United States Court of Appeals

For the First Circuit

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, 2002
1 Applying the 2000 Sentencing Guidelines, Judge Hornby found that

Allen fell in the Zone C range of eight to fourteen months

imprisonment.

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TORRUELLA, Circuit Judge. Defendant-appellant, Edwin C.

Allen, appeals the special conditions of his supervised release.

Because we do not find that the district court erred in imposing

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.

Based upon a claim of diminished mental capacity, Allen sought a

downward departure from the sentencing range listed in the United

States Sentencing Guidelines (U.S.S.G.).1 The district court

refused his 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

conditions imposed. First, he argues that three conditions are

overbroad and involve a greater deprivation of liberty than is

reasonably necessary for the purposes of his supervised release.

Second, he contends that the special condition requiring that he

attend mental health treatment improperly delegates judicial

authority to the probation officer.

II. Standard of Review

Ordinarily, we would review the imposition of special

conditions of supervised release for abuse of discretion. United
2 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 conditions (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

need to protect the public from further crimes of the

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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

challenged portion 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. Brown, 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 seriously affect the fairness,

integrity or public reputation of judicial proceedings." Id.

III. Overbreadth Challenges

U.S.S.G. § 5D1.3 governs the conditions of supervised

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

and to 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

needed educational or vocational training, medical care,

or other correctional treatment in the most 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 pertinent policy

statements issued by the Sentencing Commission.

3 It is notable that the credit condition does not prevent Allen

from obtaining credit; it merely requires that he gain approval

from his probation officer before applying for credit.

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provides a list of "special conditions" that it recommends in

specified circumstances. 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 information" and limiting his ability to obtain credit

are overbroad in violation of section 5D1.3(b).3 Far from

committing error, the district court imposed special 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 alcohol and his presence at establishments

primarily serving alcohol. The condition provides:
4 Allen can petition for a change in the condition if it is

applied unreasonably. See 18 U.S.C. § 3583(e).

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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 overbroad and that there is not

an adequate relationship between 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, defense counsel argued that Allen's mental illness

contributed to 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
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abuse), and that there was "an adequate relationship between the

nature and circumstances of the offense, the demonstrated

propensities of the offender and the special condition attached to

the offender's release," Brown, 235 F.3d at 7. Far from erring,

the district court created an alcohol prohibition reasonably

related to 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

delegated judicial authority to the probation officer when he

ordered, as a special condition of supervised release, that

"[d]efendant shall participate 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

officer." According to Allen, this condition is an unlawful

delegation 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 cannot 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
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ultimate responsibility." United States v. Johnson, 48 F.3d 806,

809 (4th Cir. 1995); see also 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 which the judge

delegated final 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

delegation. 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

before us 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

reflected by the entire record. In Kent, the Eighth Circuit

vacated the district court'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,

would retain and exercise ultimate responsibility over the

situation." Kent, 209 F.3d at 1079. Crucially, the court made

this determination after examining the entire record and finding

both that the trial judge had stated outright that the parole
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officer would be the one to determine whether defendant had to

attend counseling and that the record did not demonstrate that the

defendant had mental health problems. 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

directed to do so by his probation 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 officer to perform

ministerial support services and was not giving the officer the

power to determine whether Allen had to attend psychiatric

counseling. The record contains 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"

and opined that Allen was "suffering from a major depressive

disorder characterized by mood disorder, depression, disorganized

and confused thinking, anxiety and irritability." Defense counsel

stated Dr. Stephanie Brody diagnosed Allen with "affective mental
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illness." Defense counsel argued that Allen's mental illness

contributed to 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 sentence. The extensive

evidence of Allen's mental illness indicates that the court was

imposing mandatory counseling and delegating the administrative

details to the probation officer, actions constituting a

permissible delegation. See Peterson, 248 F.3d at 85.

V. Conclusion

For the reasons stated above, we affirm.