United States Court of Appeals

for the Fifth Circuit

No. 21-50459

United States of America, 

Plaintiff—Appellee,

versus

Jairo Armando Mejia-Banegas, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:21-CR-89-1

Before King, Jones, and Duncan, Circuit Judges.

Per Curiam:

Jairo Armando Mejia-Banegas pleaded guilty to illegal reentry in 

violation of 8 U.S.C. § 1326. The district court sentenced him to 20 months 

of imprisonment and one year of supervised release. The district court 

imposed the mandatory and standard conditions of supervised release 

contained in the standing order promulgated by the judges of the Western 

District of Texas. Included in those conditions is standard condition 12, 

which provides:

If the probation officer determines that the defendant poses a 

risk to another person (including an organization), the 

United States Court of Appeals

Fifth Circuit

FILED

April 26, 2022

Lyle W. Cayce

Clerk

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probation officer may require the defendant to notify the 

person about the risk and the defendant shall comply with that 

instruction. The probation officer may contact the person and 

confirm that the defendant has notified the person about the 

risk.

United States District Court for the Western District of Texas, Conditions 

of Probation and Supervised Release, https://bit.ly/3ouyWtb (last visited 

April 6, 2021). The Appellant contends this condition represents an 

improper delegation of authority to the probation officers. We disagree, and 

AFFIRM.

Because Mejia-Banegas did not object to the imposition of standard

condition 12, and because he had notice of the condition and the opportunity 

to object in the district court, we review for plain error. See United States v.

Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc), cert. denied, 141 S. Ct. 

825 (2020).

Mejia-Banegas argues that the district court plainly erred by imposing 

this risk-notification condition because it improperly delegates to the 

probation officer the authority to require him to notify people of any risk that 

he may pose to them. He contends that although the district court may 

delegate the details of a supervised release condition to the probation officer, 

the district court may not delegate the authority to impose the condition 

itself.

To show plain error, Mejia-Banegas “must show that (1) the district 

court erred; (2) the error was clear and obvious; and (3) the error affected 

his substantial rights.” United States v. Vargas ̧21 F.4th 332, 334 (5th Cir. 

2021) (citing Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 

(2009)). This court recently held that imposing the same risk-notification 

condition does not amount to plain error because any potential error is not 

clear or obvious. United States v. Henderson, 29 F.4th 273, 276 (5th Cir. 

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2022). We conclude that the district court committed no error, plain or 

otherwise, by imposing the risk-notification condition. Cf. United States v. 

Avalos-Sanchez, 975 F.3d 426 (5th Cir. 2020) (reviewing district court order 

for plain error and concluding that district court did not err at all).

In general, “[p]robation officers have power ‘to manage aspects of 

sentences and to supervise probationers and persons on supervised release 

with respect to all conditions imposed by the court.’” United States v. 

Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting United States v. Franklin, 

838 F.3d 564, 567 (5th Cir. 2016)). Nevertheless, “a district court cannot 

delegate to a probation officer the ‘core judicial function’ of imposing a 

sentence, ‘including the terms and conditions of supervised release.’” Id.

(quoting Franklin, 838 F.3d at 568). In United States v. Huerta, 994 F.3d 711 

(5th Cir. 2021), this court demarcated “the dividing line between”

permissible and impermissible delegations of authority to probation officers

by distilling two guiding principles. Id. at 716. First, a district court cannot 

surrender “‘the final say’ on whether to impose” a condition of supervised 

release to a probation officer. Id. at 716-17 (quoting United States v. MedelGuadalupe ̧987 F.3d 424, 431 (5th Cir. 2021)). Second, a district court 

cannot leave to the probation officer details of a condition involving “a 

significant deprivation of liberty.” Id. at 717 (citing Medel-Guadalupe, 

987 F.3d at 431 and United States v. Martinez, 987 F.3d 432, 434, 436 (5th 

Cir. 2021)).

The risk-notification condition does not impermissibly delegate the 

court’s judicial authority to the probation officer. Under the risknotification condition, the probation officer does not unilaterally decide 

whether the defendant is subject to the condition. Rather, the risknotification condition only allows the probation officer to direct when, 

where, and to whom the defendant must give notice. United States v. Nash, 

438 F.3d 1302, 1306 (11th Cir. 2006) (per curiam) (rejecting delegation 

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challenge to prior version of risk-notification condition); United States v. 

Porter, 842 F. App’x 547, 548 (11th Cir. 2021) (per curiam) (similarly 

rejecting delegation challenge to current version of risk-notification 

condition). That limited scope of authority neither leaves to the probation 

officer the “final say” on whether to impose a condition of supervised 

release nor implicates a significant deprivation of liberty. Moreover, the 

United States Sentencing Guidelines specifically recommend the risknotification condition as a term of supervised release. 

U.S.S.G. § 5D1.3(c)(12). Indeed, for nearly thirty years, no circuit court 

decision challenged the validity of the risk-notification condition, a version 

of which was first included in the Sentencing Guidelines in 1987.1

 U.S.

Sent’g Guidelines Manual§ 5B1.4(a)(13) (U.S. Sent’g 

Comm’n 1987). Finally, if, in practice, an overzealous probation officer 

used the risk-notification condition in a fashion that deprived a probationer 

of liberty, that person could seek relief under Federal Rule of Criminal 

Procedure 32.1. Thus, the district court did not err, much less plainly so, by 

imposing the risk-notification condition. Cf. Nash, 438 F.3d at 1306; United 

States v. Gibson, 998 F.3d 415, 423 (9th Cir. 2021) (holding that the current 

risk-notification condition “is constitutional and may be imposed in 

appropriate cases.”).2

1 The United States Sentencing Commission amended the recommended risknotification condition in 2016. U.S. Sent’g Comm’n, Amendments to the 

Sentencing Guidelines 49 (April 28, 2016), https://www.ussc.gov/sites/

default/files/pdf/amendment-process/reader-friendly-amendments/20160428_RF.pdf

(last visited April 14, 2022).

2 But see United States v. Boles, 914 F.3d 95, 111-12 (2d Cir. 2019) (vacating sentence 

imposing current risk-notification condition and remanding to district court to clarify 

scope); United States v. Cabral, 926 F.3d 687, 697-98 (10th Cir. 2019) (rejecting current 

risk-notification condition because it improperly delegates power to a probation officer); 

United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir. 2018) (rejecting prior risknotification condition as vague); United States v. Hill, 818 F.3de 342, 345 (7th Cir. 2016) 

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This appeal is one of a series of cases that have raised the same 

challenge to the risk-notification condition. All arise out of the Western 

District of Texas, and all submit virtually identical briefing.3

 The surge of 

cases from a single district is troubling. The Office of the Federal Public 

Defender, which represents every defendant in this slew of cases, did not 

object—not even once—in the district court to any of the now-challenged 

sentences imposing the risk-notification condition. This amounts to a 

deliberate bypass of the district courts, which should have been alerted to 

the issue in the regular course of sentencing proceedings. District court 

judges are well acquainted with the realities of probation that this 

recommended condition invokes, and having been apprised of the issue, 

could have added valuable insights to this court’s appellate work. Further, 

on the off chance that this or similar conditions, which have been in effect 

for decades, have suddenly become suspect, the district judges are 

responsible for maintaining local rules and should have the initial 

opportunity to consider the synergy among various supervised release 

(holding that prior risk-notification condition is “[h]opelessly vague”); United States v. 

Kappes, 782 F.3d 828, 849 (7th Cir. 2015) (vacating sentence imposing prior risknotification condition and remanding for clarification).

3 See, e.g., United States v. Marquez-Munoz, No. 21-51136 (5th Cir. 2021); United 

States v. Almejo-Gradilla, No. 21-51132 (5th Cir. 2021); United States v. Amador-Guardado, 

No. 21-51117 (5th Cir. 2021); United States v. Lopez-Mendoza, No. 21-51115 (5th Cir. 2021); 

United States v. Almejo-Gradilla, No. 21-51106 (5th Cir. 2021); United States v. LopezMendoza, No. 21-51094 (5th Cir. 2021); United States v. Amador-Guardado, No. 21-51092 

(5th Cir. 2021); United States v. Lozano, No. 21-51076 (5th Cir. 2021); United States v. 

Nickerson, No. 21-51032 (5th Cir. 2021); United States v. Zahner, No. 21-51009 (5th Cir. 

2021); United States v. Manriquez-Nunez, No. 21-50968 (5th Cir. 2021); United Sates v. 

Marmolejo, No. 21-50946 (5th Cir. 2021); United States v. Alvarado-Arrendondo, No. 21-

50555 (5th Cir. 2021); United States v. Alvarado-Arrendondo, No. 21-50549 (5th Cir. 2021); 

United States v. Chavira-Montanez, No. 21-50404 (5th Cir. 2021).

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conditions from an administrative as well as case-specific and legal 

perspective.

AFFIRMED.

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King, Circuit Judge, concurring in the judgment:

I agree with the majority that the district court did not commit plain 

error in imposing a risk-notification condition in this case. I therefore concur 

in the judgment. 

When considering a risk-notification condition identical to the one at 

issue here, we recently held thatsince “we have not yet addressed [the merits 

of] . . . whether the instant notification condition constitutes an improper 

delegation of judicial authority,’ the district court’s error, if any, was neither 

clear nor obvious” and therefore the district court could not have plainly 

erred. United States v. Henderson, 29 F.4th 273, 276 (5th Cir. 2022) 

(alteration in original) (quoting United States v. Johnson, 777 F. App’x 754, 

754 (5th Cir. 2019)). That is also true here, and imposition of the selfsame 

condition is still not plain error.

The court thus does not need to reach the merits question to decide 

this case. And in light of the reasoned disagreement on its proper answer, 

which has already split the circuits, see ante, at 4 & n.2, I would wait for 

another day (and a different vessel that presents the issue on de novo review) 

before deciding whether the risk-notification condition is an invalid 

delegation of judicial power. 

I respectfully concur in the judgment. 

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