IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50154

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EMMANUEL EMIL BAILEY, also known as Emmanuel Bailey, also known as 

Jermaine Jamal Lyons, also known as Mobban, also known as Young Mobban,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:15-CR-148-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Emmanuel Emil Bailey pleaded guilty to transportation of an individual 

in interstate commerce with the intent that such individual engage in 

prostitution or sexual activity in violation of 18 U.S.C. § 2421. The district 

court sentenced Bailey to 84 months of imprisonment, three years of 

supervised release, and a $1,000 fine. On appeal, Bailey challenges four of the 

 

* 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

August 24, 2017

Lyle W. Cayce

Clerk

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No. 16-50154

2

standard conditions of supervised release included in the written judgment but 

not orally pronounced at sentencing as impermissible delegations of judicial 

authority to the probation officer.

Because Bailey did not have an opportunity to object to the challenged 

standard conditions of supervised release at sentencing, this court’s review of 

those conditions is for abuse of discretion. United States v. Rouland, 726 F.3d 

728, 735 (5th Cir. 2013). The imposition of supervised release conditions and 

terms “is a core judicial function that cannot be delegated.” United States v. 

Franklin, 838 F.3d 564, 568 (5th Cir. 2016) (internal quotation marks and 

citations omitted). Bailey argues that the district court erred by imposing 

standard conditions of supervised release requiring him to participate in 

programs for substance abuse treatment, mental health treatment, cognitive 

behavioral treatment, and workforce development “if deemed necessary by the 

probation officer.” We have held that such language “creates an ambiguity 

regarding whether the district court intended to delegate authority not only to 

implement treatment but to decide whether treatment was needed.” Id. 

(internal quotation marks and citation omitted).

Bailey also asserts that the district court impermissibly delegated its 

judicial authority to the probation officer to ascertain whether he should pay 

the costs of his participation in the substance abuse treatment, mental health 

treatment, cognitive behavioral treatment, and workforce development

programs and, if so, the amount he should pay. This argument is 

unpersuasive. In United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 

2002), we held that the imposition of special conditions relating to a 

determination of a defendant’s ability to pay the costs of drug treatment and 

other programs does not constitute an unlawful delegation of authority to the 

probation officer.

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Accordingly, we VACATE the substance abuse treatment, mental health 

treatment, cognitive behavioral treatment, and workforce development

conditions and REMAND to the district court for resentencing, with the same 

clarifying instruction offered in Franklin:

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. If, on the other hand, 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 

constitute an impermissible delegation of judicial authority and 

should not be included.

Franklin, 838 F.3d at 568 (citation omitted).

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