USCA11 Case: 20-10811 Date Filed: 04/02/2021 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10811
Non-Argument Calendar
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D.C. Docket No. 4:19-cr-00007-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS JOELL PORTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(April 2, 2021)
Before JILL PRYOR, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Douglas Porter pleaded guilty to one count of knowingly possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district
court sentenced him to 151-months’ imprisonment followed by 10 years of
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supervised release. The court imposed various standard conditions on the
supervised release. One of these—the risk condition—is relevant here:
If the probation officer determines that you pose a risk to another person
(including an organization), the probation officer may require you to
notify the person about the risk and you must comply with that
instruction. The probation officer may contact the person and confirm
that you have notified the person about the risk.
On appeal, Porter contends that the district court unconstitutionally delegated the
judicial authority of sentencing to a probation officer in violation of Article III of
the U.S. Constitution when it imposed this risk condition.
Porter did not raise this challenge in the district court, so we review only for
plain error. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). Plain
error requires: 1) an error, 2) that was plain, and 3) that affected the defendant’s
substantial rights. Id. Where those preconditions are met, this Court may reverse
if the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. If neither the Supreme Court nor this Circuit has directly
resolved an issue, then there can be no plain error. United States v. Lange, 862
F.3d 1290, 1296 (11th Cir. 2017).
The right to impose a punishment provided by law is judicial. Nash, 438
F.3d at 1305. But because probation officers play a vital role in effectuating
sentences, “courts may delegate duties to probation officers ‘to support judicial
functions, as long as a judicial officer retains and exercises ultimate
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responsibility.’” Id. (quotation omitted). This means that although a court must
make the ultimate determination of whether a defendant must abide by a condition,
it can delegate to a probation officer the details of where and when that condition
will be satisfied. Id.
We already held that an earlier version of the standard risk condition did not
improperly delegate judicial authority. In United States v. Nash, we noted that the
language of the condition did not permit the probation officer to unilaterally decide
whether Nash “shall” do something. Id. at 1306. Instead, the condition only
allowed the officer to direct when, where, and to whom notice must be given. Id.
For that reason, the risk condition did not impermissibly delegate the ultimate
responsibility of determining Nash’s sentence to the discretion of the probation
officer. Id.
After we decided Nash, the Sentencing Commission revised the risk
condition to clear up “potential ambiguity in how the condition [was] phrased.”
U.S. Sentencing Guidelines App. C, Amend. 803 (2016). Specifically, it rephrased
the condition to make it “easier for defendants to understand and probation officers
to enforce.” Id. But although the phrasing of the condition changed, its substance
remained the same. A probation officer still cannot “unilaterally decide” whether
the defendant is subject to the condition. Nash, 438 F.3d at 1306. Instead, the
condition simply gives the officer control over the details of to whom notice must
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be given. See id. So because the substance of the risk condition has not changed,
Nash’s holding applies to the revised version too. And that means that the district
court did not improperly delegate judicial authority when imposing the condition.
Porter pushes back on applying Nash’s holding to the revised version of the
risk condition. But even if we were to agree that imposing the revised risk
condition was error, Porter failed to show that any error was plain. No case from
this Circuit or the Supreme Court demonstrates that the risk condition improperly
delegates judicial authority. See Lange, 862 F.3d at 1296. So given the holding of
Nash, and the lack of any controlling authority to the contrary, we find that the
district court did not commit plain error in imposing the risk condition.
AFFIRMED.
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