[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 11365
Non

- Argument Calendar

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UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus DAVID SHANE PAQUETTE, a.k.a. David Shane Watson, a.k.a. Phillip Connell,

Defendant

- Appellant. USCA11 Case: 21-11365 Date Filed: 08/18/2022 Page: 1 of 42 Opinion of the Court 21

- 11365

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19

- cr

- 00264

- WFJ

- TGW

- 1

_________________ ___ Before WILLIAM PRYOR , Chief Judge, JORDAN and NEWSOM , Circuit Judges.
PER CURIAM: David Paquette appeals the judgment in his criminal case that imposed a special condition limiting contact with minors as a term of his sentence for f ailing to register as a sex offender. 18 U.S.C. § 2250(a)

. Paquette challenged his sentence to supervised release on three grounds, two of which we previously concluded a re barred by the appeal waiver in his written plea agreement. In his remaining ground for relief , Paquette argues , for the first time, that a special condition of his supervised release that leaves to “the discretion of the probation office . . . [ whether he] may be required to have no direct contact with minors (under the age of 18) without the writ ten approval of the probation officer” constituted a n improper delegation of judicial authority. As t he government concedes
, the district court plainly erred in delegating the implementation of a condition of supervised release to a probation office r

. S

ee United States v. Nash
, 438 F.3d 1302, 130 6 (11th Cir. 2006)

. W e vacate th e special condition and remand for further proceedings. USCA11 Case: 21-11365 Date Filed: 08/18/2022 Page: 2 of 421

- 11365 Opinion of the Court 3 Because Paquette challenges the condition of his supervised release for the first time on appeal, our r eview is for plain error

. See id. at 1304. To constitute p lain error , t he district court m ust have made an error that was plain and that affects Paquette ’s substantial rights. Id. When plain error occur s , we may reverse if it seriously affects the fairness, integrity, or public r eputation of judicial proceedings. Id.
To determine whether the district court improperly delegated its sentencing authority, we draw a distin ction between the delegation “ of a ministerial act or support service” and “the ultimate responsibility” of imposing the sentence. Id. at 1304

– 05. The d istrict court may not delegate the ultimate responsibility of deciding whether to impose a condition of supervised release

. Id. at 1305. Bu t the district court may delegate the ministerial func tion of how, when, and where the defendant must comply with the condition

. Id.

In Nash , we concluded that the district court plainly erred by delegat ing a judicial function to a probation officer. The district

court impos ed as a condition of supervised rel ease that, “ [a] s deemed necessary by the Probation Officer, the defendant shallparticipate in mental health counseling, which may include inpatient treatment.” Id. at 1304. We conclud ed that condition was an improper delegation of authority because the pr obation officer instead of the district court decided whether Nash was required to participate in mental health counseling. Id. at 1306. USCA11 Case: 21-11365 Date Filed: 08/18/2022 Page: 3 of 44 Opinion of the Court 21

- 11365

As in Nash , t he district court plainly erred in Paquette’s case

. The district court erred by delegat ing to Paquette’s probation officer ultimate authority to determine whether Paquette c ould have direct contact with minors

. See id. Because the decision whether to impose a special condition of supervised release is a j udicial function, the error was plain. See id. T he error affected Paquette’s substantial rights because , without the error, the district court, rather than the probation officer, would have decided the extent of Paquette’s interaction with minors

. See Unit ed States v. Heath , 419 F.3d 1312, 131 4

– 1 6 (11th Cir. 2005). And the improper delegation of a judicial function is an error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1316. W e vacate th e special con dition of supervised release and remand for the district court to de cid e whether to impose the special condition

. VACATED and REMANDED. USCA11 Case: 21-11365 Date Filed: 08/18/2022 Page: 4 of 4