UNITED STATES v. AKA AKA AKA AKA AKA AKA (2019)

SUMMARY ORDER

Defendant Mario Herrera appeals from a judgment of the United States District Court for the Southern District of New York (Preska, J.) following a guilty plea. Herrera challenges the district court’s imposition of the special condition of supervised release that he “shall participate in an outpatient substance abuse program approved by the United States Probation Office, which program may include testing to determine whether the defendant has reverted to using drugs or alcohol.” App. 34. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

We review the imposition of a special condition of supervised release for abuse of discretion. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001) (per curiam).¹ But because Herrera did not object to the special condition, which was contained in his Presentence Report, our review is for plain error. United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003); see also Fed. R. Crim. P. 52(b).

The power to impose special conditions of supervised release is vested exclusively in the district court. 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b)-(e). A district court may delegate to a probation officer decision-making authority over certain minor details of supervised release. Peterson, 248 F.3d at 85. However, “a district court may not delegate to the Probation Department decisionmaking authority which would make a defendant’s liberty itself contingent on a probation officer’s exercise of discretion.” United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015). “In other words, the extensive supervision mission of federal probation officers includes executing the sentence, but not imposing it.” Id.

The district court did not impermissibly delegate its judicial authority to the Probation Office. The district court did not require Herrera to participate in an outpatient substance abuse program “as directed by the U.S. Probation Office.” Peterson, 248 F.3d at 85. Rather, the condition clearly mandates that Herrera “shall participate in an outpatient substance abuse program․” App. 34 (emphasis added).² The Probation Office was given the discretion to “approve[ ]” the specific program. Id. Thus, the district court “intend[ed] that the [treatment] be mandatory but le[ft] ․ the selection of a ․ provider ․ to the probation officer.” Peterson, 248 F.3d at 85.

Accordingly, we AFFIRM the judgment of the district court.

FOOTNOTES

1.   Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.

2.   Nor did the district court impermissibly delegate to the Probation Office the authority to administer drug testing as a component of Herrera’s treatment program, as a district court “may authorize the Probation office to approve and oversee the details of [outpatient] treatment.” United States v. Young, 910 F.3d 665, 675 (2d Cir. 2018).