IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40642

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARUICE TURPIN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-59-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Maurice Turpin pleaded guilty to transporting an unlawful alien and was

sentenced to 57 months of imprisonment, to be followed by three years of

supervised release. As a special condition of supervised release, the district

court, in its written judgment, ordered Turpin to participate in mental health

and anger management programs “as deemed necessary and approved by the

probation officer.” When imposing sentence orally, the district court merely

stated that Turpin would be subject to conditions of supervision including “anger

United States Court of Appeals

Fifth Circuit

F I L E D

August 25, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-40642

management” and “mental health,” and said nothing about the probation

officer’s role.

Turpin contends on appeal that the district court impermissibly delegated

its judicial authority and committed plain error by requiring participation in the

mental health and anger management programs “as deemed necessary and

approved by the probation officer.” There is currently a circuit split on this

issue. The Third, Fourth, and Eleventh Circuits have held that imposing a

sentence, including conditions of probation, is a strictly judicial function that

may not be delegated. United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005);

United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995) (“[T]he imposition of

a sentence, including any terms for probation or supervised release, is a core

judicial function”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005)

(“[D]elegating to the probation office the authority to decide whether a defendant

will participate in a treatment program is a violation of Article III.”).

However, the Eight and Ninth Circuits have held that, as long as a judicial

officer retains ultimate authority and responsibility for approving conditions of

probation, limited authority regarding the details of supervised release may be

delegated to probation officers. United States v. Mickelson, 433 F.3d 1050, 1057

(8th Cir. 2006); United States v. Bowman, 175 F. App’x. 834, 838 (9th Cir. 2006)

(unpublished) (finding that delegating limited authority to probation officer to

recommend whether or not defendant should have unsupervised visits was

permissible, because “if the probation officer arbitrarily or unfairly denies

[defendant] a favorable recommendation, [defendant] is free to seek relief from

the district court . . . .”). The Sixth Circuit has held that, although “fixing the

terms and conditions of probation is a judicial act which may not be

delegated,”delegating such things as the schedule of restitution payments is

permissible. Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir. 2001)

(quoting Whitehead v. United States, 155 F.2d 460, 462 (6th Cir. 1946)). The

Fifth Circuit has not yet decided whether it is permissible for a court to delegate

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No. 09-40642

to a probation officer the determination of whether mental health treatment will

be required as part of supervised release.

However, we need not reach the delegation issue in Turpin’s appeal,

because Turpin also argues that the case should be remanded for clarification.

Turpin contends that the district court’s intent as to the probation officer’s role

is unclear, and we agree. See, e.g., United States v. Lopez-Muxtay, 344 F. App’x

964, 965-66 (5th Cir. 2009) (unpublished) (vacating and remanding for

resentencing when the written judgment and oral sentencing conflicted). As in

Lopez-Muxtay, the written judgment is unclear regarding “whether the district

court intended to grant [the appellant]’s probation officer the authority not only

to implement the condition but to determine whether [the appellant] should or

should not undergo mental health treatment while on supervised release.” Id.

at 965. Accordingly, this case is REMANDED for proceedings consistent with

this opinion.

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