# United States Court **of Appeals**  **f or 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 ple a d ed 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 Case: 21-50459 Document: 00516295907 Page: 1 Date Filed: 04/26/2022No. 21

- 50459

2 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 vi sited 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 b ecause h e 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 di strict 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 cou rt 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 th at 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. Case: 21-50459 Document: 00516295907 Page: 2 Date Filed: 04/26/2022No. 21

- 50459

3 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. Barbe r , 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 a nd 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 probatio n 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. Medel

Guadalup e  ̧987 F.3d 424, 431 (5th Cir. 2021)). Second, a district court cannot lea ve 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 risk

notification condition, the probation officer does not unilaterally decide whether the defendant is subject to the condition. Rather, the risk

notification 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 Case: 21-50459 Document: 00516295907 Page: 3 Date Filed: 04/26/2022No. 21

- 50459

4 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

- notificat ion 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 Gui delines specifically recommend the risk

notification 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 w hich was first included in the Sentencing Guidelines in 1987. 1 **U**

**. S** 

**. S**  **ent’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. T hus, t he district court did not err, much less plainly so, by imposing the risk

- notification conditio n. 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 re commended risk

notification 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 risk

notification condition as vague); United States v. Hill , 818 F.3de 342, 345 (7th Cir. 2016) Case: 21-50459 Document: 00516295907 Page: 4 Date Filed: 04/26/2022No. 21

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5 This appeal is one of a series of cases that have rais ed the same challenge to the risk

- notification condition . All aris e out of the Western District of Texas, and all submit virtually identical briefing. 3 The surge of cases from a single district is troubling . T he Office of the Federal Public Defender, wh ich represents every defendant in this slew of cases, did not object

— not even once

— in the district court to a ny of the now

- challenged
sentence s imposing the risk

- notification condition. This amounts to a deliberate bypass of the distric t courts, which should have been alerted to the issue in the regular course of sentencing proceedings. D istrict 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 risk

notification condition and remanding for clarific ation)

.
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. Lopez

Mendoza , 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. 2 021); 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). Case: 21-50459 Document: 00516295907 Page: 5 Date Filed: 04/26/2022No. 21

- 50459

6 conditions from an administrative as well as case

- specific and legal perspective

. **AFFIRMED**

. Case: 21-50459 Document: 00516295907 Page: 6 Date Filed: 04/26/2022No. 21

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7 **King** , Circuit Judge , concurring in the judgment:
I agree with the majority that the district court did not commit plain

error in impos ing a risk

- notification condition in this case

. I therefore concur in the judgment.
W hen considering a risk

- notification condition identical to the one at issue here , we recently held that since “ we have not yet addressed [the merits of]

. . . whether the instant notification condition constitutes an improper del egation 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) (quotin g United States v. Johnson , 777 F. App’x 754, 754 (5th Cir. 2019)). Th at is also true here, and imposition of the selfsame condition is still not plain error

. T he 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

- n otification condition is an invalid delegation of judicial power. I respectfully concur in the judgment. Case: 21-50459 Document: 00516295907 Page: 7 Date Filed: 04/26/2022