Case: 20-10491 Document: 00516124971 Page: 1 Date Filed: 12/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 10, 2021
No. 20-10491
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Tina Carol Ortega,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-95-2
Before Davis, Higginson, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
This case requires the court to determine whether the district court
plainly erred in imposing a special condition of supervised release on
Defendant-Appellant Tina Ortega. Because the district court committed no
error whatsoever—much less a plain one—we AFFIRM.
I.
Tina Ortega pled guilty to possession of stolen mail in 2016. While on
supervised release in 2019, Ortega admitted to a set of drug violations. The
district court revoked Ortega’s supervised release and sentenced her to an
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No. 20-10491
additional two years in prison and one year of supervised release. At issue
here is a special condition the district court imposed as part of Ortega’s latter
one-year term of supervised release.
The condition in question requires Ortega to “reside in [a] Reentry
Center and successfully participate in [a] Residential Reentry Program for a
period of at least 4 months to be released at the direction of the probation
officer.” It further directs Ortega to “initially participate in [the Reentry
Program’s] community corrections component,” but provides that Ortega
“may become eligible the last one-third of the term of confinement for
placement in [the Program’s] prelease component upon approval of the
program review team and provided that [Ortega] meets all of the center’s
requirements.”
Ortega did not object to the condition at the time of its
pronouncement, but now argues that the anodyne condition “impermissibly
delegated authority to the probation officer by allowing the probation officer
to determine the duration of a residential treatment program.” 1 As explained
below, this contention fails.
II.
Both sides agree that our review is for plain error. See United States v.
Huerta, 994 F.3d 711, 715 (5th Cir. 2021) (“[W]e review forfeited challenges
for plain error. A defendant forfeits a challenge to a condition of supervised
1
We have repeatedly held that “a district court cannot delegate to a probation
officer the ‘core judicial function’ of imposing a sentence, ‘including the terms and
conditions of supervised release.’” United States v. Barber, 865 F.3d 837, 839 (5th Cir.
2017) (per curiam) (quoting United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016)).
Premised on this longstanding rule, Ortega’s argument is straightforward: Because the
decision of “How much longer [Ortega] will be locked up” in a residential reentry facility
“will be entirely up to probation,” the district court violated the foregoing nondelegation
principle by assigning “probation enormous authority to deprive Ms. Ortega’s liberty.”
2
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No. 20-10491
release if the defendant had the opportunity to object in the district court but
did not.” (citation omitted)). To demonstrate plain error, an appellant must
show “(1) an error (2) that is clear or obvious, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 716 (quoting United States v. Huor,
852 F.3d 392, 398 (5th Cir. 2017)). Ortega fails to meet this demanding
standard here. In fact, she fails to surmount prong one.
A.
In United States v. Huerta, we elaborated on “the dividing line
between” permissible delegations of authority to determine the “details” of a
supervised release condition and impermissible delegations of the “core
judicial function” of imposing a sentence. See id. at 715–17. As Huerta
explains, a district court errs when it surrenders “‘the final say’ on whether
to impose a condition” or leaves to probation the details of a condition
involving “a ‘significant deprivation of liberty,’” but does not err when it
assigns a probation officer reasonable authority to supervise the defendant’s
participation in a treatment program, including the program’s “modality,
intensity, and duration.” Id. at 713–14, 716–17 (emphasis added) (first quoting
United States v. Medel-Guadalupe, 987 F.3d 424, 431 (5th Cir. 2021) (per
curiam); then quoting United States v. Martinez, 987 F.3d 432, 434, 436 (5th
Cir. 2021)).
Huerta made sense of a pair of divergent decisions issued by this court
on the same day: Medel-Guadalupe, 987 F.3d at 431 (where we affirmed a
district court’s permissible delegation of probationary authority) and
Martinez, 987 F.3d at 434–35 (where we vacated a district court’s
impermissible delegation of probationary authority). As the Huerta panel
stated,
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Both cases concerned whether a district court may
delegate to a probation officer the decision to require
“inpatient or outpatient” treatment. See Martinez, 987 F.3d at
434; Medel-Guadalupe, 987 F.3d at 430. Citing each other,
Martinez concluded that the delegation was impermissible
following a relatively short 10-month sentence and Medel-
Guadalupe concluded that the delegation was permissible
following a relatively long 10-year sentence where it was clear
that the district court continued to maintain a final say over the
decision. Martinez, 987 F.3d at 436 (citing Medel-Guadalupe,
987 F.3d at 431); Medel-Guadalupe, 987 F.3d at 431 (citing
Martinez, 987 F.3d at 436). Martinez emphasized the
significant liberty interests at stake during confinement for
inpatient treatment. 987 F.3d at 436. Medel-Guadalupe
emphasized the long term of imprisonment and the district
court’s “final say over the decision” upon release “nearly a
decade from now.” 987 F.3d at 431.
Huerta, 994 F.3d at 716.
B.
Taken together, this trilogy of cases leaves no doubt that the district
court’s modest delegation of supervisory authority in this case was proper.
For starters, the special condition here is considerably more specific and
restrictive than the special conditions we considered in Huerta, Martinez, and
Medel-Guadalupe. Indeed, the district judge here specified that Ortega
“reside” in an inpatient “Reentry Center” for at least four months2 and
directed several key aspects of Ortega’s activities in the Center.3 He also
2
Compare this with Martinez, where we vacated the special condition at issue due
to its lack of clarity on this point. See 987 F.3d at 436.
3
Compare this with Huerta, where we affirmed a looser special condition that
merely specified that the defendant “participate in a substance abuse treatment program”
and gave the probation officer carte blanche to “supervise the participation in the program
4
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No. 20-10491
maintained a significant (if not decisive) role in setting the duration of
Ortega’s participation in the program—at least four months, but no more
than twelve months.4 As a result, while not all delegations of authority to set
a supervised release program’s duration are created equal, this one is no
broader than other “duration delegations” we’ve sustained in the past.
Ortega’s counterarguments—namely, (1) that the district court’s
delegation violates Martinez and Huerta by leaving the ultimate decision of
how long Ortega will be “locked up” in a residential program “entirely . . . to
probation,” and (2) that this case is distinguishable from Medel-Guadalupe
“because that case depended so heavily on the long term of imprisonment,
ten years, which is absent here”—are unavailing. For one, the district court
did not leave the length of Ortega’s stay in the specified inpatient Reentry
Center “entirely up to probation” at all, but instead directed probation to
release Ortega within a particularized eight-month window, subject to its
superior knowledge of Ortega’s situation and performance in the program.
Moreover, the fact that Ortega’s two-year prison sentence is closer in length
to Martinez’s ten-month sentence than to Medel-Guadalupe’s ten-year
sentence is of little consequence as an error is only “clear or obvious if it is
not subject to reasonable debate.” United States v. Davis, 967 F.3d 441, 442
(5th Cir. 2020) (per curiam). Because we have never passed5 on the
significance (if any) of the length of a sentence falling between those in
(provider, location, modality, duration, intensity, etc.).” See 994 F.3d at 713–14 (emphasis
added).
4
The district court also retains discretion to modify Ortega’s term of supervised
release under Federal Rule of Criminal Procedure 32.1.
5
We have no need to do so today because the district court’s delegation here is a
relative model of precision and because Ortega cannot establish plain error in any event.
5
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Martinez and Medel-Guadalupe, this matter remains subject to “reasonable
debate” and a lack of “clear or obvious” error is a given. Id.
* * *
“Delegations to probation officers should not be made lightly,”
Huerta, 994 F.3d at 716, but a district court is free to grant probation officers
reasonable leeway in arranging the details of a defendant’s participation in a
supervised release program. In failing to pinpoint the precise date of the
defendant’s discharge from a relatively specific special condition of
supervised release here, the district court did not plainly err.
Accordingly, the judgment of the district court is AFFIRMED.
6