United States v. Martinez ( 2021 )

Case: 20-20148 Document: 00515737426 Page: 1 Date Filed: 02/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 8, 2021
No. 20-20148
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Abran Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-34-1
Before Elrod, Duncan, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
We WITHDRAW the prior opinion filed October 27, 2020 and
substitute the following.
The district court modified the conditions of supervised release for
Appellant Abran Martinez to include the provision that Martinez
“participate in an inpatient or outpatient substance-abuse treatment
program” supervised by Martinez’s probation officer. Because the option to
require inpatient rehabilitation delegates to the probation officer the judicial
decision to significantly restrict Martinez’s liberty during treatment, we
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No. 20-20148
VACATE that condition of supervised release and REMAND to the
district court for further proceedings consistent with this opinion.
I.
Martinez pleaded guilty to unlawful escape after he failed to return to
a halfway house at the end of a workday. Martinez began serving the
supervised-release portion of his sentence for that offense in August of 2018.
In November 2018, Martinez’s probation officer petitioned the district court
to modify the conditions of Martinez’s supervised release because Martinez
tested positive for cocaine use. The modification required Martinez to
“participate in a program of testing and treatment for drug abuse.”
Martinez’s probation officer once more petitioned the court for a
modification in August of 2019 because Martinez continued to engage in drug
use. At the revocation hearing for this petition, Martinez’s counsel said that
Martinez “would be the first to admit there are times that he struggles with
substance abuse.” Martinez’s substance-abuse struggles sparked the
following dialogue between the district court and Martinez:
[THE COURT:] It seems to me—you know, I may be off
base, or maybe not—that you’re your own worst enemy. You
walked away from a halfway house; that got you the escape
charge. You failed to report. You’ve done, you know, cocaine
on a number of occasions. And I understand how hard
sometimes those habits are to break.
But, you know, as a judge, we can order drug treatment, we can
order all these different things to try to help, but you’re the
only one that can make that decision for yourself. You need to
really take it to heart. . . .
I’m going to sentence you, but I’m also going to recommend to
the Bureau of Prisons that you participate in the drug treatment
program. When you get out, I want you to participate in the
drug treatment program.
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All right. The Court hereby revokes the term of supervised
release in 17-CR-34 and sentences the defendant Abran
Martinez to 10 months in the custody of Bureau of Prisons with
the reimposition of supervised release under the same terms
and conditions of one year. . . .
Mr. Martinez, as I said, I can order things until I’m blue in the
face. It only works if you really put your heart into it.
THE DEFENDANT: By continuing on this release, it
just—I mean, I’ve tried it. I’ve tried it several times. I don’t
know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll
try again.
THE COURT: I want you to try again. I know that the
probation department didn’t recommend it. And that is one of
the reasons I only put you back on for a year. If I can help you
make that step, I want to help you, but try it one more time.
Our goal is to get you off drugs. I don’t want to run your life. I
have enough trouble running my life. But I want to give you a
chance to break this drug habit.
After the hearing, the district court imposed the following written
condition:
You must participate in an inpatient or outpatient substance-
abuse treatment program and follow the rules and regulations
of that program. The probation officer will supervise your
participation in the program, including the provider, location,
modality, duration, and intensity. You must pay the costs of
the program, if financially able.
II.
Martinez appealed the written condition, challenging particularly the
words “inpatient or outpatient.” Martinez argues first that he did not have
an opportunity to object to these words because he encountered them for the
first time in the written judgment. Thus, according to Martinez, our review
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should be for abuse of discretion. Martinez then argues that the words
“inpatient or outpatient” impermissibly delegate judicial sentencing
authority to Martinez’s probation officer because inpatient drug-treatment
involves a significant deprivation of liberty.
The government, conversely, asserts that we should review for plain
error because Martinez failed to object to the condition of supervised release
in the district court. According to the government, Martinez did have the
opportunity to object because the district court stated it was imposing a term
of supervised release “under the same terms and conditions” as the 2018
modification to Martinez’s supervised release. On the government’s theory,
although the 2018 modification did not contain the words “inpatient or
outpatient,” it implicitly contained those options; “by leaving those terms
unstated, the 2018 condition necessarily contains both.”
We agree with Martinez. He had no opportunity to object, and so we
review for abuse of discretion. In United States v. Franklin, we reviewed an
appeal of a condition of supervised release for abuse of discretion because the
defendant had no opportunity to object to the discretion given to a probation
officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016).
The district court’s oral pronouncement at the sentencing hearing did not
mention or define the probation officer’s role in the recommended mental-
health treatment. Id. Similarly, in this case the district court’s oral
statements at the sentencing hearing did not mention or define the discretion
the court would give to the probation officer to choose between inpatient and
outpatient treatment. The government’s theory that Martinez should have
objected based on the implicit terms of the 2018 modification would require
Martinez to object to language that the court could have—but did not—
include in its conditions of supervised release. That theory flies in the face
of the “abundance of caution” we exercised in Franklin and would lead to
unnecessary, inadvertent forfeitures. See 838 F.3d at 567; see also United
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States v. Diggles, 957 F.3d 551, 560 (5th Cir.) (en banc) (“Our forfeiture
caselaw in this area should be remoored to the opportunity to object.”), cert.
denied, No. 20-5836, 2020 WL 6551832 (Nov. 9, 2020); United States v.
Lomas, 643 F. App’x 319, 324 (5th Cir. 2016).
III.
The district court abused its discretion by giving Martinez’s probation
officer the option to choose between inpatient and outpatient drug treatment.
While probation officers may “manage aspects of sentences” and oversee the
conditions of supervised release, a probation officer may not exercise the
“‘core judicial function’ of imposing a sentence, ‘including the terms and
conditions of supervised release.’” United States v. Barber, 865 F.3d 837, 839
(5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the
court and may not be delegated. Id. We have previously vacated special
conditions that delegate judicial authority to the probation officer by allowing
the probation officer to decide whether mental-health or substance-abuse
treatment should be required. United States v. Simpson, 788 F. App’x 991,
992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th
Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017);
Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving
a probation officer the option to require inpatient treatment impermissibly
delegates a core judicial function.
Three of our sister circuits have addressed this question in published
opinions, and each has decided that the court may not delegate the decision
to require inpatient treatment to a probation officer because of the significant
liberty interests at stake in confinement during inpatient treatment.1 See
1
Two other circuits have addressed related issues in unpublished opinions. United
States v. Cutler, 259 F. App’x 883, 886–87 (7th Cir. 2008) (unpublished); United States v.
Calnan, 194 F. App’x 868, 870–71 (11th Cir. 2006) (unpublished). In Cutler, the Seventh
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No. 20-20148
United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v.
Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552
F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient
treatment because the patient cannot leave; the patient must remain at the
hospital or facility day and night throughout the duration of the treatment.
Matta, 777 F.3d at 122. “Conditions that that touch on significant liberty
interests are qualitatively different from those that do not.” Mike, 632 F.3d
at 695.
Mike is right. The decision to place a defendant in inpatient treatment
cannot be characterized as one of the managerial details that may be entrusted
to probation officers. See Barber, 865 F.3d at 839. Here, because of
Martinez’s short ten-month sentence, the district court should not have
delegated the decision to further restrict a defendant’s liberty during the
course of treatment while on supervised release. Cf. United States v. Medel-
Guadalupe, No. 19-40901, slip op. at 10 (5th Cir. Feb. 8, 2021) (permitting
delegation of the inpatient–outpatient decision after a longer, ten-year
sentence). That said, our decision should not be construed to prevent a
defendant from electing inpatient treatment in the absence of a court order.
Instead, we hold today that the court should not have delegated to the
probation officer the decision to require inpatient, rather than outpatient,
treatment because of the liberty interests at stake and the length of the
sentence.
Circuit rejected the appellant’s argument that the probation officer should have placed him
in inpatient, rather than outpatient, care when the conditions on supervised release did not
use either term. 259 F. App’x at 885, 887. The court characterized the inpatient–
outpatient decision as a delegable “treatment detail.” Id. In Calnan, the Eleventh Circuit
concluded that delegation of the inpatient–outpatient decision did not constitute plain
error. 194 F. App’x at 870–71.
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* * *
The condition allowing Martinez’s probation officer to elect between
inpatient or outpatient treatment is VACATED, and the case is
REMANDED for further proceedings consistent with this opinion.
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