UNITED STATES v. HARRIS (2019)

ORDER AND JUDGMENT *

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Steven Harris pleaded guilty to one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The probation office recommended that the district court impose, at sentencing, standard condition of supervised release twelve (“Standard Condition Twelve”). Standard Condition Twelve provides: “If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction.” U.S.S.G. § 5D1.3(c)(12). Harris objected, asserting Standard Condition Twelve “improperly delegate[d] power to the probation department that should lie with the [c]ourt.” He claimed “[a] probation officer should not have unfettered authority to require an individual on supervised release to notify or require notification of unidentified ‘risks’ to third parties” and asserted it was the district court’s “duty to determine the appropriate parameters for this condition, leaving the probation officer only the administration of those parameters.” The district court overruled Harris’s objection. In doing so, the district court explained its position was “consistent” with the one it had previously taken in United States v. Cabral, 926 F.3d 687 (10th Cir. 2019), which was at that time on appeal before this court.

Cabral has now been decided. Cabral held that Standard Condition Twelve “is an improper delegation of judicial power” because it grants probation officers “decision-making authority that could infringe on a wide variety of liberty interests.” Id. at 699. In an exhibition of admirable candor, the United States concedes that Cabral controls the disposition of this appeal and compels a remand to the district court for resentencing. See id. Accordingly, this court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and remands to the district court to vacate Harris’s sentence and to resentence him consistent with this court’s opinion in Cabral. See id.

Michael R. Murphy, Circuit Judge