Case: 16-30892 Document: 00514220799 Page: 1 Date Filed: 11/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30892 FILED
Summary Calendar November 1, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
STEVEN PAUL BANKS,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
No. 6:15-CR-80-2
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge: *
Steven Banks was sentenced to 120 months’ imprisonment and four
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-30892
years’ supervised release (“SR”) for conspiracy to distribute cocaine and crack
cocaine in violation of 21 U.S.C. § 846. He appeals his conviction and sentence,
maintaining that the court erred when it (1) determined that he was a career
offender under U.S. Sentencing Guidelines § 4B1.1 and (2) imposed, as a spe-
cial condition of SR, that he participate in a substance-abuse program as dir-
ected by the probation officer.
First, Banks contends that the district court erred in applying the
§ 4B1.1 career enhancement because it failed to make an independent evalua-
tion of his eligibility for the enhancement. Banks’s theory is that the court
impermissibly delegated legal determinations to the federal probation officer.
Because Banks did not raise this argument in the district court, review is only
for plain error. See United States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th
Cir. 2016).
Because there was no objection, the court was not required to issue a
ruling on the enhancement. See FED. R. CRIM. P. 32(i)(3)(B). In addition,
because he has not challenged that determination on appeal, Banks has waived
any argument that his convictions under Louisiana Revised Statutes
§ 40:966(A) and § 40:967(A) and (F) are not controlled-substance offenses for
purposes of § 4B1.1. See United States v. Lopez-Velasquez, 526 F.3d 804, 808
n.2 (5th Cir. 2008). Banks is correct that a district court may not rely solely
on a presentence report’s characterization of a prior offense as a controlled-
substance offense for the purpose of the career-offender guideline. See United
States v. Jenkins, 487 F.3d 279, 281 (5th Cir. 2007). But even if the district
court plainly erred in doing so, Banks has not shown that the error affected his
substantial rights, because he has failed to offer any argument that the career
offender enhancement was ultimately wrong. “As [he] has failed to make the
argument, we need not determine whether the statutes at issue define
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[controlled substance offenses].” United States v. Ochoa-Cruz, 442 F.3d 865,
867 (5th Cir. 2006).
With respect to Banks’s second issue, the district court ordered that,
“[s]hould the probation office deem it necessary, [Banks is] to participate in a
substance abuse program as directed by the probation office.” The written
judgment contains nearly identical language. Banks posits that the wording
of this special condition of SR impermissibly delegated to the probation officer
the court’s responsibility to determine whether Banks must participate in
treatment. Because Banks did not raise this argument in the district court,
review is for plain error only. See Puckett v. United States, 556 U.S. 129, 135
(2009).
The imposition of conditions of SR “is a core judicial function that may
not be delegated.” United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016)
(internal quotation marks and citation omitted). Banks has shown clear or
obvious error, because the special condition delegated authority to the proba-
tion officer not only to implement treatment but to decide whether it was nec-
essary. See Puckett, 556 U.S. at 135; Franklin, 838 F.3d at 568. For purposes
of this appeal, we assume arguendo that the error affected Banks’s substantial
rights, though the government argues persuasively that “it is difficult to imag-
ine that the district court, acting directly, would not impose a condition of [SR]
requiring substance abuse treatment [, so] Banks cannot show a probability
that the district court’s alleged error ultimately affects his sentence.”
That leaves us to consider only whether the error “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Puckett,
556 U.S. at 135; Franklin, 838 F.3d at 568. Granting relief under this fourth
prong of the plain-error analysis is not automatic. “[E]ven if an increase in a
sentence be seen as inevitably ‘substantial’ in one sense it does not inevitably
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affect the fairness, integrity, or public reputation of judicial process and pro-
ceedings.” United States v. Ellis, 564 F.3d 370, 378−79 (5th Cir. 2009)
(Higginbotham, J.).
There is nothing unfair about this result. It falls far short of
affecting―much less “seriously affecting” (as the Supreme Court in Puckett
required)―the integrity of the process for Banks to receive substance-abuse
treatment, given the nature of the offense. “To conclude that not correcting
the error claimed here casts doubt upon the fairness, integrity, or reputation
of the proceeding drains all content from the doctrine of plain error.” Id. at 379.
Even assuming the other three prongs are satisfied, we decline to exercise our
discretion to correct this unpreserved error.
The judgment of conviction and sentence is AFFIRMED.
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