16‐3458‐cr
United States v. Young
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 16‐3458‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
ALLEN M. YOUNG,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Western District of New York
SUBMITTED: AUGUST 17, 2018
DECIDED: DECEMBER 12, 2018
Before: CABRANES and LYNCH, Circuit Judges, and KORMAN, District
Judge.*
The principal question presented is whether the District Court
improperly delegated its judicial authority to the United States
Probation Office when it ordered as a special condition of supervised
release that the defendant submit to mental health and substance
abuse testing and evaluation and follow “any treatment
recommendations.” The defendant further argues that his sentence is
procedurally unreasonable because: (1) the District Court erroneously
applied the official victim enhancement of United States Sentencing
Guidelines section 3A1.2(c)(1); and (2) the District Court failed to grant
a downward departure pursuant to United States Sentencing
Guidelines section 5K2.23. We conclude that the District Court did not
improperly delegate its judicial authority and that the sentence is not
procedurally unreasonable and therefore AFFIRM the October 11,
2016 judgment of the United States District Court for the Western
District of New York (Frank P. Geraci, Jr., Judge).
Judge Lynch concurs in part and dissents in part in a separate
opinion.
* Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.
2
Monica J. Richards, Assistant United States
Attorney for James P. Kennedy, Jr., United
States Attorney, Western District of New
York, Buffalo, NY, for Appellee.
John A. Kuchera, Waco, TX, for Defendant‐
Appellant.
JOSÉ A. CABRANES, Circuit Judge:
The principal question presented is whether the District Court
improperly delegated its judicial authority to the United States
Probation Office when it ordered as a special condition of supervised
release that the defendant submit to mental health and substance
abuse testing and evaluation and follow “any treatment
recommendations.” The defendant Allen M. Young (“Young”) further
argues that his sentence is procedurally unreasonable because: (1) the
District Court erroneously applied the official victim enhancement of
United States Sentencing Guidelines section 3A1.2(c)(1); and (2) the
District Court failed to grant a downward departure pursuant to
United States Sentencing Guidelines section 5K2.23. We conclude that
the District Court did not improperly delegate its judicial authority
and that the sentence is not procedurally unreasonable and therefore
AFFIRM the October 11, 2016 judgment of the United States District
Court for the Western District of New York (Frank P. Geraci, Jr., Judge).
3
I. BACKGROUND
Young appeals from an October 11, 2016 judgment of the
District Court convicting him, following a guilty plea, of possession
with intent to distribute methylone in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 851. The District Court sentenced Young
to 200 months’ imprisonment to be followed by six years of supervised
release, as well as a special assessment. On appeal, Young argues that
the District Court erred by delegating to the Probation Office the
decision of whether Young, upon release, would be required to
participate in mental health or substance abuse treatment. He further
argues that his sentence is procedurally unreasonable because: (1) the
District Court erroneously applied the official victim enhancement of
United States Sentencing Guidelines section 3A1.2(c)(1);1 and (2) the
District Court failed to grant a downward departure pursuant to
United States Sentencing Guidelines section 5K2.23.2
Section 3A1.2(c)(1) of the Sentencing Guidelines provides in relevant part:
1
If, in a manner creating a substantial risk of serious
bodily injury, the defendant . . . knowing or having
reasonable cause to believe that a person was a law
enforcement officer, assaulted such officer during the
course of the offense or immediate flight therefrom
. . . increase by 6 levels.
Section 5K2.23 of the Sentencing Guidelines provides in relevant part:
2
A downward departure may be appropriate if the
defendant (1) has completed serving a term of
imprisonment; and (2) subsection (b) of § 5G1.3 . . .
would have provided an adjustment had that
4
We review the imposition of conditions of supervised release for
“abuse of discretion.”3 We review legal issues arising from the
imposition of such conditions de novo, and of course an error of law
constitutes an abuse of discretion.4 When a defendant fails to object to
a condition, we typically review for plain error, but we may “relax the
otherwise rigorous standards of plain error review” under certain
circumstances, such as where a defendant lacked prior notice of the
challenged condition.5
The procedural reasonableness of a sentence is likewise
reviewed for “abuse of discretion.”6 A district court’s interpretation of
the Guidelines is reviewed de novo; its findings of fact are reviewed
for clear error.7
completed term of imprisonment been undischarged
at the time of sentencing for the instant offense.
3 United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010). See also In re City of
New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010); Sims v. Blot, 534 F.3d 117, 132 (2d
Cir. 2008) (“A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence or
rendered a decision that cannot be located within the range of permissible
decisions.” (brackets, citations, and internal quotation marks omitted)).
4 Reeves, 591 F.3d at 80.
5 United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002).
6 United States v. Robinson, 799 F.3d 196, 201 (2d Cir. 2015).
7 United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012).
5
II. DISCUSSION
A. Delegation to the Probation Office
1. Law
United States probation officers serve as “officers of the court.”8
In their capacity as confidential advisers to the court, federal probation
officers are regarded as “the court’s eyes and ears, . . . neutral
information gatherer[ers] with loyalties to no one but the court.”9
Indeed, because “the United States Probation Office is established
pursuant to the direction of Congress as an arm of the United States
District Court, it is reasonable to view the United States Probation
Office itself as a legally constituted arm of the judicial branch.”10
Although the Probation Office is undeniably part of the federal
judiciary, we have nonetheless stated that there are limits on a District
Court’s ability to delegate judicial authority to a probation officer.
In determining whether the District Court impermissibly
delegated its authority to the United States Probation Office when it
imposed on Young special mental health and substance abuse
United States v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002) (internal quotation
8
marks and citation omitted).
9 Id. (citation and internal quotation marks omitted).
10 Id. (brackets, citations, and internal quotation marks omitted).
6
conditions, we are guided by this Court’s precedents in United States
v. Peterson11 and United States v. Matta.12
In Peterson, we confronted the following special condition of
probation: “[T]he defendant is to enroll, attend and participate in
mental health intervention specifically designed for the treatment of
sexual predators as directed by the U.S. Probation Office.”13 Our
discussion focused principally on the ambiguity in the special
condition’s language. We noted that while the first clause (“[t]he
defendant is to enroll, attend and participate”) suggests that mental
health treatment is mandatory, the second clause (“as directed by the
U.S. Probation Office”) could be understood to qualify the mandatory
nature of that obligation.14 We vacated and remanded this aspect of
the sentence so that, upon resentencing, the district court could resolve
this ambiguity and clarify whether it intended mandatory therapy. As
we explained, “[i]f the district court intends that the therapy be
mandatory but leaves a variety of details, including the selection of a
therapy provider and schedule to the probation officer, such a
condition of probation may be imposed.”15 If, however, “the court
intends to leave the issue of the defendant’s participation in therapy to
the discretion of the probation officer, such a condition would
11 248 F.3d 79 (2d Cir. 2001).
12 777 F.3d 116 (2d Cir. 2015).
13 Peterson, 248 F.3d at 84‐85 (emphasis in original).
14 Id. at 85.
15 Id.
7
constitute an impermissible delegation of judicial authority and
should not be included.”16 In sum, it was the district court’s inclusion
of the clause “as directed by the U.S. Probation Office” that rendered
the otherwise mandatory special condition of counseling ambiguous
and potentially unlawful.
In Matta, we addressed a special condition of supervised release
which left “to the discretion of Probation” the decision of whether an
inpatient or outpatient program was “most appropriate.”17 We
remanded, holding that “a district court may not delegate to the
Probation Department decisionmaking authority which would make
a defendant’s liberty itself contingent on a probation officer’s exercise
of discretion.”18 In sum, because inpatient treatment “affects a
significant liberty interest,” it cannot be imposed by a probation officer
in his or her supervisory capacity, but must instead be “imposed by
the district court and supported by particularized findings that it does
not constitute a greater deprivation of liberty than reasonably
necessary to accomplish the goals of sentencing.”19
16 Id.
17 Matta, 777 F.3d at 122.
18 Id.
19 Id. at 123.
8
2. Analysis
On appeal, Young challenges the special conditions as recorded
in the written judgment. The written judgment states the special
conditions of supervised release as follows:
The defendant shall submit to substance
abuse testing, to include urinalysis and other
testing. Details of such testing to be
approved by the U.S. Probation Office. If
substance abuse is indicated by testing, the
defendant is to complete a drug/alcohol
evaluation and enter into any treatment as
deemed necessary by the U.S. Probation Office
and/or the Court. The defendant is not to
leave treatment until discharge is agreed to by
the U.S. Probation Office and/or the Court. . . .
The defendant is to submit to a mental health
evaluation. If indicated by the evaluation, the
defendant shall participate in mental health
treatment, the details of such treatment to be
approved by the U.S. Probation Office. The
defendant is not to leave such treatment until
discharge is agreed to by the U.S. Probation
Office and the treating agency. . . .20
20 Appellant App’x 32 (emphasis added).
9
Pointing to the text emphasized above, Young argues that the special
conditions unlawfully delegate judicial authority to the Probation
Office.
Importantly, the decretal text Young complains of appears only
in the written judgment. By contrast, during the sentencing hearing,
the District Court orally pronounced the special conditions as follows:
You must submit to drug testing and
evaluation and follow any treatment
recommendations.
You also must submit to mental health
testing, evaluation, and any treatment
recommendations.21
Insofar as there is a variance between the written and oral
conditions, the District Court’s oral pronouncement controls.22 Later
written modifications of the terms of supervised release omitted from
the oral pronouncement are permitted where they add: (1) conditions
of supervised release listed as “mandatory” or “standard” in
subsections 5D1.3(a) or (c) of the United States Sentencing Guidelines;
(2) conditions “recommended” by subsection 5D1.3(d) of the
Guidelines;23 and (3) “basic administrative requirements that are
21 Id. at 65.
22 United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004).
23 Subsection 5D1.3(d) of the Guidelines lists as “recommended” certain
“special” conditions, including the following:
10
necessary to supervised release.”24
a. Substance Abuse Condition
The first written condition—the “Substance Abuse
Condition”—appears to suffer from precisely the same defect as the
condition found objectionable in Peterson. Whereas the first clause
(“defendant is to complete a drug/alcohol evaluation and enter into
any treatment”) suggests that substance abuse treatment is
mandatory, the second clause (“as deemed necessary by the U.S.
Probation Office”) can be understood to delegate authority to the
Probation Office. As in Peterson, it is unclear from this written
condition whether the District Court is mandating treatment if
(4) Substance Abuse
If the court has reason to believe that the defendant is
an abuser of narcotics, other controlled substances or
alcohol – (A) a condition requiring the defendant to
participate in a program approved by the United
States Probation Office for substance abuse, which
program may include testing to determine whether
the defendant has reverted to the use of drugs or
alcohol; and (B) a condition specifying that the
defendant shall not use or possess alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is
in need of psychological or psychiatric treatment – a
condition requiring that the defendant participate in
a mental health program approved by the United
States Probation Office.
24 Rosario, 386 F.3d at 169 (internal citations and quotation marks omitted).
11
indicated by evaluation, or leaving the ultimate decision of whether to
require treatment to the Probation Office.
By contrast, the District Court’s oral pronouncement of the
Substance Abuse Condition—which controls—unambiguously
requires Young to enroll in substance abuse treatment if indicated by
testing. Unlike Peterson, the oral Substance Abuse Condition does not
contain a subordinate clause that renders ambiguous an otherwise
mandatory obligation. Rather, insofar as evaluation indicates a need
for treatment, the treatment is mandatory pursuant to the oral
pronouncement; it does not constitute an improper delegation of
judicial authority. The remainder of the written Substance Abuse
Condition is fully consistent with both the oral instructions of the
District Court as a “basic administrative requirement.”25 It stands and
properly authorizes the Probation Office to supervise and oversee that
treatment.
In light of Matta, however, we construe this authorization to
exclude the imposition of inpatient treatment.26 Under Matta, the
25 Rosario, 386 F.3d at 169.
26 We recognize that certain outpatient treatment programs may be
sufficiently restrictive so as to invoke the “significant liberty interest[s]” that
motivated this Court’s holding in Matta. See Matta 777 F.3d at 122‐23. We are
assured, however, by 18 U.S.C. § 3583(e)(2) and Rule 32.1(c) of the Federal Rules of
Criminal Procedure, that “in cases of neglect, overwork, or simply
unreasonableness on the part of the probation officer, the probationer should have
recourse to the sentencing court when a condition needs clarification or
modification.” Fed. R. Crim. P. 32.1 advisory committee’s notes (1979). See United
States v. Padilla, 415 F.3d 211, 223 (1st Cir. 2005) (“We believe that this remedial
12
imposition of inpatient treatment must be “supported by
particularized findings that it does not constitute a greater deprivation
of liberty than reasonably necessary to accomplish the goals of
sentencing.”27 The Court made no such findings here. We also construe
this authorization to apply to the entirety of Young’s term of
supervised release.
b. Mental Health Condition
Unlike the written Substance Abuse Condition, the written
“Mental Health Condition” constitutes an unambiguously lawful, and
indeed advisable, means of delegating supervisory authority to the
Probation Office. The written Mental Health Condition—“If indicated
by the evaluation, the defendant shall participate in mental health
treatment . . . .” 28—clearly and unambiguously orders Young’s
participation in mental health treatment. It leaves to the Probation
Office’s discretion only the approval of “details of such treatment,”29
which is clearly permissible under Peterson.30
regime provides adequate means for redress should the probation officer attempt
to ride roughshod.”).
27 Matta, 777 F.3d at 123 (internal quotation marks and citation omitted).
28 Appellant App’x 32.
29 Id.
Peterson, 248 F.3d at 85 (“If the district court intends that the therapy be
30
mandatory but leaves a variety of details, including the selection of a therapy
provider and schedule to the probation officer, such a condition of probation may
be imposed.”).
13
The oral “Mental Health Condition” is no different; it similarly
mandates treatment for Young if treatment is indicated by a mental
health evaluation. As with the Substance Abuse Condition, we
construe the Mental Health Condition to exclude inpatient treatment,
since such “restrictive” programs must be supported by particularized
findings. 31 We also construe the District Court’s authorization to apply
to the entirety of Young’s term of supervised release.32
B. Procedural Reasonableness of Young’s Sentence
1. Official Victim Enhancement
Young argues that his sentence is procedurally unreasonable
because the District Court erroneously applied the official victim
31 Matta, 777 F.3d at 123.
32 The dissent argues that our construction of the authority conferred on the
probation officer by the oral conditions of supervised release is broader than our
precedents permit. Nevertheless, it concedes that such a delegation would
“certainly be defensible,” given the “cumbersome” alternative of “requir[ing] the
Probation Office to return to the court . . . to modify the conditions of release to
require treatment,” if indicated by testing. See Dissent at 24. While the dissent
would have probation officers seek further judicial approval for post‐sentence
treatment, our holding avoids this potentially unnecessary intervention while
permitting defendants to seek judicial review of any overreach. See supra note 26.
Here, in imposing sentence, the District Court—not the probation officer—
mandated that the defendant undergo evaluation and, if necessary, treatment. And
it is the District Court that has the final word upon review. See 18 U.S.C. § 3583(e)(2)
(“The court may . . . modify, reduce, or enlarge the conditions of supervised release,
at any time prior to the expiration or termination of the term of supervised release
. . . .”). Under either our approach or that of the dissent, “[t]he power to impose
special conditions of supervised release” remains “vested exclusively in the district
court.” Matta, 777 F.3d at 122.
14
enhancement of United States Sentencing Guidelines section
3A1.2(c)(1). Young appears to argue that he did not “assault” law
enforcement officers within the meaning of section 3A1.2(c)(1) because
he did not intend to hit the officers with his car or to cause them fear
and did not realize that the individuals toward whom he drove his
vehicle were police officers.
The official victim enhancement of Guidelines section
3A1.2(c)(1) provides as follows:
If, in a manner creating a substantial risk of
serious bodily injury, the defendant . . .
knowing or having reasonable cause to
believe that a person was a law enforcement
officer, assaulted such officer during the
course of the offense or immediate flight
therefrom . . . increase by 6 levels.33
We have already held, in a somewhat different context, that the word
“assault” refers to the common‐law offense of assault.34 “[C]ommon‐
law assault consisted of either attempted battery or the deliberate
infliction upon another of a reasonable fear of physical injury . . . .”35
In applying this Guidelines provision during the sentencing
hearing, the District Court stated as follows:
33 U.S. SENTENCING GUIDELINES MANUAL § 3A1.2(c)(1) (emphasis added).
34 See United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009).
35 Id.
15
Sentencing Guideline 3A1.2(c) indicates that
there should be a six level increase to the
offense level if the defendant acted in a
manner creating a substantial risk of serious
bodily injury knowing or having reasonable
cause to believe that a person was a law
enforcement officer during the course of the
offense or the immediate flight therefrom.
Again, based upon the evidence that the
Court found credible at the hearing, the
Court finds that there was more than
sufficient evidence, clearly more than a
preponderance of the evidence that the
defendant created a substantial risk of
serious bodily injury to the officers who were
attempting to execute the search warrant on
this occasion on him and on his motor vehicle
on December 13th, 2012.
That he created a substantial risk of serious
injury to the officers when he initially
reversed his vehicle at a high speed while the
officers were beside the vehicle, more
importantly, when he drove his vehicle
directly at one of the officers.
The Court finds that the defendant’s
argument that he did not know that the
individuals involved were police officers . . .
is not credible or logical based upon the
evidence in this case, including evidence that
the two officers were wearing badges around
16
their neck as they approached him and yelled
multiple times in loud voices please stop.36
Therefore, the Court finds the evidence is
really quite overwhelming regarding the
defendant’s action in creating a substantial
risk of serious bodily injury to these officers
and, therefore, the six level increase pursuant
to Guideline Section 3A1.2(c) shall be
applied.37
We conclude that this record is sufficient to sustain the District
Court’s application of the official victim enhancement. The record
supports the District Court’s finding by a preponderance of the
evidence that Young knew or had reasonable cause to know that the
individuals involved were law enforcement officials. Moreover, the
District Court’s findings adequately support a conclusion that Young
committed an assault by driving his car directly at one of the officers.38
36 Elsewhere in the record, including the evidentiary hearing upon which
the District Court’s conclusion was based, it appears that the officers stated “Police.
Stop.” Gov’t App’x 69 (hearing transcript); 121 (decision and order of the District
Court).
37 Gov’t App’x 125‐126. On the day following the sentencing hearing, the
District Court entered a “decision and order” repeating substantially the same
reasoning and conclusion regarding the application of Section 3A1.2(c). See Gov’t
App’x 117‐121; Appellant App’x 19 (docket sheet entry).
United States v. Washington, 73 F. Appʹx 501, 504 (2d Cir. 2003) (citing
38
analogous cases).
17
Accordingly, the District Court did not err by applying section
3A1.2(c) to Young.
2. Section 5K2.23 Downward Departure
Young also argues that his sentence is procedurally
unreasonable because the District Court failed to grant a downward
departure to account for the time he spent in presentence state custody
before his federal conviction. Young’s main theory in support of this
argument is that the District Court improperly failed to apply United
States Guidelines section 5K2.23.
Because Young failed to raise this objection before the District
Court, we review the procedural reasonableness of his sentence for
plain error.39
Guidelines section 5K2.23 (“Discharged Terms of Imprisonment
(Policy Statement)”) provides in relevant part:
39 See United States v. Parse, 789 F.3d 83, 119‐20 (2d Cir. 2015) (quoting Johnson
v. United States, 520 U.S. 461, 466‐67 (1997)) (plain error standard). As a general rule,
“a refusal to downwardly depart is . . . not appealable.” United States v. Stinson, 465
F.3d 113, 114 (2d Cir. 2006) (internal quotations and citation omitted). Appellate
review is available, however, “when a sentencing court misapprehended the scope
of its authority to depart or the sentence was otherwise illegal.” United States v.
Valdez, 426 F.3d 178, 184 (2d Cir. 2005) (citations omitted). Defendant argues that
the District Court was unaware of its authority to depart, and points to the
Presentence Report, which states that there are “no circumstances concerning the
offense or the offender that would warrant a departure from the prescribed
guidelines.” PSR ¶ 111. We thus review for plain error.
18
A downward departure may be appropriate
if the defendant (1) has completed serving a
term of imprisonment; and (2) subsection (b)
of § 5G1.3 . . . would have provided an
adjustment had that completed term of
imprisonment been undischarged at the time
of sentencing for the instant offense.40
We conclude that Young’s sentence is not procedurally
unreasonable, because Young did not qualify for a downward
departure under section 5K2.23. Section 5K2.23 incorporates the terms
of Guidelines section 5G1.3(b).41 Guidelines section 5G1.3(b), for its
part, can apply only if “a term of imprisonment resulted from another
40 U.S. SENTENCING GUIDELINES MANUAL § 5K2.23.
41 Section 5G1.3(b) of the Guidelines provides as follows:
If subsection (a) does not apply, and a term of
imprisonment resulted from another offense that is
relevant conduct to the instant offense of conviction
under the provisions of subsections (a)(1), (a)(2), or
(a)(3) of § 1B1.3 (Relevant Conduct), the sentence for
the instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period
of imprisonment already served on the undischarged
term of imprisonment if the court determines that
such period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of the
undischarged term of imprisonment.
19
offense that is relevant conduct to the instant offense of conviction.”42
Young had been held in custody on related New York state charges,
but he himself concedes that he was never sentenced to prison for the
conduct charged in New York state court.43 Since Young never
received a “term of imprisonment,” he has not satisfied the second
condition of Guidelines section 5K2.23; therefore, section 5K2.23
cannot have applied to Young’s case. Accordingly, the District Court’s
failure to consider section 5K2.23 when determining Young’s sentence
does not qualify as error, much less plain error.44
III. CONCLUSION
In summary, we hold that the District Court did not improperly
delegate to the United States Probation Office the decision of whether
Young would be required to undergo treatment. A district court may
mandate, in advance of testing and evaluation, any necessary or
recommended outpatient treatment, and may authorize the Probation
42 U.S. SENTENCING GUIDELINES MANUAL § 5G1.3(b).
See Appellant Br. 27 (“Subsection (b) does not apply because Young was
43
not actually assessed a term of imprisonment on his state charges.”).
Young also appears to argue that his presentence investigation report
44
should have included information about the time he had spent in state custody and
that the District Court should have credited him for that time. The record indicates
that the District Court failed to take into account the five and a half months Young
had already spent in state custody. Nevertheless, the U.S. Attorney argues that the
Bureau of Prisons gave Young credit for time served. While Young disputes the
accuracy of the calculation, we agree with the U.S. Attorney that the defendant has
available to him administrative remedies and, if necessary, a petition pursuant to
28 U.S.C. § 2241 to correct any error.
20
Office to approve and oversee the details of such treatment. This
authorization lasts for the entirety of the defendant’s term of
supervised release. To mandate inpatient treatment, a district court
must make particularized findings that such a course of treatment
does not constitute a greater deprivation of liberty than reasonably
necessary to accomplish the goals of sentencing. We further hold that
Young’s sentence is not procedurally unreasonable.
We therefore AFFIRM the District Court’s judgment of October
11, 2016.
21
16‐3458‐cr
United States v. Young
1 GERARD E. LYNCH, Circuit Judge, concurring in part and dissenting in
2 part:
3 I fully concur in the Court’s opinion insofar as it holds that
4 Young’s sentence was procedurally reasonable. I respectfully dissent
5 from that portion of the opinion that upholds the challenged
6 conditions of supervised release, because I believe that the conditions,
7 as they appear both in the written judgment and in the oral
8 pronouncement of sentence, are inconsistent with United States v.
9 Peterson, 248 F.3d 79 (2d Cir. 2001), and United States v. Matta, 777 F.3d
10 116 (2d Cir. 2015), in which we found that similar conditions
11 improperly delegated the Court’s authority to the Probation Office. I
12 do not disagree with the Court’s explanation of the governing
13 principle. My disagreement is with its characterization of the
14 conditions imposed in this case.
15 The Court construes the oral Substance Abuse Condition as
16 “mandatory” because it “does not contain a subordinate clause that
17 renders ambiguous an otherwise mandatory obligation.” Maj. Op. 12.
18 The condition is indeed “mandatory” in that it uses mandatory
19 language to the defendant (“You must . . .”). But with respect to
20 treatment, what Young is mandated to do is whatever the Probation
21 Officer (or perhaps someone other than the Probation Officer) decides
22 should be done: “You must submit to drug testing and evaluation and
23 follow any treatment recommendations.” Appellant App’x 65 (emphasis
24 added). Unlike the Court in Matta, the district court did not decide that
25 drug treatment of any kind was necessary, nor did it require that
26 Young participate in such treatment. The obligation is conditional:
1 Young must participate in drug treatment only if enrollment in a drug
2 treatment program is “recommend[ed]” by whoever performs the
3 “testing and evaluation.” Id. The condition imposed does not even
4 require Young to obtain treatment if he fails a urine test for an illicit
5 substance; if it did that, it could be argued that the judge had imposed
6 drug treatment whenever a putatively objective test result showed
7 drug use, leaving the Probation Officer in that case with only the
8 ministerial task of arranging for (non‐residential) drug treatment.
9 Instead, participation in drug treatment is required only upon a
10 “recommendation,” based on a subjective “evaluation” of whether a
11 positive test result — presumably along with other evidence relevant
12 to whether the failure was a one‐time lapse or indicative of a
13 continuing problem requiring treatment — indicates to the evaluator
14 (perhaps the Probation Officer, perhaps some independent medical or
15 drug treatment agency subcontracted to perform the “evaluation”)
16 that such treatment is indicated.1
1 Reference to the written judgment confirms this reading of the oral
condition. The written condition, like the oral condition, unambiguously and
without qualification requires drug testing. But it makes absolutely clear that the
district court requires drug treatment only conditionally, and only at the discretion
of the Probation Office: “If substance abuse is indicated by testing, the defendant is
to complete a drug/alcohol evaluation [not, “to enter a treatment program”] and enter
into any treatment as deemed necessary by the U.S. Probation Office.” Appellant App’x
32 (emphasis added). The Court is correct, of course, that the oral pronouncement
of sentence controls over any inconsistent provision of the written judgment. But
here, the written judgment seems to me entirely consistent with my reading of the
oral condition (and indeed, I do not read the Court’s opinion as disagreeing with
my reading of what the oral condition actually requires; it simply characterizes the
condition, so interpreted, as “mandatory”).
23
1 The Mental Health Condition is similarly structured. It too (in
2 its oral version) requires Young to “submit to mental health testing,
3 evaluation, and any treatment recommendations.” Id. This condition
4 thus plainly requires mental health treatment (as construed by the
5 majority, limited to outpatient treatment) only if such treatment is
6 recommended by whoever performs the evaluation.2 The Mental Health
7 Condition is, if anything, even clearer than the Drug Treatment
8 Condition in delegating the determination of whether such treatment
9 is appropriate not merely to the Probation Officer (who presumably is
10 not a trained or licensed mental health practitioner), but to a
11 psychiatrist, psychologist, or other mental health professional who
12 would be tasked with evaluating the defendant and determining
13 whether he requires treatment. I do not see how this can be construed
14 as a determination by the district court that Young is mandated to
15 submit to mental health treatment as a condition of his release. It
16 requires such treatment only at the discretion of someone other than
17 the judge.
18 I do not suggest that the ruling of the Court impinges in some
19 deeply unacceptable way on the responsibilities of the courts or the
20 rights of defendants. Young is sentenced to 200 months of
21 imprisonment. To require a district court to decide today whether he
22 will require drug or mental health treatment more than 15 years into
23 the future would make little sense. And it is arguably cumbersome
24 (but perhaps not too much so, given the significance of the potential
2 With respect to this condition, too, the written version is entirely consistent
in providing treatment only “[i]f indicated by the evaluation.” Id.
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1 imposition on the defendant) to require the Probation Office to return
2 to the court if it believes, on the basis of mandated drug or mental
3 health testing after his release, to ask the district court to modify the
4 conditions of release to require treatment. So a system that would
5 permit broader delegation to the Probation Office than is permitted by
6 our precedents would certainly be defensible. For good or ill, however,
7 our precedents do not permit such a practice.
8 Because the conditions imposed here can only be read as
9 subjecting the defendant to drug and mental health treatment if the
10 Probation Office (or some other professional) determines that such
11 treatment is necessary, I respectfully dissent.
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