16

‐ 3458

‐ cr

United States v. Young



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 16

‐ 3458

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

A LLEN M. Y OUNG

, Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Western District of New York

S UBMITTED : A UGUST 17, 2018

D ECIDED : D ECEMBER 12, 20182 Before: C ABRANES and L YNCH

, Circuit Judges

, and K ORMAN

, District

Judge

. *

The principal question presented is whether the District Court

improperly delegated its judicial authority to the United States

Probation Office when it ordered as a special condition of supervised

release that the defendant submit to mental health and substance

abuse testing and evaluation and follow “any treatment

recommendations.” The defendant further argues that his sentence is

procedurally unreasonable because: (1) the District Court erroneously

applied the official victim enhancement of United States Sentencing

Guidelines section 3A1.2(c)(1); and (2) the District Court failed to grant

a downward departure pursuant to United States Sentencing

Guidelines section 5K2.23. We conclude that the District Court did not

improperly delegate its judicial authority and that the sentence is not

procedurally unreasonable and therefore AFFIRM the October 11,

2016 judgment of the United States District Court for the Western

District of New York (Frank P. Geraci, Jr., Judge ).

Judge Lynch concurs in part and dissents in part in a separate

opinion.

* Judge Edward R. Korman, of the United States District Court for the

Eastern District of New York, sitting by designation.3 Monica J. Richards, Assistant United States

Attorney for James P. Kennedy, Jr., United

States Attorney, Western District of New

York, Buffalo, NY, for Appellee

.

John A. Kuchera, Waco, TX, for Defendant

‐

Appellant.

J OSÉ A. C ABRANES

, Circuit Judge :

The principal question presented is whether the District Court

improperly delegated its judicial authority to the United States

Probation Office when it ordered as a special condition of supervised

release that the defendant submit to mental health and substance

abuse testing and evaluation and follow “any treatment

recommendations.” The defendant Allen M. Young (“Young”) further

argues that his sentence is procedurally unreasonable because: (1) the

District Court erroneously applied the official victim enhancement of

United States Sentencing Guidelines section 3A1.2(c)(1); and (2) the

District Court failed to grant a downward departure pursuant to

United States Sentencing Guidelines section 5K2.23. We conclude that

the District Court did not improperly delegate its judicial authority

and that the sentence is not procedurally unreasonable and therefore

AFFIRM the October 11, 2016 judgment of the United States District

Court for the Western District of New York (Frank P. Geraci, Jr., Judge ).4 I. BACKGROUND

Young appeals from an October 11, 2016 judgment of the

District Court convicting him, following a guilty plea, of possession

with intent to distribute methylone in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), and 851. The District Court sentenced Young

to 200 months’ imprisonment to be followed by six years of supervised

release, as well as a special assessment. On appeal, Young argues that

the District Court erred by delegating to the Probation Office the

decision of whether Young, upon release, would be required to

participate in mental health or substance abuse treatment. He further

argues that his sentence is procedurally unreasonable because: (1) the

District Court erroneously applied the official victim enhancement of

United States Sentencing Guidelines section 3A1.2(c)(1); 1 and (2) the

District Court failed to grant a downward departure pursuant to

United States Sentencing Guidelines section 5K2.23. 2

1 Section 3A1.2(c)(1) of the Sentencing Guidelines provides in relevant part:

If, in a manner creating a substantial risk of serious

bodily injury, the defendant

. . . knowing or having

reasonable cause to believe that a person was a law

enforcement officer, assaulted such officer during the

course of the offense or immediate flight therefrom

. . . increase by 6 levels.

2 Section 5K2.23 of the Sentencing Guidelines provides in relevant part:

A downward departure may be appropriate if the

defendant (1) has completed serving a term of

imprisonment; and (2) subsection (b) of § 5G1.3

. . . would have provided an adjustment had that5 We review the imposition of conditions of supervised release for

“abuse of discretion.” 3 We review legal issues arising from the

imposition of such conditions de novo, and of course an error of law

constitutes an abuse of discretion. 4 When a defendant fails to object to

a condition, we typically review for plain error, but we may “relax the

otherwise rigorous standards of plain error review” under certain

circumstances, such as where a defendant lacked prior notice of the

challenged condition. 5

The procedural reasonableness of a sentence is likewise

reviewed for “abuse of discretion.” 6 A district court’s interpretation of

the Guidelines is reviewed de novo; its findings of fact are reviewed

for clear error. 7

completed term of imprisonment been undischarged

at the time of sentencing for the instant offense.

3 United States v. Reeves

, 591 F.3d 77, 80 (2d Cir. 2010). See also In re City of

New York

, 607 F.3d 923, 943 n.21 (2d Cir. 2010); Sims v. Blot

, 534 F.3d 117, 132 (2d

Cir. 2008) (“A district court has abused its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence or

rendered a decision that cannot be located within the range of permissible

decisions.” (brackets, citations, and internal quotation marks omitted)).

4 Reeves

, 591 F.3d at 80.

5 United States v. Sofsky

, 287 F.3d 122, 125 (2d Cir. 2002).

6 United States v. Robinson

, 799 F.3d 196, 201 (2d Cir. 2015).

7 United States v. Watkins

, 667 F.3d 254, 261 (2d Cir. 2012).6 II. DISCUSSION

A. Delegation to the Probation Office

1. Law

United States probation officers serve as “officers of the court.” 8

In their capacity as confidential advisers to the court, federal probation

officers are regarded as “the court’s eyes and ears,

. . . neutral

information gatherer[ers] with loyalties to no one but the court.” 9

Indeed, because “the United States Probation Office is established

pursuant to the direction of Congress as an arm of the United States

District Court, it is reasonable to view the United States Probation

Office itself as a legally constituted arm of the judicial branch.” 10

Although the Probation Office is undeniably part of the federal

judiciary, we have nonetheless stated that there are limits on a District

Court’s ability to delegate judicial authority to a probation officer.

In determining whether the District Court impermissibly

delegated its authority to the United States Probation Office when it

imposed on Young special mental health and substance abuse

8 United States v. Reyes

, 283 F.3d 446, 455 (2d Cir. 2002) (internal quotation

marks and citation omitted).

9 Id. (citation and internal quotation marks omitted).

10 Id. (brackets, citations, and internal quotation marks omitted).7 conditions, we are guided by this Court’s precedents in United States

v. Peterson 11 and United States v. Matta

. 12

In Peterson

, we confronted the following special condition of

probation: “[T]he defendant is to enroll, attend and participate in

mental health intervention specifically designed for the treatment of

sexual predators as directed by the U.S. Probation Office .” 13 Our

discussion focused principally on the ambiguity in the special

condition’s language. We noted that while the first clause (“[t]he

defendant is to enroll, attend and participate”) suggests that mental

health treatment is mandatory, the second clause (“as directed by the

U.S. Probation Office”) could be understood to qualify the mandatory

nature of that obligation. 14 We vacated and remanded this aspect of

the sentence so that, upon resentencing, the district court could resolve

this ambiguity and clarify whether it intended mandatory therapy. As

we explained, “[i]f the district court intends that the therapy be

mandatory but leaves a variety of details, including the selection of a

therapy provider and schedule to the probation officer, such a

condition of probation may be imposed.” 15 If, however, “the court

intends to leave the issue of the defendant’s participation in therapy to

the discretion of the probation officer, such a condition would

11 248 F.3d 79 (2d Cir. 2001).

12 777 F.3d 116 (2d Cir. 2015).

13 Peterson

, 248 F.3d at 84

‐ 85 (emphasis in original).

14 Id. at 85.

15 Id.8 constitute an impermissible delegation of judicial authority and

should not be included.” 16 In sum, it was the district court’s inclusion

of the clause “as directed by the U.S. Probation Office” that rendered

the otherwise mandatory special condition of counseling ambiguous

and potentially unlawful.

In Matta

, we addressed a special condition of supervised release

which left “to the discretion of Probation” the decision of whether an

inpatient or outpatient program was “most appropriate.” 17 We

remanded, holding that “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.” 18 In sum, because inpatient treatment “affects a

significant liberty interest,” it cannot be imposed by a probation officer

in his or her supervisory capacity, but must instead be “imposed by

the district court and supported by particularized findings that it does

not constitute a greater deprivation of liberty than reasonably

necessary to accomplish the goals of sentencing.” 19

16 Id.

17 Matta

, 777 F.3d at 122.

18 Id.

19 Id. at 123.9 2. Analysis

On appeal, Young challenges the special conditions as recorded

in the written judgment. The written judgment states the special

conditions of supervised release as follows:

The defendant shall submit to substance

abuse testing, to include urinalysis and other

testing. Details of such testing to be

approved by the U.S. Probation Office. If

substance abuse is indicated by testing, the

defendant is to complete a drug/alcohol

evaluation and enter into any treatment as

deemed necessary by the U.S. Probation Office

and/or the Court. The defendant is not to

leave treatment until discharge is agreed to by

the U.S. Probation Office and/or the Court

. . . .

The defendant is to submit to a mental health

evaluation. If indicated by the evaluation, the

defendant shall participate in mental health

treatment, the details of such treatment to be

approved by the U.S. Probation Office

. The

defendant is not to leave such treatment until

discharge is agreed to by the U.S. Probation

Office and the treating agency

. . . . 20

20 Appellant App’x 32 (emphasis added).10 Pointing to the text emphasized above, Young argues that the special

conditions unlawfully delegate judicial authority to the Probation

Office.

Importantly, the decretal text Young complains of appears only

in the written judgment. By contrast, during the sentencing hearing,

the District Court orally pronounced the special conditions as follows:

You must submit to drug testing and

evaluation and follow any treatment

recommendations.

You also must submit to mental health

testing, evaluation, and any treatment

recommendations. 21

Insofar as there is a variance between the written and oral

conditions, the District Court’s oral pronouncement controls. 22 Later

written modifications of the terms of supervised release omitted from

the oral pronouncement are permitted where they add: (1) conditions

of supervised release listed as “mandatory” or “standard” in

subsections 5D1.3(a) or (c) of the United States Sentencing Guidelines;

(2) conditions “recommended” by subsection 5D1.3(d) of the

Guidelines; 23 and (3) “basic administrative requirements that are

21 Id. at 65.

22 United States v. Rosario

, 386 F.3d 166, 168 (2d Cir. 2004).

23 Subsection 5D1.3(d) of the Guidelines lists as “recommended” certain

“special” conditions, including the following:11 necessary to supervised release.” 24

a. Substance Abuse Condition

The first written condition—the “Substance Abuse

Condition”—appears to suffer from precisely the same defect as the

condition found objectionable in Peterson

. Whereas the first clause

(“defendant is to complete a drug/alcohol evaluation and enter into

any treatment”) suggests that substance abuse treatment is

mandatory, the second clause (“as deemed necessary by the U.S.

Probation Office”) can be understood to delegate authority to the

Probation Office. As in Peterson

, it is unclear from this written

condition whether the District Court is mandating treatment if

(4) Substance Abuse

If the court has reason to believe that the defendant is

an abuser of narcotics, other controlled substances or

alcohol

– (A) a condition requiring the defendant to

participate in a program approved by the United

States Probation Office for substance abuse, which

program may include testing to determine whether

the defendant has reverted to the use of drugs or

alcohol; and (B) a condition specifying that the

defendant shall not use or possess alcohol.

(5) Mental Health Program Participation

If the court has reason to believe that the defendant is

in need of psychological or psychiatric treatment

– a

condition requiring that the defendant participate in

a mental health program approved by the United

States Probation Office.

24 Rosario

, 386 F.3d at 169 (internal citations and quotation marks omitted).12 indicated by evaluation, or leaving the ultimate decision of whether to

require treatment to the Probation Office.

By contrast, the District Court’s oral pronouncement of the

Substance Abuse Condition—which controls—unambiguously

requires Young to enroll in substance abuse treatment if indicated by

testing. Unlike Peterson

, the oral Substance Abuse Condition does not

contain a subordinate clause that renders ambiguous an otherwise

mandatory obligation. Rather, insofar as evaluation indicates a need

for treatment, the treatment is mandatory pursuant to the oral

pronouncement; it does not constitute an improper delegation of

judicial authority. The remainder of the written Substance Abuse

Condition is fully consistent with both the oral instructions of the

District Court as a “basic administrative requirement.” 25 It stands and

properly authorizes the Probation Office to supervise and oversee that

treatment.

In light of Matta

, however, we construe this authorization to

exclude the imposition of inpatient treatment. 26 Under Matta, the

25 Rosario

, 386 F.3d at 169.

26 We recognize that certain outpatient treatment programs may be

sufficiently restrictive so as to invoke the “significant liberty interest[s]” that

motivated this Court’s holding in Matta

. See Matta 777 F.3d at 122

‐ 23. We are

assured, however, by 18 U.S.C. § 3583(e)(2) and Rule 32.1(c) of the Federal Rules of

Criminal Procedure, that “in cases of neglect, overwork, or simply

unreasonableness on the part of the probation officer, the probationer should have

recourse to the sentencing court when a condition needs clarification or

modification.” Fed. R. Crim. P. 32.1 advisory committee’s notes (1979). See United

States v. Padilla

, 415 F.3d 211, 223 (1st Cir. 2005) (“We believe that this remedial13 imposition of inpatient treatment must be “supported by

particularized findings that it does not constitute a greater deprivation

of liberty than reasonably necessary to accomplish the goals of

sentencing.” 27 The Court made no such findings here. We also construe

this authorization to apply to the entirety of Young’s term of

supervised release.

b. Mental Health Condition

Unlike the written Substance Abuse Condition, the written

“Mental Health Condition” constitutes an unambiguously lawful, and

indeed advisable, means of delegating supervisory authority to the

Probation Office. The written Mental Health Condition—“If indicated

by the evaluation, the defendant shall participate in mental health

treatment

. . . .” 28 —clearly and unambiguously orders Young’s

participation in mental health treatment. It leaves to the Probation

Office’s discretion only the approval of “details of such treatment,” 29

which is clearly permissible under Peterson

. 30

regime provides adequate means for redress should the probation officer attempt

to ride roughshod.”).

27 Matta

, 777 F.3d at 123 (internal quotation marks and citation omitted).

28 Appellant App’x 32.

29 Id.

30 Peterson

, 248 F.3d at 85 (“If the district court intends that the therapy be

mandatory but leaves a variety of details, including the selection of a therapy

provider and schedule to the probation officer, such a condition of probation may

be imposed.”).14 The oral “Mental Health Condition” is no different; it similarly

mandates treatment for Young if treatment is indicated by a mental

health evaluation. As with the Substance Abuse Condition, we

construe the Mental Health Condition to exclude inpatient treatment,

since such “restrictive” programs must be supported by particularized

findings. 31 We also construe the District Court’s authorization to apply

to the entirety of Young’s term of supervised release. 32

B. Procedural Reasonableness of Young’s Sentence

1. Official Victim Enhancement

Young argues that his sentence is procedurally unreasonable

because the District Court erroneously applied the official victim

31 Matta

, 777 F.3d at 123.

32 The dissent argues that our construction of the authority conferred on the

probation officer by the oral conditions of supervised release is broader than our

precedents permit. Nevertheless, it concedes that such a delegation would

“certainly be defensible,” given the “cumbersome” alternative of “requir[ing] the

Probation Office to return to the court

. . . to modify the conditions of release to

require treatment,” if indicated by testing. See Dissent at 24. While the dissent

would have probation officers seek further judicial approval for post

‐ sentence

treatment, our holding avoids this potentially unnecessary intervention while

permitting defendants to seek judicial review of any overreach. See supra note 26.

Here, in imposing sentence, the District Court—not the probation officer—

mandated that the defendant undergo evaluation and, if necessary, treatment. And

it is the District Court that has the final word upon review. See 18 U.S.C. § 3583(e)(2)

(“The court may

. . . modify, reduce, or enlarge the conditions of supervised release,

at any time prior to the expiration or termination of the term of supervised release

. . . .”). Under either our approach or that of the dissent, “[t]he power to impose

special conditions of supervised release” remains “vested exclusively in the district

court.” Matta

, 777 F.3d at 122.15 enhancement of United States Sentencing Guidelines section

3A1.2(c)(1). Young appears to argue that he did not “assault” law

enforcement officers within the meaning of section 3A1.2(c)(1) because

he did not intend to hit the officers with his car or to cause them fear

and did not realize that the individuals toward whom he drove his

vehicle were police officers.

The official victim enhancement of Guidelines section

3A1.2(c)(1) provides as follows:

If, in a manner creating a substantial risk of

serious bodily injury, the defendant

. . . knowing or having reasonable cause to

believe that a person was a law enforcement

officer, assaulted such officer during the

course of the offense or immediate flight

therefrom

. . . increase by 6 levels. 33

We have already held, in a somewhat different context, that the word

“assault” refers to the common

‐ law offense of assault. 34 “[C]ommon

‐

law assault consisted of either attempted battery or the deliberate

infliction upon another of a reasonable fear of physical injury

. . . .” 35

In applying this Guidelines provision during the sentencing

hearing, the District Court stated as follows:

33 U.S. S ENTENCING G UIDELINES M ANUAL § 3A1.2(c)(1) (emphasis added).

34 See United States v. Delis

, 558 F.3d 177, 180 (2d Cir. 2009).

35 Id.16 Sentencing Guideline 3A1.2(c) indicates that

there should be a six level increase to the

offense level if the defendant acted in a

manner creating a substantial risk of serious

bodily injury knowing or having reasonable

cause to believe that a person was a law

enforcement officer during the course of the

offense or the immediate flight therefrom.

Again, based upon the evidence that the

Court found credible at the hearing, the

Court finds that there was more than

sufficient evidence, clearly more than a

preponderance of the evidence that the

defendant created a substantial risk of

serious bodily injury to the officers who were

attempting to execute the search warrant on

this occasion on him and on his motor vehicle

on December 13th, 2012.

That he created a substantial risk of serious

injury to the officers when he initially

reversed his vehicle at a high speed while the

officers were beside the vehicle, more

importantly, when he drove his vehicle

directly at one of the officers.

The Court finds that the defendant’s

argument that he did not know that the

individuals involved were police officers

. . .

is not credible or logical based upon the

evidence in this case, including evidence that

the two officers were wearing badges around17 their neck as they approached him and yelled

multiple times in loud voices please stop. 36

Therefore, the Court finds the evidence is

really quite overwhelming regarding the

defendant’s action in creating a substantial

risk of serious bodily injury to these officers

and, therefore, the six level increase pursuant

to Guideline Section 3A1.2(c) shall be

applied. 37

We conclude that this record is sufficient to sustain the District

Court’s application of the official victim enhancement. The record

supports the District Court’s finding by a preponderance of the

evidence that Young knew or had reasonable cause to know that the

individuals involved were law enforcement officials. Moreover, the

District Court’s findings adequately support a conclusion that Young

committed an assault by driving his car directly at one of the officers. 38

36 Elsewhere in the record, including the evidentiary hearing upon which

the District Court’s conclusion was based, it appears that the officers stated “Police.

Stop.” Gov’t App’x 69 (hearing transcript); 121 (decision and order of the District

Court).

37 Gov’t App’x 125

‐ 126. On the day following the sentencing hearing, the

District Court entered a “decision and order” repeating substantially the same

reasoning and conclusion regarding the application of Section 3A1.2(c). See Gov’t

App’x 117

‐ 121; Appellant App’x 19 (docket sheet entry).

38 United States v. Washington

, 73 F. App ʹ x 501, 504 (2d Cir. 2003) (citing

analogous cases).18 Accordingly, the District Court did not err by applying section

3A1.2(c) to Young.

2. Section 5K2.23 Downward Departure

Young also argues that his sentence is procedurally

unreasonable because the District Court failed to grant a downward

departure to account for the time he spent in presentence state custody

before his federal conviction. Young’s main theory in support of this

argument is that the District Court improperly failed to apply United

States Guidelines section 5K2.23.

Because Young failed to raise this objection before the District

Court, we review the procedural reasonableness of his sentence for

plain error. 39

Guidelines section 5K2.23 (“Discharged Terms of Imprisonment

(Policy Statement)”) provides in relevant part:

39 See United States v. Parse

, 789 F.3d 83, 119

‐ 20 (2d Cir. 2015) (quoting Johnson

v. United States

, 520 U.S. 461, 466

‐ 67 (1997)) (plain error standard). As a general rule,

“a refusal to downwardly depart is

. . . not appealable.” United States v. Stinson

, 465

F.3d 113, 114 (2d Cir. 2006) (internal quotations and citation omitted). Appellate

review is available, however, “when a sentencing court misapprehended the scope

of its authority to depart or the sentence was otherwise illegal.” United States v.

Valdez

, 426 F.3d 178, 184 (2d Cir. 2005) (citations omitted). Defendant argues that

the District Court was unaware of its authority to depart, and points to the

Presentence Report, which states that there are “no circumstances concerning the

offense or the offender that would warrant a departure from the prescribed

guidelines.” PSR ¶ 111. We thus review for plain error.19 A downward departure may be appropriate

if the defendant (1) has completed serving a

term of imprisonment; and (2) subsection (b)

of § 5G1.3

. . . would have provided an

adjustment had that completed term of

imprisonment been undischarged at the time

of sentencing for the instant offense. 40

We conclude that Young’s sentence is not procedurally

unreasonable, because Young did not qualify for a downward

departure under section 5K2.23. Section 5K2.23 incorporates the terms

of Guidelines section 5G1.3(b). 41 Guidelines section 5G1.3(b), for its

part, can apply only if “a term of imprisonment resulted from another

40 U.S. S ENTENCING G UIDELINES M ANUAL § 5K2.23.

41 Section 5G1.3(b) of the Guidelines provides as follows:

If subsection (a) does not apply, and a term of

imprisonment resulted from another offense that is

relevant conduct to the instant offense of conviction

under the provisions of subsections (a)(1), (a)(2), or

(a)(3) of § 1B1.3 (Relevant Conduct), the sentence for

the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period

of imprisonment already served on the undischarged

term of imprisonment if the court determines that

such period of imprisonment will not be credited to

the federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be

imposed to run concurrently to the remainder of the

undischarged term of imprisonment.20 offense that is relevant conduct to the instant offense of conviction.” 42

Young had been held in custody on related New York state charges,

but he himself concedes that he was never sentenced to prison for the

conduct charged in New York state court. 43 Since Young never

received a “term of imprisonment,” he has not satisfied the second

condition of Guidelines section 5K2.23; therefore, section 5K2.23

cannot have applied to Young’s case. Accordingly, the District Court’s

failure to consider section 5K2.23 when determining Young’s sentence

does not qualify as error, much less plain error. 44

III. CONCLUSION

In summary, we hold that the District Court did not improperly

delegate to the United States Probation Office the decision of whether

Young would be required to undergo treatment. A district court may

mandate, in advance of testing and evaluation, any necessary or

recommended outpatient treatment, and may authorize the Probation

42 U.S. S ENTENCING G UIDELINES M ANUAL § 5G1.3(b).

43 See Appellant Br. 27 (“Subsection (b) does not apply because Young was

not actually assessed a term of imprisonment on his state charges.”).

44 Young also appears to argue that his presentence investigation report

should have included information about the time he had spent in state custody and

that the District Court should have credited him for that time. The record indicates

that the District Court failed to take into account the five and a half months Young

had already spent in state custody. Nevertheless, the U.S. Attorney argues that the

Bureau of Prisons gave Young credit for time served. While Young disputes the

accuracy of the calculation, we agree with the U.S. Attorney that the defendant has

available to him administrative remedies and, if necessary, a petition pursuant to

28 U.S.C. § 2241 to correct any error.21 Office to approve and oversee the details of such treatment. This

authorization lasts for the entirety of the defendant’s term of

supervised release. To mandate inpatient treatment, a district court

must make particularized findings that such a course of treatment

does not constitute a greater deprivation of liberty than reasonably

necessary to accomplish the goals of sentencing. We further hold that

Young’s sentence is not procedurally unreasonable.

We therefore AFFIRM the District Court’s judgment of October

11, 2016.16

‐ 3458

‐ cr

United States v. Young

G ERARD E. L YNCH

, Circuit Judge

, concurring in part and dissenting in 1

part: 2

I fully concur in the Court’s opinion insofar as it holds that 3

Young’s sentence was procedurally reasonable. I respectfully dissent 4

from that portion of the opinion that upholds the challenged 5

conditions of supervised release, because I believe that the conditions, 6

as they appear both in the written judgment and in the oral 7

pronouncement of sentence, are inconsistent with United States v. 8

Peterson

, 248 F.3d 79 (2d Cir. 2001), and United States v. Matta

, 777 F.3d 9

116 (2d Cir. 2015), in which we found that similar conditions 10

improperly delegated the Court’s authority to the Probation Office. I 11

do not disagree with the Court’s explanation of the governing 12

principle. My disagreement is with its characterization of the 13

conditions imposed in this case. 14

The Court construes the oral Substance Abuse Condition as 15

“mandatory” because it “does not contain a subordinate clause that 16

renders ambiguous an otherwise mandatory obligation.” Maj. Op. 12. 17

The condition is indeed “mandatory” in that it uses mandatory 18

language to the defendant (“You must

. . .”). But with respect to 19

treatment, what Young is mandated to do is whatever the Probation 20

Officer (or perhaps someone other than the Probation Officer) decides 21

should be done: “You must submit to drug testing and evaluation and 22

follow any treatment recommendations .” Appellant App’x 65 (emphasis 23

added). Unlike the Court in Matta

, the district court did not decide that 24

drug treatment of any kind was necessary, nor did it require that 25

Young participate in such treatment. The obligation is conditional: 2623 Young must participate in drug treatment only if enrollment in a drug 1

treatment program is “recommend[ed]” by whoever performs the 2

“testing and evaluation.” Id. The condition imposed does not even 3

require Young to obtain treatment if he fails a urine test for an illicit 4

substance; if it did that, it could be argued that the judge had imposed 5

drug treatment whenever a putatively objective test result showed 6

drug use, leaving the Probation Officer in that case with only the 7

ministerial task of arranging for (non

‐ residential) drug treatment. 8

Instead, participation in drug treatment is required only upon a 9

“recommendation,” based on a subjective “evaluation” of whether a 10

positive test result

— presumably along with other evidence relevant 11

to whether the failure was a one

‐ time lapse or indicative of a 12

continuing problem requiring treatment

— indicates to the evaluator 13

(perhaps the Probation Officer, perhaps some independent medical or 14

drug treatment agency subcontracted to perform the “evaluation”) 15

that such treatment is indicated. 1 16

1 Reference to the written judgment confirms this reading of the oral

condition. The written condition, like the oral condition, unambiguously and

without qualification requires drug testing

. But it makes absolutely clear that the

district court requires drug treatment only conditionally, and only at the discretion

of the Probation Office: “ If substance abuse is indicated by testing, the defendant is

to complete a drug/alcohol evaluation [not, “to enter a treatment program”] and enter

into any treatment as deemed necessary by the U.S. Probation Office .” Appellant App’x

32 (emphasis added). The Court is correct, of course, that the oral pronouncement

of sentence controls over any inconsistent provision of the written judgment. But

here, the written judgment seems to me entirely consistent with my reading of the

oral condition (and indeed, I do not read the Court’s opinion as disagreeing with

my reading of what the oral condition actually requires; it simply characterizes the

condition, so interpreted, as “mandatory”).24 The Mental Health Condition is similarly structured. It too (in 1

its oral version) requires Young to “submit to mental health testing, 2

evaluation, and any treatment recommendations.” Id. This condition 3

thus plainly requires mental health treatment (as construed by the 4

majority, limited to outpatient treatment) only if such treatment is 5

recommended by whoever performs the evaluation

. 2 The Mental Health 6

Condition is, if anything, even clearer than the Drug Treatment 7

Condition in delegating the determination of whether such treatment 8

is appropriate not merely to the Probation Officer (who presumably is 9

not a trained or licensed mental health practitioner), but to a 10

psychiatrist, psychologist, or other mental health professional who 11

would be tasked with evaluating the defendant and determining 12

whether he requires treatment. I do not see how this can be construed 13

as a determination by the district court that Young is mandated to 14

submit to mental health treatment as a condition of his release. It 15

requires such treatment only at the discretion of someone other than 16

the judge. 17

I do not suggest that the ruling of the Court impinges in some 18

deeply unacceptable way on the responsibilities of the courts or the 19

rights of defendants. Young is sentenced to 200 months of 20

imprisonment. To require a district court to decide today whether he 21

will require drug or mental health treatment more than 15 years into 22

the future would make little sense. And it is arguably cumbersome 23

(but perhaps not too much so, given the significance of the potential 24

2 With respect to this condition, too, the written version is entirely consistent

in providing treatment only “[i]f indicated by the evaluation.” Id.25 imposition on the defendant) to require the Probation Office to return 1

to the court if it believes, on the basis of mandated drug or mental 2

health testing after his release, to ask the district court to modify the 3

conditions of release to require treatment. So a system that would 4

permit broader delegation to the Probation Office than is permitted by 5

our precedents would certainly be defensible. For good or ill, however, 6

our precedents do not permit such a practice. 7

Because the conditions imposed here can only be read as 8

subjecting the defendant to drug and mental health treatment if the 9

Probation Office (or some other professional) determines that such 10

treatment is necessary, I respectfully dissent. 11