, that portion
of this condition meets the criteria set forth in 18 U.S.C.
§ 3583(d). See Bolinger, 940 F.2d at 480.
[8] Condition 8 crosses the line, however, in prohibiting
Soltero from associating with “any known member of any . . .
disruptive group.” As Soltero points out, the term “disruptive
group” has a broad meaning and could reasonably be inter-
preted to include not only a criminal gang, but also a labor
union on strike, a throng of political protesters, or a group of
sports fans celebrating after their team’s championship vic-
tory. It is not immediately apparent to us—and the govern-
ment makes no effort to explain—how prohibiting Soltero
from associating with the latter three “disruptive groups” is
“reasonably related” to a permissible goal of supervised
release, such as protection of the public or Soltero’s own
rehabilitation. See 18 U.S.C. § 3583(d); Sales, 476 F.3d at
735. Accordingly, the substantial encroachment upon
Soltero’s First Amendment rights created by the portion of
Condition 8 prohibiting him from associating with “any
known member of . . . any disruptive group” is without suffi-
cient justification and must be stricken. See Terrigno, 838
F.2d at 374 (“The mere fact that a condition restricts a proba-
tioner’s freedom to perform otherwise lawful activities is not
dispositive of the reasonableness of the condition. But if con-
ditions are drawn so broadly that they unnecessarily restrict
otherwise lawful activities they are impermissible.” (internal
citations omitted)).11 We thus remand to the district court for
10
We note that Soltero only violates the condition if the gang member
he associates with is known to him to be a gang member, thus undermining
his argument that he is “expected to know of every gang currently operat-
ing on the streets . . . as well as gangs operating after his release from
prison . . . .” See Ross, 476 F.3d at 722-23; see also United States v. John-
son, 446 F.3d 272, 281 (2d Cir. 2006) (“Generally, supervised release pro-
visions are read to exclude inadvertent violations.”).
11
The government argues that, read in context, it is clear that the term
“disruptive group” was intended to cover only those disruptive groups that
UNITED STATES v. SOLTERO 14113
it to excise this portion of Condition 8 from Soltero’s set of
supervised release conditions.
AFFIRMED in part and REMANDED in part.
HAWKINS, Circuit Judge, concurring in part and dissenting
in part:
I concur in all of the majority Opinion save that concerning
the treatment condition (Section II.B), which, in my view,
constitutes an impermissible delegation to the probation
office. As I read 18 U.S.C. § 3672, only courts are permitted
to decide whether, and to what extent, a defendant is required
to pay for drug treatment costs.
are also “gangs.” However, even if Soltero would only be prosecuted for
a supervised release violation if he associated with disruptive gangs (and
not if he associated with other arguably “disruptive groups”)—which, if
true, would make the condition redundant and, thus, unnecessary for the
government’s stated purposes—there is no way for Soltero to know this
from the condition’s plain language.
A probationer must be put on clear notice of what conduct will (and will
not) constitute a supervised release violation, a rule that is of particular
importance when the condition seems to reach constitutionally protected
conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir.
1970). An overly broad condition like this one cannot be “saved” merely
because the government promises to enforce it in a narrow manner. See
United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001) (A vague super-
vised release condition “cannot be cured by allowing the probation officer
an unfettered power of interpretation, as this would create one of the very
problems against which the vagueness doctrine is meant to protect, i.e., the
delegation of ‘basic policy matters to policemen . . . for resolution on an
ad hoc and subjective basis.’ ”); cf. Grayned v. City of Rockford, 408 U.S.
104, 109 (1972) (“[W]here a vague statute abuts upon sensitive areas of
basic First Amendment freedoms, it operates to inhibit the exercise of
those freedoms. Uncertain meanings inevitably lead citizens to steer far
wider of the unlawful zone . . . than if the boundaries of the forbidden
areas were clearly marked.” (internal quotation marks, alterations, cita-
tions, and footnotes omitted)).
14114 UNITED STATES v. SOLTERO
Although we considered a nearly identical supervised
release condition in United States v. Dupas, 419 F.3d 916 (9th
Cir. 2005), we did so under the plain error standard of review
because, unlike Soltero, Dupas failed to make a timely objec-
tion to imposition of the condition. Dupas thus left open the
question whether imposing this condition constituted legal
error. See id. at 924 (concluding that if it was error to impose
the condition, that error was not plain). We are now asked to
answer the question left open in Dupas: May a district court—
consistent with Article III’s prohibition against delegating
sentencing decisions to probation offices, see United States v.
Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005)—allow the
probation office to decide whether a defendant will be
required to pay all or part of the costs of treating his or her
substance dependency?
As a general rule, although a sentencing court must deter-
mine “whether a defendant must abide by a condition, and
how . . . a defendant will be subjected to the condition,” the
court may “delegate to the probation officer the details of
where and when the condition will be satisfied.” Stephens,
424 F.3d at 880. Under our Constitution, the power to punish
is exclusively judicial, see Ex parte United States, 242 U.S.
27, 41-42 (1916), and thus the important limitation on a dis-
trict court’s discretion is that it may not delegate to the proba-
tion office the job of “decid[ing] the nature or extent of the
punishment imposed upon a probationer,” United States v.
Pruden, 398 F.3d 241, 250 (3d Cir. 2005).
In United States v. Warden, 291 F.3d 363 (5th Cir. 2002),
the Fifth Circuit considered a remarkably similar (though not
identical) supervised release condition, which stated: “The
defendant will incur the costs associated with [several coun-
seling and treatment] programs, based on ability to pay as
determined by the probation officer.” Id. at 364. The court in
Warden upheld the condition, explaining that, per the condi-
tion’s plain language, “the probation officer [was] given only
the responsibility to make a determination as to [the defen-
UNITED STATES v. SOLTERO 14115
dant’s] ability to pay, a factfinding determination commonly
made by probation officers in other contexts.” Id. at 366
(emphasis added). The Fifth Circuit thus implicitly drew a
distinction between the sentencing decision itself, which was
made by the court when it ordered Warden to pay all the costs
associated with his treatment, see id. at 364 (“The defendant
will incur the costs . . . .” (emphasis added)), and the execu-
tion of that sentence, which was left to the probation office
based on its assessment (and perhaps its periodic reassess-
ment) of the defendant’s financial situation.
The distinction drawn by the Fifth Circuit makes good
sense. As a practical matter, probation offices are already
charged with making ability to pay determinations in other con-
texts,1 and are almost always in possession of the information
needed to make these determinations accurately and expedi-
ently. See United States Sentencing Guidelines Manual
§ 5D1.3(c)(15) (2000) (standard supervised release condition
requires defendants to “notify the probation office[ ] of any
material change[s] in the [their] economic circumstances that
might affect [their] ability to pay any unpaid amount of resti-
tution, fines, or special assessments”). I agree there is no
sound reason to burden district courts with such matters when
the purely administrative task of determining an individual’s
ability to pay can be left in the capable hands of institutions
that regularly make such determinations.
I also agree that the condition upheld in Warden comports
with the Article III requirement that the court, not the proba-
tion office, “impose the [defendant’s] punishment,” Ex parte
1
See, e.g., 18 U.S.C. § 3664 (requiring probation office to include, in
every PSR it prepares for crimes described in 18 U.S.C. § 3663A(c), “in-
formation sufficient for the court to exercise its discretion in fashioning a
restitution order,” including “information relating to the economic circum-
stances of each defendant”—i.e., its calculation of the defendant’s ability
to pay); United States v. Rearden, 349 F.3d 608, (9th Cir. 2003) (discuss-
ing probation office’s role in ascertaining a defendant’s ability to pay a
fine).
14116 UNITED STATES v. SOLTERO
United States, 242 U.S. at 41-42, as well as the 18 U.S.C.
§ 3672 requirement that the “court[, not the probation office,]
. . . direct the payment of [treatment costs],” if any. The War-
den court made it clear that part of the defendant’s punish-
ment was to pay for all of his own rehabilitative treatment
costs—a requirement the defendant was ordered to fulfill
unless the probation office later determined he was financially
unable to do so. The Warden court could have directed the
defendant to pay none of his treatment costs, or to pay only
the first $250 of those costs, depending on the circumstances
of the particular case. While the court left to the probation
office the administrative detail of calculating the defendant’s
ability to pay, the court itself decided whether the defendant’s
punishment should include payment of some, all, or none of
his rehabilitative costs, as Article III and § 3672 required it to
do.
If the condition imposed upon Soltero were identical to that
imposed in Warden, I would have no trouble upholding it.
Unfortunately, where the Warden condition explicitly directed
the defendant to pay the full costs of his treatment and dele-
gated only the ability to pay determination to the probation
office, the condition here goes a step further and delegates to
the probation office responsibility for determining not only
the defendant’s ability to pay for court-ordered treatment, but
also whether the defendant should be required to pay for
some, all, or none of the treatment in the first instance. In
essence, the condition here delegates the entire sentencing
decision—not just the ministerial “ability to pay” computation
—to a non-judicial officer.
While, in practice, this may be only a semantic distinction
—as it is likely a probation office faced with the condition in
Warden and the condition imposed here would reach the same
result (i.e., the office would compute the defendant’s ability
to pay and then require the defendant to pay treatment costs
up to that amount)—deciding whether a defendant should be
forced to pay for rehabilitative treatment (and, if so, to what
UNITED STATES v. SOLTERO 14117
extent) is a decision that is punitive in nature and, thus, Arti-
cle III requires it to be made by a judge, not a probation offi-
cer. Ex parte United States, 242 U.S. at 41-42; Stephens, 424
F.3d at 880-81. I sympathize with the district court’s inclina-
tion to delegate an administrative task to an administrative
agency whose information about a defendant’s financial situa-
tion may be superior to its own; however, the way in which
the district court sought to achieve that end here delegates too
much.