Case: 09-20172 Document: 00511073735 Page: 1 Date Filed: 04/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 7, 2010
No. 09-20172 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
LISA DENISE BISHOP,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Lisa Denise Bishop appeals the imposition of a special condition on her
supervised release. For the following reasons, we affirm.
I
Bishop pled guilty to aggravated identity theft and fraud in connection
with access devices and was sentenced to serve 48 months in prison and three
years of supervised release. As a special condition of her supervised release,
Bishop was ordered to “participate in a mental health program as deemed
necessary and approved by the probation officer.” Bishop appeals, arguing that
the district court judge unlawfully and unconstitutionally delegated her
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No. 09-20172
statutory and Article III authority to determine sentencing conditions to a non-
judicial officer.
II
Because Bishop did not object at sentencing, this court reviews for plain
error only.1 Under the plain error standard of review, reversal is not required
unless there is (1) an error; (2) that is clear or obvious; and (3) that affects the
defendant’s substantial rights.2 Even then, we retain discretion whether to
correct the error, and will do so only if it “seriously affects the fairness, integrity,
or public reputation of judicial proceedings.”3
III
We determine whether an alleged error is plain by reference to existing
law at the time of appeal.4 An error is not plain “unless the error is clear under
current law.”5 There are no published decisions in this Circuit that address the
statutory and constitutional limits on a district court’s authority to delegate to
a probation officer the determination of whether and to what extent a convicted
defendant on supervised release must participate in counseling. Although other
circuit courts have found improper delegation in analogous circumstances on de
novo review,6 the question remains an open one in the Fifth Circuit, and Bishop
1
United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003).
2
United States v. Rojas-Gutierrez, 510 F.3d 545, 548 (5th Cir. 2007).
3
Id.
4
See Johnson v. United States, 520 U.S. 461, 467 (1997) (“[A] new rule for the conduct
of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct
review . . . with no exception for cases in which the new rule constitutes a ‘clear break’ with
the past.”) (internal quotations and citation omitted).
5
United States v. Olano, 507 U.S. 725, 734 (1993).
6
See, e.g., United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (finding that
delegating to the probation office the authority to decide whether a defendant will participate
in a treatment program is a violation of Article III); see also United States v. Peterson, 248 F.3d
2
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No. 09-20172
has failed to show that the district court’s error, if any, was plain.7 Indeed, in
a series of recent unpublished opinions, this circuit has consistently held that
such judicial delegations of authority regarding counseling do not rise to the
level of plain error.8
Bishop relies primarily upon our decision in United States v. Albro to
support her position that the district court judge plainly erred by delegating her
authority to determine special conditions of release to a probation officer.9 In
that case, the defendant was convicted of bank fraud and ordered to pay
restitution. Although the district judge determined the amount to be paid, he
delegated the “manner of payment” to a probation officer. This court agreed with
the convicted defendant that “‘the amounts to be paid and the manner of
payment should be recited in the [sentencing] order, rather than
79, 85 (2d Cir. 2001) (“If [the defendant] is required to participate in a mental health
intervention only if directed to do so by his probation officer, then this special condition
constitutes an impermissible delegation of judicial authority to the probation officer.”); United
States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005) (expressing agreement with Peterson);
United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002) (same); United States v. Sines, 303
F.3d 793, 799 (7th Cir. 2002) (“[A] district court ... must itself impose the actual condition
requiring participation in a sex offender treatment program.”); United States v. Kent, 209 F.3d
1073, 1079 (8th Cir. 2000) (finding “that the lower court improperly delegated a judicial
function to [the defendant’s] probation officer when it allowed the officer to determine whether
[the defendant] would undergo counseling”).
7
United States v. Castro, 166 F.3d 728, 732 (5th Cir. 1999); see also United States v.
Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (finding any error could not be plain or obvious
when the Fifth Circuit had not previously addressed the issue before the court).
8
See, e.g., United States v. De Los Santos, 332 F. App’x 993 (5th Cir. 2009) (holding that
it was not plain error to delegate whether and to what extent the defendant should participate
in counseling); United States v. Davis, 306 F. App’x 851 (5th Cir. 2009); United States v.
Grubert, 339 F. App’x 406 (5th Cir. 2009); United States v. Mungia, 297 F. App’x 314 (5th Cir.
2008); United States v. Acevedo, 157 F. App’x 713 (5th Cir. 2005).
9
32 F.3d 173 (5th Cir. 1994).
3
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No. 09-20172
delegat[ed] . . . to the probation officer.’” 10 The court found plain error and
reversed.11
Bishop concedes, however, that this court has since distinguished Albro in
cases addressing drug treatment. In United States v. Warden, for example, this
court held that it was not plain error to allow a probation officer to determine a
defendant’s ability to pay for drug treatment.12 This court noted that Albro
concerned “restitution payments,” not the costs of drug treatment.13 Likewise,
in United States v. Vega, we noted that any error by the district court in
delegating authority to a probation officer to determine the length of a
defendant's drug treatment was not plain or obvious because “we have not
previously addressed this issue.”14
Our precedents do not plainly require the result Bishop urges.
* * *
Accordingly, for the reasons discussed above, we AFFIRM the district
court’s judgment.
10
Id. at 174 (quoting United States v. Mancuso, 444 F.2d 691, 695 (5th Cir. 1971)).
11
Id. at 174-75.
12
291 F.3d 363, 366 (5th Cir. 2002).
13
Id. at 365-66.
14
332 F.3d 849, 852 n.3 (5th Cir. 2003).
4