Case: 20-10866 Document: 00516233510 Page: 1 Date Filed: 03/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 10, 2022
No. 20-10866 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Andres Aguilar-Cerda,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-289-S-1
Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit
Judges.
Patrick E. Higginbotham, Circuit Judge:
Aguilar-Cerda’s counsel submitted a merits brief after this Court
previously concluded that counsel did not address a nonfrivolous issue
related to a condition of supervised release in counsel’s Anders brief. Because
we now conclude there is no nonfrivolous issue for appeal, we affirm the
district court’s judgment and grant counsel’s motion to withdraw which was
carried with the case.
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No. 20-10866
I.
Andres Aguilar-Cerda pleaded guilty to possession with intent to
distribute a mixture or substance containing a detectable amount of
methamphetamine.1 He was sentenced within the advisory guidelines range
to 45 months’ imprisonment and three years of supervised release. During
the sentencing hearing, the district court stated that “the Defendant shall
participate in a program, in or outpatient, approved by the U.S. Probation
Office for treatment of narcotic, drug, or alcohol dependency, which will
include testing for the detection of substance use or abuse.” Aguilar-Cerda
did not object to this condition.
This special condition of supervised release is the subject of this
appeal. The Federal Public Defender appointed to represent Aguilar-Cerda
moved to withdraw pursuant to Anders v. California2 and United States v.
Flores.3 This Court carried counsel’s motion to withdraw with the case and
ordered counsel to file either a supplemental Anders brief or a brief on the
merits addressing (1) whether the district court erred by delegating the
authority to require in-patient drug treatment as a condition of supervised
release to the probation officer and (2) whether the district court erred by
failing to specify the standard and mandatory conditions of supervised release
during the sentencing hearing. As to the second issue, both parties agree that
the district court did not plainly err when it referred to its previous written
standing order and ordered that “Defendant shall comply with the standard
conditions contained in this judgment” without reciting those conditions
during the sentencing hearing. We agree and need not address the issue
1
See 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
2
386 U.S. 738 (1967).
3
632 F.3d 229 (5th Cir. 2011).
2
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further.4 Accordingly, this appeal will focus on the former issue of delegating
the inpatient or outpatient substance abuse treatment determination to a
probation officer.
II.
Because Aguilar-Cerda failed to object to the condition of supervised
release, this Court reviews Aguilar-Cerda’s challenge of this condition for
plain error.5 Under this standard, Aguilar-Cerda 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.”6
III.
Aguilar-Cerda argues that the district court plainly erred when it
delegated to a probation officer the determination of whether he must
participate in an in-patient or outpatient substance abuse treatment program.
We disagree.
Two cases related to this issue, which were decided the same day,
seem to conflict at first glance. In Martinez, we vacated the district court’s
condition of supervised release requiring Martinez to “participate in an
inpatient or outpatient substance-abuse treatment program” because it
4
See United States v. Diggles, 957 F.3d 551, 561 (5th Cir. 2020) (“A standing order
provides advance notice of possible conditions just as a PSR recommendation does. And
the in-court adoption of those conditions is when the defendant can object.”).
5
United States v. Huerta, 994 F.3d 711, 716 (5th Cir. 2021) (hereinafter Yurika
Huerta); see also United States v. Huerta, No. 19-41018, 2022 U.S. App. LEXIS 392, at *2
(5th Cir. Jan. 6, 2022) (unpublished).
6
Yurika Huerta, 994 F.3d at 716 (internal citations and quotations removed).
3
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improperly delegated “the judicial decision to significantly restrict
Martinez’s liberty during treatment” to a probation officer.7
In Medel-Guadalupe, however, we held that the district court did not
err when it delegated the decision of whether a substance abuse treatment
program would be inpatient or outpatient to a probation officer. 8 We
explained that “the key inquiry is whether the condition is mandatory or left
to the discretion of the probation officer.”9 We determined that the district
court expressly required Medel-Guadalupe to participate in a treatment
program, and the inpatient versus outpatient distinction as well as the
“modality, intensity, duration” of the treatment were “details of the
conditions” which could be delegated to a probation officer.10
We then clarified these two decisions in Yurika Huerta:
Read together, Martinez and Medel-Guadalupe establish two
principles regarding delegation to probation officers. First,
the district court will have the final say on whether to impose
a condition . . . . Second, although a probation officer’s
authority extends to the modality, intensity, and duration of
a treatment condition, it ends when the condition involves a
significant deprivation of liberty.11
Importantly, we are reviewing Aguilar-Cerda’s challenge under plain error.
This distinguishes this case from Martinez, in which we reviewed the
challenge under the more generous abuse of discretion standard, because,
7
United States v. Martinez, 987 F.3d 432, 433 (5th Cir. 2021).
8
United States v. Medel-Guadalupe, 987 F.3d 424, 430–31 (5th Cir. 2021) (published
per curiam).
9
Id. at 430.
10
Id.
11
Yurika Huerta, 994 F.3d at 716–17 (internal citations and quotations removed).
4
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unlike Aguilar-Cerda, Martinez did not have an opportunity to object to the
district court’s delegation of the inpatient or outpatient decision to a
probation officer at his hearing.12 Here, Aguilar-Cerda cannot carry his
burden to show that the district court’s error is clear or obvious and seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
First, Aguilar-Cerda cannot show a clear or obvious error. Here, as in
Medel-Guadalupe, the district court clearly required that Aguilar-Cerda
“shall participate in a [drug treatment] program.” In other words, the
probation officer did not have the authority to impose a mandatory condition
of supervised release; the district court merely delegated the “details of the
conditions” to the probation officer.13
Additionally, Aguilar-Cerda’s 45-month sentence falls in between the
10 months sentence in Martinez and the 120-month sentence in Medel-
Guadalupe.14 In Medel-Guadalupe, we reasoned that the district court’s
delegation of the inpatient or outpatient designation to the probation officer
made practical sense; because of the long sentence imposed, the district court
was not in a position to “predict what the need for substance abuse treatment
during supervised release will be.”15 On the other hand, in Martinez the
district court was in a better position to determine whether inpatient or
outpatient treatment was required only 10 months later. And, because of the
already short sentence, allowing a probation officer to further hold the
12
Martinez, 987 F.3d at 434–35.
13
Medel-Guadalupe, 987 F.3d at 430.
14
Id. at 427; Martinez, 987 F.3d at 434.
15
Medel-Guadalupe, 987 F.3d at 431.
5
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defendant in inpatient treatment amounted to a restriction of Martinez’s
liberty.16
Here, “[b]ecause we have never passed on the significance (if any) of
the length of a sentence falling between those in Martinez and Medel-
Guadalupe, this matter remains subject to ‘reasonable debate’ and a lack of
‘clear or obvious’ error is a given.”17 Aguilar-Cerda argues that this Court
implied in Yurika Huerta that allowing a probation officer to “lock [ ] up” a
defendant for inpatient treatment following a 52 months sentence would be
an improper delegation of authority to a probation officer. 18 However, Yurika
Huerta did not involve a challenge to whether a district court may delegate
the inpatient or outpatient treatment designation to a probation officer. 19
And, unlike the hypothetical situation presented in Yurika Huerta, the
district court has required substance abuse treatment here; the probation
officer may not unilaterally require a treatment program as a condition of
supervised release. Because it is not clear or obvious that a 45-month
sentence is short enough such that the delegation of the inpatient or
outpatient designation to a probation officer amounts to a restriction of
Aguilar-Cerda’s liberty, Aguilar-Cerda cannot show plain error.
16
Martinez, 987 F.3d at 435.
17
United States v. Ortega, No. 20-10491, 2021 U.S. App. LEXIS 36566, at *6 (5th
Cir. Dec. 10, 2021) (internal citations removed). See also United States v. Huerta, No. 19-
41018, 2022 U.S. App. LEXIS 392, at *5–*6 (5th Cir. Jan. 6, 2022) (unpublished) (finding
that our precedent does not clearly resolve the question of whether the delegation of the
inpatient or outpatient designation to a probation officer is an improper delegation and the
defendant therefore cannot show plain error).
18
See Yurika Huerta, 994 F.3d at 717.
19
Id. at 714.
6
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****
Accordingly, we AFFIRM the district court’s judgment and GRANT
counsel’s motion to withdraw as there is no nonfrivolous issue for appeal.
7
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No. 20-10866
Patrick E. Higginbotham, Circuit Judge, joined by Priscilla R.
Owen, Chief Judge, concurring:
I write separately to highlight the fact that, even if our review were not
under plain error, I would not find an improper delegation. As in Medel-
Guadalupe, “[i]f, upon his release [Defendant] disagrees with the
inpatient/outpatient determination, the district court will have the final say
over the decision.”20 Because Aguilar-Cerda can challenge the probation
officer’s determination, the district court will be the ultimate decisionmaker.
No one maintains that the district court judge can delegate to the
probation officer the authority to revoke supervised release or to impose a
specific condition of supervised release.21 But here, even though the
probation officer may make the initial determination of whether judicially
ordered treatment will occur in an inpatient or outpatient setting, the
practical reality is that the district court maintains the ultimate authority over
Aguilar-Cerda’s conditions of supervised release. The district court judge
legally restricted Aguilar-Cerda’s liberty interests in a sentence spanning
over six years—45 months by incarceration and the remainder by supervised
release. The district court judge ordered that one of the conditions for
supervised release is that Aguilar-Cerda participate in a substance abuse
treatment program. Should Aguilar-Cerda breach a condition of supervised
release, only the district court has the authority to revoke supervised
release.22 Thus, there is no improper delegation.
20
Medel-Guadalupe, 987 F.3d at 431.
21
Sealed Appellant v. Sealed Appellee, 937 F.3d 392, 400 (5th Cir. 2019) (“The
imposition of a sentence, including the terms and conditions of supervised release, is a core
judicial function that cannot be delegated.”) (internal quotations and citations removed).
22
See 18 U.S.C. § 3583(e)(3).
8