IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11654

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

SEBASTIAN GUTIERREZ, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:16-CR-155-1 

Before JONES, OWEN, and HAYNES, Circuit Judges. 

PER CURIAM:*

Sebastian Gutierrez pleaded guilty to one count of possessing child 

pornography, and he received a sentence of 78 months in prison, to be followed 

by a 15-year term of supervised release. On appeal, he challenges only a 

special condition of supervised release. The district court ordered that 

Gutierrez “shall participate in sex-offender treatment services as directed by 

the probation officer until successfully discharged.” Gutierrez now argues that 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2017

Lyle W. Cayce

Clerk

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this special condition impermissibly delegates a judicial function to the 

probation officer and to the treating therapist. 

Because Gutierrez did not object to the imposition of this condition, 

despite having an opportunity to do so, we review his argument for plain error. 

See United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010). To prevail on 

plain error review, Gutierrez must identify (1) a forfeited error (2) that is clear 

or obvious, rather than subject to reasonable dispute, and (3) that affects his 

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he 

satisfies the first three requirements, this court, may, in its discretion, remedy 

the error if it “seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Id. (internal quotation marks and citation omitted). 

Gutierrez first argues that requiring him to participate in the sexoffender treatment program “as directed by the probation officer” improperly 

delegates to the probation officer the decision whether he must seek such 

treatment at all. The court may delegate to a probation officer decisions about 

the details of a supervised release condition, including a treatment program, 

but it may not delegate the decision whether to participate in such a program. 

See United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016). We have held 

that requiring a defendant to seek treatment “as deemed necessary and 

approved by a probation officer” could constitute an impermissible delegation 

of authority, as it is ambiguous. See id. at 566, 568. However, the special 

condition in Gutierrez’s case does not include the problematic “as deemed 

necessary” language. In unpublished opinions, we have held that requiring 

participation in a treatment program “as directed by the probation officer” does 

not constitute an impermissible delegation of authority, as it permits the 

probation officer to address only the details of the treatment, not the necessity 

for such treatment. United States v. Terrell, 677 F. App’x 938, 940 (5th Cir. 

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2017); see also United States v. Rhodes, 2017 U.S. App. LEXIS 13137 (5th Cir. 

July 21, 2017) (not designated for publication) (holding that employing this 

language was not plain error). In light of these decisions, Gutierrez is unable 

to show that requiring him to participate in treatment “as directed by the 

probation officer” constitutes a clear or obvious error. See Puckett, 556 U.S. at 

135; Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).

In addition, Gutierrez maintains that requiring him to participate in the 

sex-offender treatment program “until successfully discharged,” in the absence 

of specific criteria detailing appropriate conditions of the program or what 

constitutes “successful” completion, constitutes an impermissible delegation of 

judicial authority to the treating therapist. A district court may delegate to a 

therapist “the manner and means of therapy during a treatment program.” 

United States v. Morin, 832 F.3d 513, 516-17 (5th Cir. 2016). Nothing in the 

special condition imposed by the district court indicates that the therapist 

would be authorized to impose extra supervised release conditions that would 

be “separate and apart from non-compliance with the treatment program.” Id.

at 517. Gutierrez is unable to show that requiring the therapist to ascertain 

whether he successfully completed the program constitutes a clear or obvious 

error. See Puckett, 556 U.S. at 135; Morin, 832 F.3d at 516-17. As a result, the 

judgment of the district court is AFFIRMED. 

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