Case: 11-41018 Document: 00511879306 Page: 1 Date Filed: 06/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2012
No. 11-41018
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSHUA CALHOUN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:09-CR-1159-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Joshua Calhoun appeals from his resentencing following his guilty plea
conviction of high speed flight from an immigration checkpoint. As a special
condition of supervised release, the district court, in its written judgment,
ordered Calhoun to participate in “anger management counseling as deemed
necessary and approved by the probation officer.” When imposing the sentence
orally, the district court merely stated that Calhoun would be subject to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-41018 Document: 00511879306 Page: 2 Date Filed: 06/07/2012
No. 11-41018
conditions of supervision including “anger management” and said nothing about
the probation officer’s role.
Calhoun argues that the district court impermissibly delegated to the
probation officer its Article III judicial function to determine whether he would
have to participate in anger management counseling; alternatively, he argues
that the sentence must be vacated and remanded because the district court was
unclear whether it intended to delegate to the probation officer the authority to
decide whether Calhoun would have to participate in anger management
counseling or whether the district court merely intended for the probation officer
to implement anger management counseling that it had mandated.
Because the district court did not use the disputed language regarding the
probation officer’s involvement at sentencing, and therefore gave Calhoun no
opportunity to object before the entry of the written judgment, abuse of
discretion review applies. See United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006). Without reaching Calhoun’s constitutional argument, we conclude,
as we have in several similar unpublished cases, that the written judgment
creates an ambiguity regarding whether the district court intended to delegate
authority not only to implement treatment but to decide whether treatment was
needed. See, e.g., United States v. Turpin, 393 F. App’x 172, 174 (5th Cir. 2010);
United States v. Vasquez, 371 F. App’x 541, 542-43 (5th Cir. 2010); United States
v. Lopez-Muxtay, 344 F. App’x 964, 965-66 (5th Cir.2009). Accordingly, we
vacate the judgment and remand the case so that the district court may clarify
the condition of supervised release at issue.
VACATED AND REMANDED.
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