United States v. Ortega

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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   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.”




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   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




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   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.




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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.




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