IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40999

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

THOMAS CLIFFORD LOVETTE, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 2:15-CR-951-1 

Before KING, ELROD, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Thomas Clifford Lovette pleaded guilty to one count of making false 

statements on a matter within the jurisdiction of an agency of the United 

States in violation of 18 U.S.C. § 1001. After serving his prison term and while 

on supervised release, the probation office filed a warrant petition, alleging 

that Lovette violated the terms of his supervised release. Lovette pleaded true 

to the allegations and was sentenced to six months of imprisonment and 30 

 

* 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

Fif h Circuit

FILED

October 26, 2017

Lyle W. Cayce

Clerk

 Case: 16-40999 Document: 00514212404 Page: 1 Date Filed: 10/26/2017
No. 16-40999

2

months of supervised release. In its oral pronouncement of Lovette’s sentence, 

the district court ordered Lovette “to participate in a mental health treatment 

program.” Lovette did not object. The written judgment provided that Lovette 

“is required to participate in a mental health program as deemed necessary and 

approved by the probation officer.” (emphasis added).

In this court, Lovette does not challenge the order to participate in a 

mental health treatment program. He challenges the condition of supervised 

release only as an impermissible delegation to the probation officer of the 

district court’s responsibility to determine whether he must participate in 

mental health treatment. Because Lovette did not have an opportunity to 

object at sentencing to the part of the condition of supervised release that 

mentioned the probation officer’s role, our review is for an abuse of discretion. 

See United States v. Franklin, 838 F.3d 564, 566-67 (5th Cir. 2016).

The imposition of supervised release conditions and terms “is a core 

judicial function that cannot be delegated.” Franklin, 838 F.3d at 568 (internal 

quotation marks and citations omitted). A district court may delegate details 

of a treatment-related condition to a probation officer, but it may not give “a 

probation officer authority to decide whether a defendant will participate in a 

treatment program.” Id. (internal quotation marks and citations omitted; 

emphasis in original). In Franklin, we vacated a mental health treatment 

condition materially identical to the condition set forth in the written judgment 

here. Id. at 567-68. We held that the wording of the challenged condition 

“create[d] an ambiguity regarding whether the district court intended to 

delegate authority not only to implement treatment but to decide whether 

treatment was needed.” Id. at 568. There is a similar ambiguity in this case 

as to whether or not the district court sought to delegate authority to the 

probation officer “to decide whether treatment [is] needed.” Id.

 Case: 16-40999 Document: 00514212404 Page: 2 Date Filed: 10/26/2017
No. 16-40999

3

Because the record makes clear that mental health treatment is 

warranted, and the only issue is whether the district court intended to give 

discretion to the probation officer as to the necessity for treatment, we 

VACATE the mental health program special condition and REMAND to the 

district court for resentencing with the same clarifying instruction we 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.

838 F.3d at 568 (internal quotation marks and citation omitted).

 Case: 16-40999 Document: 00514212404 Page: 3 Date Filed: 10/26/2017