# Un ited Sta tes C our t of A pp eals For the First C ircuit

No. 01-2643 UNITED STATES OF AMERICA, Appellee,

v. EDWIN C. ALLEN, II, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge ]

Before Torruella, Circuit Judge , Stahl, Senior Circuit Judge , and Howard, Circuit Judge .

David Abraham Silverman , for appellant. F. Mark Terison , Senior Litigation Counsel, with whom Paula D. Silsby , United States Attorney, was on brief, for appellee.

December 10, 20021 Applying the 2000 Sentencing Guidelines, Judge Hornby found that

Allen fell in the Zone C range of eight to fourteen m on ths imprisonment. -2-

TORRUELLA, Circuit Judge . Defendant-appellant, Edwin C. Allen, appeals the special condition s of his supervised release. Because we do not find that the district court erred in im posin g the conditions, we affirm.I. Background

On April 27, 2001, Allen pled guilty to a single count of tax evasion for making a false claim on a financial statement. Basedupon a claim of diminished mental capacity, Allen sought a downward departure from the sentencing range listed in the United S tates Sentencing Guidelines (U.S.S.G.). 1 The district court refusedhis request and on November 5, 2001 sentenced him to eight months imprisonment followed by three years of supervised release.

Allen makes two arguments attacking the special

con ditions imposed. First, he argues that three conditions a r e overbroadand involve a greater deprivation of liberty than is reasonably necessary for the purposes of h is supervised release. Sec ond, he contends that the special condition requiring tha t h e attendmental health treatment improperly delegates judicial authority to the probation officer. II. Standard of Review Ordinarily, we would review the impos i tion of special conditions of supervised release for abuse of discretion. United2 U.S.S.G. § 5D1.3(b) states in its entirety:

(b) The court may impose other conditions of supervised release to the extent that such con ditions (1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the needto protect the public from further c rim es of the -3- States v. Peppe , 80 F.3d 19, 22 (1st Cir. 1996). However, because Allen had an opportunity to object to the special conditions and failed to do so, we review for plain error only. Id. "The plain

error hurdle is high. Under the standard, we may set aside the challengedportion of the instant sentence if, and only if, the appellant succeeds in showing an obvious and clear error under current law that affected his substantial rights." United States

v. Bro wn , 235 F. 3d 2, 4 (1st Cir. 2000) (citations and internal quotation marks omitted). However, "[e]ven then, we may decline to correct an error that does not ser iously affect the fairness, integrity or public reputation of judicial proceedings." Id. III. Overbreadth Challenges U.S.S.G. § 5D1.3 governs the conditions of sup e rvised release. The court may impose additional conditions where they are reasonably related to the offense and the history of the defendant,

as long as they do not deprive the defendant of a greater amount "of liberty than is reasonably necessary" to deter criminal conduct andto protect the public from the defendant. U.S.S.G. § 5D1.3(b) ( 2000). 2 The Federal Sentencing Commission ("the Commission")defendant; and (D) the need to provide the defendant with

needededucational or vocational training, medical care, or other correctional treatment in the m o st effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pert inent policy statements issued by the Sentencing Commission.

3 It is notable that the credit condition does not prevent Allen fromobtaining credit; it merely requires that he gain approval from his probation officer before applying for credit. -4- provi des a list of "special conditions" that it recommends i n specifiedcircumstances. U.S.S.G. § 5D1.3(d). We now consider the special conditions that Allen challenges.

A. Financial Information and Credit Limitations Allen argues that the provisions requiring that he "provide the probation officer with access to any requested financial informat ion" and limiting his ability to obtain credit

are over bro ad in violation of section 5D1.3(b). 3 Far from committing error, the district court imposed s pecial conditions that the Commission specifically recommends for defendants, such as Allen, who are paying fines in installments. U.S.S.G. § 5D1.3(d) (2)-(3). Consequently, Allen has not established that the district court imposed these conditions in clear error.

B. Alcohol Prohibitions Allen next challenges the special condition prohibiting his possession of alco hol and his presence at establishments primarily serving alcohol. The condition provides:4 Allen can petiti on for a cha nge in the condition if it is

applied unreasonably. See 18 U.S.C. § 3583(e). -5- Defendant shall not at any time be in possession, joint, sole, actual or constructive, of any alcoholic beverage. He shall not associate with individuals consuming alcoholic beverages, shall not frequent business establishments whose primary product to the consumer is alcoholic beverages, and shall not use any medication containing alcohol without permission from the probation officer or a prescription from a licensed physician. Allen argues that the condition is overbroadand that there is not

an adequate relationship b etwe en the nature and circumstances of his offense and the special condition imposed.

Allen has not shown that the alcohol condition is so broadly drawn or divorced from the nature and circumstances of his offense that it constitutes clear error. The record contains ample evidence of Allen's history of alcohol abuse, including a conviction for driving while under the influence of alcohol. In addition, defens e coun sel argued that Allen's mental illness contributedto the commission of his crime, and that Allen's abuse of alcohol exacerbated the symptoms of the mental illness. Based on the record, the district court did not commit obvious error in concluding that Allen's history of alcohol abuse required a stiff prohibition, 4 see United States v. Thurlow , 44 F.3d 46 , 47 (1st Cir. 1995) (upholding a special condition prohibiting the use and possession of alcohol where the record showed a history of alcohol-6-

abuse) , and that there was "an adequate relationship between the nature and c ircu mstances of the offense, the demonstrated propensities of the offender and the special condition attached to th e off ender's release," Brown , 235 F.3d at 7. Far from erring, the district court created an alcoho l proh ibition reasonably relatedto Allen's history of alcohol abuse and to permissible goals of supervised release, including Allen's rehabilitation and protection of the public. IV. Delegation Argument Finally, Allen claims that Judge Hornby impermissibly delegatedjudicial authority to the probation officer when he ordered, as a special condition of supervised release, that "[d]efendant shall par tici pate in a program of mental health treatment, as directed by the probation officer, until such time as the defendant is released from the program by the probation offi cer ." According to Allen, this condition is an unlawful delega tion because it empowers the probation officer to decide whether and for how long Allen must participate in mental health treatment. While " [ c]ases or controversies committed to Art. III courts canno t be delegated to nonjudicial officers for resolution[,] [t]hat general principle does not . . . prohibit courts from using nonjudicial officers to support judicial functions, as long as that judicial officer retains and exercises-7-

ultimate responsibility." United States v. Johnson , 48 F.3d 806, 809 (4th Cir. 1995); s ee al so United States v. Raddatz , 477 U.S. 667, 683 (1980) (holding that "so long as the ultimate decision is made by the district court," delegation to a magistrate judge does not violate Article III); cf. United States v. Merric , 166 F.3d 406, 409 (1st Cir. 1999) (vacating a sentence in wh ich the judge delegatedfinal authority over defendant's fine payment schedule to the probation officer). Allen relies on cases outside this Circuit for his claim that this special condition amounted to an unlawful delega tion. See United States v. Peterson , 248 F.3d 79 (2d Cir. 2001); United States v. Kent , 209 F.3d 1073 (8th Cir. 2000). Unlike Allen, we do not read these opinions as announcing -- nor do

we adopt -- a general rule that counseling clauses such as the one be fore u s are prohibited. However, these cases do provide persuasive guidance for the proposition that special conditions of probation should be evaluated in light of the facts of the case as reflectedby the entire record. In Kent , the Eighth Circuit vacatedthe district cou rt's imposition of a special condition requiring the defendant to attend psychological counseling because it appeared that the "probation officer, as opposed to the court, wouldretain and exercise ultimate responsibility over the situation." Kent , 209 F.3d at 1079. Cru cially, th e court made this determination after examining t he e ntire record and finding both that the trial judge had stated outright that the parole-8-

officer would be the one to determine whether defendant had to attendcounseling and that the record did not demonstrate that the defendant had mental health pro blems. Id. at 1075, 1078-79. Citing to Kent , the Second Circuit provided a concise rule for delegations of psychiatric counseling:

If [the defendant] is required to participate in a mental health intervention only if directedto do so by his p robation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer. On the other hand, if the District Court was intending nothing more than to delegate to the probation officer details with respect to the selection and schedule of the program, such delegation was proper. Peterson , 248 F.3d at 85 (citations omitted).

When we examine the record, it becomes evident that Judge Hornby was merely directing the probation offi cer to perform ministerial support services and was not giving the off ice r the power to determine wheth er A llen had to attend psychiatric counseling. The recordcontains many references to Allen's mental illness. For example, defense counsel submitted an affidavit from Allen's doctor, Ronald S. Ebert, who "found that there was a history suggestive of a mental illness as well as alcohol abuse" andopined that Allen was "suffering fro m a major depressive disorder characterized by mood disorder, depression, disorganized andconfused thinking, anxiety and irritability." Defense counsel stated Dr. Stephanie Brody diagnosed Allen with "affective mental-9-

illness." Defense counsel argued that Allen's mental illness contributedto the commission of Allen's crime and asked the court to impose mental health treatment as a condition of probation, if the court agreed to a reduction in his sen tence. The extensive evidence of Allen's mental illness indicates that the cou rt was imposing mandatory counseling and delegating the administrative details to the probation officer, actions co n stituting a permissible delegation. See Peterson , 248 F.3d at 85. V. Conclusion For the reasons stated above, we affirm .