[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16774 MAY 25, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00073-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORRY WESLEY HARMON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 25, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Orry Wesley Harmon is appealing a standard condition of his supervised
release, which the district court imposed as part of his sentence following his plea
of guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g). Harmon argues on appeal that the challenged condition (1) delegates a
judicial function to Harmon’s probation officer, and (2) is unconstitutionally vague
or overbroad. For the reasons set forth more fully below, we affirm.
A federal grand jury returned an indictment, charging Harmon with the
above-referenced firearms offense. In pleading guilty, Harmon agreed that, when a
Santa Rosa County Sheriff’s deputy attempted to initiate a traffic stop on a vehicle
Harmon was driving, and this deputy activated her emergency lights and siren,
Harmon did not immediately stop his vehicle. However, after a second deputy
arrived at the scene, Harmon pulled over and spontaneously stated that everything
illegal in the vehicle belonged to him. In addition to recovering precursors to the
manufacturing of methamphetamine, the deputies recovered from this vehicle a
Smith and Wesson .40 caliber pistol and ammunition for this handgun. Moreover,
Harmon agreed that he previously had been convicted of multiple felonies.
After accepting this plea of guilty, the court sentenced Harmon to 48
months’ imprisonment and 3 years’ supervised release. The court’s written
sentencing findings included that (1) Harmon was arrested after attempting to
2
elude law enforcement officers; and (2) a search of the vehicle he was driving
revealed the pistol, as well as (a) ammunition that he admitted he had removed
from the pistol during the chase, and (b) several items commonly used in the
manufacture of methamphetamine. In explaining why it had found appropriate a
four-level guideline enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5),1 the court
also discussed that, instead of merely possessing a small amount of a controlled
substance for personal use, Harmon was found in possession of List 1 Chemicals
that are commonly used in the manufacture of methamphetamine, he had an
extensive criminal history of prior drug offenses, and he, therefore, likely
possessed the pistol to protect against the theft of the chemicals he intended to use
in manufacturing the methamphetamine.
Furthermore, the court’s written judgment order contained a section
captioned “Standard Conditions of Supervision,” under which the court ordered
Harmon to “comply with the following standard conditions that have been adopted
by this court.” Standard Condition Thirteen specifically ordered as follows:
[A]s directed by the probation officer, the defendant shall notify third
parties of risks that may be occasioned by the defendant’s criminal
1
Section 2K2.1(b)(5) provides for an increase in a defendant’s offense level “[i]f the
defendant used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in connection with another felony offense.” See
U.S.S.G. § 2K2.1(b)(5).
3
record or personal history or characteristics and shall permit the
probation officer to make such notifications and to confirm the
defendant’s compliance with such notification requirement.
Harmon did not object to any conditions of his supervised release.
As discussed above, Harmon is arguing on appeal that the district court
plainly erred when it imposed Standard Condition Thirteen because this condition
of supervised release improperly delegates to Harmon’s probation officer the
judicial function of deciding whether, when, and how Harmon must notify “third
parties” of “risks that may be occasioned by [his] criminal record or personal
history or characteristics.” Harmon also contends that this condition is
unconstitutionally vague and overbroad on its face because it fails to identify
which third parties must be given notice, which of his history or characteristics
give rise to the need for the notice, and what such notice must include to be
sufficient. He asserts, therefore, that Standard Condition Thirteen should not be
enforced absent some finding by the district court that it is reasonably necessary to
meet the goals of sentencing, as well as some specification to its application.2
2
Harmon concedes in his reply brief that, subsequent to his filing his initial brief, we
decided in United States v. Nash, 438 F.3d 1302, 1306-07 (11th Cir. 2006), that Standard
Condition Thirteen neither delegates a judicial function to the defendant’s probation officer, nor
is it unconstitutionally vague or overbroad. Nevertheless, Harmon contends that our decision in
Nash was flawed and in conflict with our prior decision in United States v. Heath, 419 F.3d
1312, 1314-15 (11th Cir. 2005).
4
We normally review the terms of a defendant’s supervised release for abuse
of discretion. Nash, 438 F.3d at 1304. Where the defendant fails to object in the
district court, however, we will reverse only for plain error. Id. Similarly,
although we review constitutional issues de novo, we will reverse only for plain
error where the defendant fails to raise his constitutional objection in the district
court. Id.
Because Harmon did not raise in the district court either of his challenges to
Standard Condition 13, we review them only for plain error. See id. “To find
reversible error under the plain error standard, we must conclude that (1) an error
occurred, (2) the error was plain, and (3) the error affected substantial rights.” Id.
(quoting United States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003)). If these
three criteria are met, we may reverse for plain error if the error “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings.” Nash, 438
F.3d at 1304 (quoting United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct.
1770, 1776, 123 L.Ed.2d 508 (1993)).
In Heath, we examined a district court’s modification of a condition of a
defendant’s supervised release, whereby the court ordered that the defendant “shall
participate if and as directed by the probation office in such mental health
programs as recommended by a psychiatrist or psychologist . . ..” See Heath, 418
5
F.3d at 1314. We determined that this special condition was an improper
delegation of a judicial function, in violation of Article III of the United States
Constitution,3 because, in imposing this condition, “[t]he district court delegated to
the probation officer not only the administrative supervision of [the defendant’s]
participation in the mental health program, but also the authority to make the
ultimate decision of whether [the defendant] had to participate at all.” See id. at
1315. Additionally, we rejected the government’s argument that this error was not
plain because this error affected the defendant’s substantial rights and “[a]
violation of Article III through the improper delegation of a judicial function meets
[the fourth criteria of the plain-error] standard.” See id. at 1316.
On the other hand, in Nash, we recently explained that we “ha[d] upheld
conditions of supervised release that unequivocally impose a requirement on the
defendant, but subject the defendant to the ‘approval’ or ‘direction’ of a probation
officer.” See Nash, 438 F.3d at 1305. We discussed that, because probation
officers “play a vital role in effectuating the sentences imposed by district courts,”
courts may delegate duties to probations officers “to support judicial functions, as
long as a judicial officer retains and exercises ultimate responsibility. See id.
3
Article III specifically provides that “[t]he judicial Power of the United States, shall be
vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.” See U.S. Const., Art. III, § 1.
6
(quotation omitted). We also noted that, “[w]here the court makes the
determination of whether a defendant must abide by a condition . . . it is
permissible to delegate to the probation officer the details of where and when the
condition will be satisfied.” Id. (emphasis in original) (quotation omitted).
Applying these principles, we concluded in Nash that Standard Condition Thirteen,
which directs the probation officer to oversee the enforcement of the defendant’s
supervised release, did not delegate the “ultimate responsibility” of determining his
sentence to the unfettered discretion of the probation officer, and the district court,
therefore, did not plainly err in imposing it. See id. at 1305-06.
In Nash, we also examined the constitutional challenge at issue in the instant
appeal, that is, that this standard condition is unconstitutionally vague and
overbroad because it does not state the risks, third parties, or history and
characteristics that would, otherwise, guide a probation officer in the enforcement
of the condition. See id. at 1306-07. We discussed that “[c]onditions of
supervised release are not vague and overbroad when they are ‘undeniably related’
to the sentencing factors [in 18 U.S.C. § 3553(a)].” See id. at 1307 (quoting
United States v. Taylor, 338 F.3d 1280, 1285 (11th Cir. 2003)). We also explained
that the factors that the district court may consider when imposing a sentence
include “the nature and circumstances of the offense and the history and
7
characteristics of the defendant” and the need “to protect the public from further
crimes of the defendant.” See Nash, 438 F.3d at 1307 (quoting 18 U.S.C.
§ 3553(a)(1); (a)(2)(C)). We concluded in Nash that Standard Condition Thirteen
was “undeniably related” to the defendant’s current conviction, previous
convictions, restitution obligation, along with the need to protect the public from
Nash’s financial fraud.
Standard Condition Thirteen in the instant appeal is indistinguishable from
the condition of release that we upheld in Nash. Thus, we similarly conclude that
this standard condition does not relegate the “ultimate responsibility” of
determining Harmon’s sentence to the unfettered discretion of the probation
officer. See id. at 1306. Furthermore, similar to the facts in Nash, this standard
condition is “undeniably related” to the sentencing factors in § 3553(a) and, thus,
not unconstitutionally vague or overbroad. See id. at 1307. As the district court
either explicitly or implicitly noted in its sentencing findings, Harmon was found
in possession of List 1 Chemicals that are commonly used in the manufacture of
methamphetamine, he had an extensive criminal history of prior drug offenses, and
he posed a threat to the public. See 18 U.S.C. § 3553(a)(1) (“the nature and
circumstances of the offense and the history and characteristics of the defendant”);
8
18 U.S.C. § (a)(2)(C) (“the need for the sentence imposed . . . to protect the public
from further crimes of the defendant”).
Accordingly, we conclude that the district court did not err, plainly or
otherwise, in setting Standard Condition Thirteen in imposing Harmon’s
conditions of supervised release. We, therefore, affirm.
AFFIRMED.
9