FILED
United States Court of Appeals
Tenth Circuit
January 14, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-1015
JACQUELINE CHRISTINE WAYNE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 08-CR-00385-MSK-1)
Lee Thomas Judd, Littleton, Colorado, for Defendant-Appellant.
Martha A. Paluch, Assistant United States Attorney (David M. Gaouette, Acting
United States Attorney, with her on the briefs), Denver, Colorado, for Plaintiff-
Appellee.
__________________________________
Before HENRY, Chief Judge, SEYMOUR, and HOLMES, Circuit Judges.
__________________________________
HOLMES, Circuit Judge.
__________________________________
Defendant-Appellant Jacqueline C. Wayne pleaded guilty to one count of
wire fraud, in violation of 18 U.S.C. § 1343, and received a sentence of thirty-
seven months in prison followed by three years of supervised release. After
serving the custodial sentence, Ms. Wayne was alleged to have violated a special
condition of her supervised release by failing to participate in a mental health
evaluation as directed by her probation officer. The district court held a hearing
during which it interpreted the meaning of that special condition and ordered Ms.
Wayne to comply. Ms. Wayne now appeals the district court’s order. We
exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 1 and affirm the
1
This action raises a threshold question of ripeness because the
district court has not found that Ms. Wayne violated the special conditions and
has not revoked her supervised release. “[F]or a claim to be justiciable under
Article III, it must present a live controversy, ripe for determination, advanced in
a clean-cut and concrete form.” Kan. Judicial Review v. Stout, 519 F.3d 1107,
1116 (10th Cir. 2008) (internal quotation marks omitted). Although neither party
claims that the absence of ripeness deprives this court of jurisdiction to resolve
this action, “[e]very federal appellate court has a special obligation to satisfy
itself . . . of its own jurisdiction . . ., even though the parties are prepared to
concede it.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)
(internal quotation marks omitted).
In United States v. White, this court analyzed the ripeness of a defendant’s
challenge to three conditions of supervised release. 244 F.3d 1199, 1202–04
(10th Cir. 2001). The district court had “sentenced [the defendant] to six months
in custody followed by two years of supervised release with five special
conditions.” Id. at 1201. After serving the custodial sentence, the defendant
challenged three conditions on appeal. Id. at 1201–02. This court found that the
defendant’s claims were ripe for review, even though the government had not
attempted to enforce the conditions and the defendant had not violated them. Id.
at 1202–04. This court noted that “because the statute, 18 U.S.C. § 3583, makes
supervised release a discretionary component of a final sentence, and it is
punishment, appellate courts have jurisdiction to consider the legality of its
terms.” Id. at 1203 (citation and internal quotation marks omitted). Furthermore,
this court noted the presence of the following five factors:
(1) we have “case or controversy” jurisdiction; (2) the issues
are legal ones that we can easily resolve without reference to
(continued...)
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district court’s order.
I. BACKGROUND
In February 2004, Ms. Wayne was indicted in the U.S. District Court for
the Western District of Missouri (the “sentencing court”) on five counts of wire
fraud, in violation of 18 U.S.C. § 1343. She pleaded guilty to Count 1 of the
1
(...continued)
concrete facts; (3) defendant will experience a hardship if we
do not resolve the issues; (4) the traditional canons that
counsel against hearing these sorts of challenges are
inapplicable in the context of supervised release conditions;
and (5) the judicial system has an interest in dealing with this
case as expeditiously as possible, instead of waiting for a
distinct appeal of a conviction for a violation of the conditions
of release.
Id. (quoting United States v. Loy, 237 F.3d 251, 261 (3d Cir. 2001)). This court
concluded that the defendant had established hardship because any violation of
the special conditions would likely lead to his incarceration. Id. at 1203-04.
Thus, this court found the defendant’s claims were ripe for review.
Ms. Wayne’s appeal is likewise ripe for review. Ms. Wayne has completed
her term of imprisonment and is currently on supervised release. Unlike White,
this action arises from the government’s attempt to enforce the supervised release
condition by asking the district court to order Ms. Wayne to release her mental
health evaluation to the probation office. At the hearing, the district court warned
Ms. Wayne that if she does not comply with the orders of the court, she might
face revocation of her supervised release. Based on this meaningful possibility of
re-incarceration, Ms. Wayne will face hardship if this court does not resolve the
issue. This court also may easily dispose of this action on the merits, without the
need for more concrete facts. Furthermore, a finding of ripeness promotes
judicial efficiency because Ms. Wayne is pursuing her “appellate right to
challenge a final order of the District Court”—the kind of order that this court
reviews all of the time. Loy, 237 F.3d at 261. Finally, this court has an interest
in expeditiously resolving this action, rather than remanding it for a distinct
appeal of a conviction for violating the supervised release conditions.
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indictment. Ms. Wayne received a sentence of thirty-seven months’
imprisonment, followed by three years’ supervised release. As a special condition
of supervised release, the sentencing court ordered Ms. Wayne to “participate in a
mental health evaluation as directed by the Probation Office for the purpose of
determining if mental health counseling is needed while under supervision” (the
“initial supervised release condition”). Aplt. Am. App. at 21. Ms. Wayne raised
no objections to the initial supervised release condition at the sentencing hearing.
She also failed to file a direct appeal challenging her sentence or her initial
supervised release condition.
In April 2008, after serving her term of imprisonment, Ms. Wayne began
her term of supervised release. She was instructed by her probation officer to
attend a mental health evaluation at Correctional Psychology Associates (“CPA”)
in Denver, Colorado. Although Ms. Wayne reported to the scheduled evaluation,
she refused to sign a release authorizing the probation office to receive the
evaluation results. Without this release, CPA declined to perform an evaluation.
In September 2008, the sentencing court transferred jurisdiction over Ms.
Wayne’s supervision to the U.S. District Court for the District of Colorado (the
“district court”), pursuant to 18 U.S.C. § 3605. The probation office subsequently
sent a memorandum to the district court recommending that it conduct a
compliance review hearing because of Ms. Wayne’s refusal to participate in the
mental health assessment.
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In December 2008, the district court held a hearing regarding Ms. Wayne’s
alleged failure to comply with the initial supervised release condition. At the
hearing, the district court ordered Ms. Wayne to “engage in the [mental health]
evaluation and . . . [to] sign a release that authorizes that evaluation to be
submitted to the probation office.” Aplt. Am. App. at 47. The district court also
“modifie[d] the conditions of supervised release to authorize the probation office
to give . . . a copy of the Presentence Report” to the mental health evaluator. Id.
at 47–48. Furthermore, over the objection of Ms. Wayne, the district court
ordered her to cooperate with the mental health evaluator and to sign a release
authorizing the evaluator to have access to her prior medical records, if they were
necessary to complete the evaluation. The district court assured Ms. Wayne that
the probation office would not have access to any medical records that preceded
the mental health evaluation. The district court ultimately stated that, “[i]f the
evaluation shows that Ms. Wayne needs treatment, then the probation office can
request a modification of this supervised release condition and I will make a
determination as to whether treatment will be required or not.” Id. at 47. Ms.
Wayne now appeals the district court’s order.
II. DISCUSSION
Ms. Wayne argues that the district court abused its discretion to impose
supervised release conditions when it: (1) ordered the release of her mental
health evaluation to the probation office; and (2) ordered the release of her prior
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medical records to the mental health evaluator. She also claims that the district
court erred in delegating a judicial function to the probation office.
A. Special Conditions of Supervised Release
“We review the district court’s decision to impose special conditions of
supervised release for abuse of discretion.” United States v. Hahn, 551 F.3d 977,
982 (10th Cir. 2008), cert. denied, 129 S. Ct. 1687 (2009). District courts have
broad discretion to prescribe conditions on supervised release, pursuant to 18
U.S.C. § 3583(d) and other applicable laws. United States v. Hanrahan, 508 F.3d
962, 970 (10th Cir. 2007). Section 3583(d) provides, in pertinent part, as follows:
The court may order, as a further condition of supervised
release, to the extent that such condition–
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a);
any condition set forth as a discretionary condition of
probation in section 3563(b) and any other condition it
considers to be appropriate . . . . 2
18 U.S.C. § 3583(d).
2
The U.S. Sentencing Guidelines include identical requirements for
the imposition of special conditions. U.S.S.G. § 5D1.3(b).
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When read in conjunction with 18 U.S.C. § 3553(a), a special condition
must be reasonably related to either “the nature and circumstances of the offense
and the history and characteristics of the defendant,” or one of the three
underlying purposes of a sentence: “to afford adequate deterrence to criminal
conduct,” “to protect the public from further crimes of the defendant,” and “to
provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.” Id. §§
3553(a)(1), (a)(2)(B)-(D), 3583(d)(1); see Hahn, 551 F.3d at 983–84 (“While the
condition must satisfy both § 3583(d)(1) (requiring reasonable relationship to the
§ 3553 factors) and § 3583(d)(2) (involv[ing] no greater deprivation of liberty
than necessary), it does not need to be reasonably related to all of the factors in §
3553.” (citation omitted)). A special condition also must “involve[] no greater
deprivation of liberty than is reasonably necessary” to implement at least one of
the three statutory purposes of sentencing. 18 U.S.C. §§ 3583(d)(2) (citing 18
U.S.C. § 3553(a)(2)(B)-(D)); see United States v. Edgin, 92 F.3d 1044, 1049 n.5
(10th Cir. 1996). Finally, a special condition must be consistent with the
pertinent policy statements in the U.S. Sentencing Guidelines. 18 U.S.C. §
3583(d)(3).
1. Release of Mental Health Evaluation to Probation Office
Ms. Wayne argues that the district court abused its discretion when it
ordered her to sign a release authorizing the submission of her mental health
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evaluation to the probation office. She claims that: (1) the district court’s order
unreasonably deprived her of liberty; 3 (2) the initial supervised release condition
required only a mental health evaluation and not mental health counseling; and
(3) the sentencing court lacked a factual and legal basis to require mental health
counseling as a special condition. 4 These claims lack merit.
a. Unreasonable Deprivation of Liberty
Ms. Wayne first argues that the district court’s order unreasonably deprived
her of liberty. Under 18 U.S.C. § 3583(d), a district court may impose “any
condition set forth as a discretionary condition of probation in [18 U.S.C. §]
3563(b).” Section 3563(b)(9), in turn, authorizes a district court to require a
defendant to “undergo available medical, psychiatric, or psychological treatment”
3
Ms. Wayne limits the scope of her statutory claims under 18 U.S.C. §
3583(d). Although she claims a “deprivation of liberty” under 18 U.S.C. §
3583(d)(2), she never argues that the mental health evaluation is not reasonably
related to the § 3553 factors referenced in 18 U.S.C. § 3583(d)(1), or is
inconsistent with the pertinent policy statements in the Sentencing Guidelines
referenced in 18 U.S.C. § 3583(d)(3).
4
Ms. Wayne also argues in her reply brief that the mental health
evaluator has a potential conflict of interest and an appearance of impropriety. In
particular, Ms. Wayne asserts that the federally contracted provider performing
the mental health evaluation would have a pecuniary interest in recommending
treatment because it ultimately would provide such treatment. Because Ms.
Wayne raised this argument for the first time in her reply brief, she has waived it
on appeal. Fed. R. App. P. 28(a)(9)(A) (requiring an appellant’s opening brief to
identify “appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies”); Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”).
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as a special condition on supervised release to the extent this condition
“involve[s] only such deprivations of liberty or property as are reasonably
necessary for the purposes indicated in section 3553(a)(2),” 18 U.S.C. §
3563(b)(9), which include “provid[ing] the defendant with needed . . . medical
care[] or other correctional treatment in the most effective manner.” id. §
3553(a)(2)(D); see United States v. Barajas, 331 F.3d 1141, 1144–45 (10th Cir.
2003).
The district court did not deprive Ms. Wayne of liberty more than was
reasonably necessary to provide her with needed medical care or other
correctional treatment. The district court did not abuse its discretion in
concluding that the probation office needs the mental health evaluation to
determine whether to recommend that she receive mental health counseling during
her supervised release term. 5 Without the evaluation, the probation office would
5
Individuals on supervised release already have somewhat constrained
rights. In particular, these individuals
are not entitled to the full panoply of rights and protections
possessed by the general public. Indeed, the Supreme Court
has noted that [a] broad range of choices that might infringe
constitutional rights in a free society fall within the expected
conditions . . . of those who have suffered a lawful conviction,
and that conditional releases may claim only . . . conditional
liberty properly dependent on observance of special parole
restrictions that extend substantially beyond the ordinary
restrictions imposed by law on an individual citizen.
Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) (alteration in
(continued...)
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have no basis on which to make that determination. The district court also
limited its order to the release of the evaluation and did not order the release of
her preceding medical records to the probation office. Other courts have
routinely upheld the release of a supervisee’s mental health records to enable a
probation officer to ensure compliance with supervised release conditions. United
States v. Dupes, 513 F.3d 338, 344–45 (2d Cir.), cert. denied, 128 S. Ct. 1686
(2008); United States v. Lopez, 258 F.3d 1053, 1055–57 (9th Cir. 2001); United
States v. Cooper, 171 F.3d 582, 587 (8th Cir. 1999).
Finally, Ms. Wayne cannot claim that the district court had no basis for its
order merely because four years have elapsed since her sentencing. “Because
conditions of supervised release always follow an individual’s release from
prison, those who serve lengthy terms of incarceration are necessarily subject to
conditions of release that were first imposed many years before.” Hahn, 551 F.3d
at 984.
b. Mental Health Counseling
Ms. Wayne contends that the initial supervised release condition required
only a mental health evaluation and not mental health counseling. In the initial
supervised release condition, the sentencing court required Ms. Wayne to
5
(...continued)
original) (citations and internal quotation marks omitted); accord United States v.
Knights, 534 U.S. 112, 119 (2001) (“[P]robationers do not enjoy the absolute
liberty to which every citizen is entitled.” (internal quotation marks omitted)).
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“participate in a mental health evaluation as directed by the Probation Office for
the purpose of determining if mental health counseling is needed while under
supervision.” Aplt. Am. App. at 21 (emphasis added). Although the sentencing
court unambiguously required Ms. Wayne to have a mental health evaluation, it
did so only for the purpose of determining whether to mandate future mental
health counseling. As stated supra, without the mental health evaluation, the
probation office would have no basis on which to determine whether to
recommend mental health counseling. Furthermore, the district court suggested
that it would have to modify the initial supervised release condition to require
Ms. Wayne to undergo mental health counseling.
c. Factual and Legal Basis
Finally, Ms. Wayne claims that the sentencing court lacked any factual and
legal basis to require mental health counseling as a special condition. She claims
that mental health counseling was not related to the charges against her, her prior
mental health history was too remote in time to be related to the initial supervised
release condition, and the sentencing court’s judgment imposing this condition
violated United States v. Kent, 209 F.3d 1073 (8th Cir. 2000), and United States
v. Hopson, 203 F. App’x 230 (10th Cir. 2006). 6
6
Ms. Wayne also argues that the sentencing court failed to provide
any basis for requiring a mental health evaluation as a special condition. While
“the [sentencing] court is required to give reasons on the record for the imposition
of special conditions for supervised release,” Hahn, 551 F.3d at 982, the
(continued...)
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This argument challenges the initial supervised release condition imposed
by the sentencing court. Federal Rule of Appellate Procedure 4(b)(1)(A) provides
that, “[i]n a criminal case, a defendant’s notice of appeal must be filed in the
district court within 14 days after the later of: (i) the entry of either the judgment
or the order being appealed; or (ii) the filing of the government’s notice of
appeal.” As the government argued, Ms. Wayne should have challenged the legal
and factual basis of the initial supervised release condition on direct appeal from
the sentencing court’s judgment. Because Ms. Wayne neglected to raise this
claim at that time, she is time-barred from doing so now. See Mitchell, 518 F.3d
at 744 (“[T]he time bar in Rule 4(b) must be enforced by this court when properly
invoked by the government.”).
2. Release of Prior Medical Records to Mental Health Evaluator
Ms. Wayne argues that the district court abused its discretion when it
ordered her to release her prior medical records to the mental health evaluator. 7
6
(...continued)
sentencing court neglected to do so in this action. Nevertheless, this procedural
challenge is time-barred because Ms. Wayne failed to appeal the sentencing
court’s judgment. Fed. R. App. P. 4(b)(1)(A); see United States v. Mitchell, 518
F.3d 740, 744 (10th Cir. 2008). Ms. Wayne also has waived this argument on
appeal because she failed to raise it in her opening brief. Fed. R. App. P.
28(a)(9)(A); Bronson, 500 F.3d at 1104.
7
Ms. Wayne initially argued that the district court had abused its
discretion in ordering the release of her presentence report (“PSR”) to the mental
health evaluator. In general, PSRs are not public records and may not be released
to third parties. Fed. R. Crim. P. 32(c)(1)(A), (e)(2) (authorizing the release of a
(continued...)
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She claims that the district court: (1) modified the terms of her supervised
release; and (2) unreasonably deprived her of liberty.
a. Modified Terms
Ms. Wayne contends that the district court modified the terms of her
supervised release by “expanding an already improper order to provide a mental
health evaluation.” 8 Aplt. Am. Opening Br. at 17. Under the initial supervised
7
(...continued)
PSR to the court, the defendant, the defendant’s attorney, and the government’s
attorney); United States v. Green (In re Siler), 571 F.3d 604, 610 (6th Cir. 2009);
see U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 12 (1988) (collecting cases); see
also United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir. 1976) (“The
presentence report is not a public record . . . .” (internal quotation marks
omitted)). Nevertheless, PSRs may be released “to the extent that [the PSRs] or
portions of them are placed on the court record or authorized for disclosure to
serve the interests of justice.” United States v. McKnight, 771 F.2d 388, 391 (8th
Cir. 1985) (emphasis added); accord United States v. Alexander, 860 F.2d 508,
514 (2d Cir. 1988) (requiring “a showing of compelling need”); United States v.
Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988) (requiring a showing that the
disclosure of the PSR “is necessary to serve the ends of justice” (internal
quotation marks omitted)).
In this action, Ms. Wayne submitted a full copy of her PSR in the Amended
Appendix, without filing the PSR under seal. Cf. United States v. Kahn, 175 F.3d
518, 523 (7th Cir. 1999) (“[W]here materials are submitted under seal, the party
seeking disclosure must make a specific showing of need to be allowed access to
a document.” (internal quotation marks omitted)). Because the PSR now appears
on the public record, Ms. Wayne has waived any liberty, property, or privacy
interest in it. Furthermore, at oral argument, Ms. Wayne’s counsel conceded that
she had waived this argument.
8
Ms. Wayne may not argue that the sentencing court abused its
discretion in imposing the initial supervised release condition. As discussed
supra, Ms. Wayne is time-barred from raising this issue because she failed to
challenge the sentencing court’s judgment on direct appeal. Fed. R. App. P.
(continued...)
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release condition, however, the sentencing court ordered Ms. Wayne to
“participate in a mental health evaluation as directed by the Probation Office for
the purpose of determining if mental health counseling is needed while under
supervision.” Aplt. Am. App. at 21. The district court explained that this
condition requires Ms. Wayne to “cooperate with the doctor who is going to
perform this evaluation because the evaluation is meaningless if the doctor
doesn’t have adequate information.” Id. at 49. The district court further noted
that “it’s not [Ms. Wayne’s] call as to what information that doctor needs in order
to make the evaluation.” Id. Although Ms. Wayne claims that her prior
diagnoses of depression are too remote to support the district court’s expansion of
the special conditions, the district court merely sought to compel her compliance
with the initial supervised release condition by ensuring that the mental health
evaluator had any medical records necessary to complete the evaluation. Thus,
the district court did not modify the terms of Ms. Wayne’s supervised release.
b. Unreasonable Deprivation of Liberty
Ms. Wayne also asserts that this order unreasonably deprived her of liberty,
property, and privacy because it was based on events that were “so remote in time
as to have no value or relation to this matter.” Aplt. Am. Opening Br. at 17.
Under 18 U.S.C. § 3583(d), the district court required Ms. Wayne to release her
8
(...continued)
4(b)(1)(A); see Mitchell, 518 F.3d at 744.
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prior medical records to the mental health evaluator in order to effectuate the
initial supervised release condition of the sentencing court regarding a mental
health evaluation and, if necessary, treatment.
The initial supervised release condition qualifies as a discretionary
condition of probation listed in 18 U.S.C. § 3563(b), which authorizes the court to
require a defendant to “undergo available medical, psychiatric, or psychological
treatment.” 18 U.S.C. § 3563(b)(9); see Barajas, 331 F.3d at 1144. Because §
3563(b) authorizes a court to impose psychiatric or psychological treatment as a
special condition, it logically follows that this provision also must authorize
district courts to enter orders that are reasonably necessary to effectuate such a
special condition. Courts have upheld the disclosure of a supervisee’s mental
health records to a treatment provider to facilitate treatment. United States v.
Daniels, 541 F.3d 915, 929 (9th Cir. 2008), cert. denied, 129 S. Ct. 1600 (2009);
United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008), cert. denied, 129 S.
Ct. 957 (2009).
The district court’s directive to Ms. Wayne was just such an effectuating
order. It directed Ms. Wayne to release her prior medical records to allow a
properly informed mental evaluation to take place so that a determination could
be made concerning whether she needed mental health treatment. Under the
order, Ms. Wayne only has to release her prior medical records to the extent that
the mental health evaluator needs them to make a proper evaluation. It is not
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certain that the mental health evaluator would even request Ms. Wayne’s prior
medical records. 9 Even if the mental health evaluator were to request the records,
the district court assured Ms. Wayne that they would not be available to the
probation office. Because the release of the prior medical records is reasonably
necessary to ensure compliance with the initial supervised release condition, the
district court did not impermissibly deprive Ms. Wayne of her liberty, property, or
privacy when it required her to release those records to the mental health
evaluator—viz., the district court did not impinge upon these legitimate interests
any more than reasonably necessary to effectuate the initial supervised release
condition.
B. Delegation to Probation Office
We review Ms. Wayne’s constitutional challenge to the probation office’s
authority to recommend mental health counseling de novo. United States v.
Davis, 151 F.3d 1304, 1306 (10th Cir. 1998). Ms. Wayne argues that the district
court improperly delegated a judicial function to the probation office in violation
of Article III of the United States Constitution. She contends that the district
court ceded ultimate control over the imposition of mental health counseling to
9
Ms. Wayne also argues that the district court’s order was too broad
because it essentially would grant the mental health evaluator access to “medical
records which are so totally unrelated to any possible issue as to constitute a
complete invasion of privacy.” Aplt. Reply Br. at 12. Although Ms. Wayne made
this argument before the district court, she did not raise this argument on appeal
until her reply brief. Thus, Ms. Wayne waived this argument. Fed. R. App. P.
28(a)(9)(A); Bronson, 500 F.3d at 1104.
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the probation office. 10 This argument is without merit.
A court may delegate limited authority to a probation officer as long as the
court retains and exercises ultimate authority over all of the supervised release
conditions. Id. at 1307. In this action, the district court stated that “if the
evaluation shows that Ms. Wayne needs treatment, then the probation office can
request a modification of this supervised release condition and I will make a
determination as to whether treatment will be required or not.” Aplt. Am. App.
at 47 (emphasis added). At most, the district court delegated to the probation
officer the power to recommend future mental health treatment. Because the
district court retained the ultimate authority to require Ms. Wayne to undergo
mental health counseling, this condition was not an improper delegation of
judicial power. Cf. Davis, 151 F.3d at 1307 (holding that a sentencing court had
not improperly delegated judicial power to probation officers when it required
them to recommend revocation proceedings).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order.
10
To the extent Ms. Wayne contends that the sentencing court
improperly delegated authority over this condition to the probation office, she is
time-barred from raising this issue because she failed to challenge the sentencing
court’s judgment on direct appeal. Fed. R. App. P. 4(b)(1)(A); see Mitchell, 518
F.3d at 744.
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