IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20172

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

LISA DENISE BISHOP,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Lisa Denise Bishop appeals the imposition of a special condition on her

supervised release. For the following reasons, we affirm.

I

Bishop pled guilty to aggravated identity theft and fraud in connection

with access devices and was sentenced to serve 48 months in prison and three

years of supervised release. As a special condition of her supervised release,

Bishop was ordered to “participate in a mental health program as deemed

necessary and approved by the probation officer.” Bishop appeals, arguing that

the district court judge unlawfully and unconstitutionally delegated her

United States Court of Appeals

Fifth Circuit

F I L E D

April 7, 2010

Lyle W. Cayce

Clerk

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No. 09-20172

United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003). 1

United States v. Rojas-Gutierrez, 510 F.3d 545, 548 (5th Cir. 2007). 2

Id.

3

 See Johnson v. United States, 520 U.S. 461, 467 (1997) (“[A] new rule for the conduct 4

of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct

review . . . with no exception for cases in which the new rule constitutes a ‘clear break’ with

the past.”) (internal quotations and citation omitted).

United States v. Olano, 507 U.S. 725, 734 (1993). 5

See, e.g., United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (finding that 6

delegating to the probation office the authority to decide whether a defendant will participate

in a treatment program is a violation of Article III); see also United States v. Peterson, 248 F.3d

2

statutory and Article III authority to determine sentencing conditions to a nonjudicial officer.

II

Because Bishop did not object at sentencing, this court reviews for plain

error only. Under the plain error standard of review, reversal is not required 1

unless there is (1) an error; (2) that is clear or obvious; and (3) that affects the

defendant’s substantial rights. Even then, we retain discretion whether to 2

correct the error, and will do so only if it “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.”3

III

We determine whether an alleged error is plain by reference to existing

law at the time of appeal. An error is not plain “unless the error is clear under 4

current law.” There are no published decisions in this Circuit that address the 5

statutory and constitutional limits on a district court’s authority to delegate to

a probation officer the determination of whether and to what extent a convicted

defendant on supervised release must participate in counseling. Although other

circuit courts have found improper delegation in analogous circumstances on de

novo review, the question remains an open one in the Fifth Circuit, and Bishop 6

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No. 09-20172

79, 85 (2d Cir. 2001) (“If [the defendant] is required to participate in a mental health

intervention only if directed to do so by his probation officer, then this special condition

constitutes an impermissible delegation of judicial authority to the probation officer.”); United

States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005) (expressing agreement with Peterson);

United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002) (same); United States v. Sines, 303

F.3d 793, 799 (7th Cir. 2002) (“[A] district court ... must itself impose the actual condition

requiring participation in a sex offender treatment program.”); United States v. Kent, 209 F.3d

1073, 1079 (8th Cir. 2000) (finding “that the lower court improperly delegated a judicial

function to [the defendant’s] probation officer when it allowed the officer to determine whether

[the defendant] would undergo counseling”).

United States v. Castro, 166 F.3d 728, 732 (5th Cir. 1999); see also United States v.

7

Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (finding any error could not be plain or obvious

when the Fifth Circuit had not previously addressed the issue before the court).

See, e.g., United States v. De Los Santos, 332 F. App’x 993 (5th Cir. 2009) (holding that

8

it was not plain error to delegate whether and to what extent the defendant should participate

in counseling); United States v. Davis, 306 F. App’x 851 (5th Cir. 2009); United States v.

Grubert, 339 F. App’x 406 (5th Cir. 2009); United States v. Mungia, 297 F. App’x 314 (5th Cir.

2008); United States v. Acevedo, 157 F. App’x 713 (5th Cir. 2005).

 32 F.3d 173 (5th Cir. 1994). 9

3

has failed to show that the district court’s error, if any, was plain. Indeed, in 7

a series of recent unpublished opinions, this circuit has consistently held that

such judicial delegations of authority regarding counseling do not rise to the

level of plain error.8

Bishop relies primarily upon our decision in United States v. Albro to

support her position that the district court judge plainly erred by delegating her

authority to determine special conditions of release to a probation officer. In 9

that case, the defendant was convicted of bank fraud and ordered to pay

restitution. Although the district judge determined the amount to be paid, he

delegated the “manner of payment” to a probation officer. This court agreed with

the convicted defendant that “‘the amounts to be paid and the manner of

payment should be recited in the [sentencing] order, rather than

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Id. at 174 (quoting United States v. Mancuso, 444 F.2d 691, 695 (5th Cir. 1971)).

10

Id. at 174-75.

11

 291 F.3d 363, 366 (5th Cir. 2002). 12

Id. at 365-66. 13

 332 F.3d 849, 852 n.3 (5th Cir. 2003). 14

4

delegat[ed] . . . to the probation officer.’” The court found plain error and 10

reversed.11

Bishop concedes, however, that this court has since distinguished Albro in

cases addressing drug treatment. In United States v. Warden, for example, this

court held that it was not plain error to allow a probation officer to determine a

defendant’s ability to pay for drug treatment. This court noted that Albro 12

concerned “restitution payments,” not the costs of drug treatment. Likewise, 13

in United States v. Vega, we noted that any error by the district court in

delegating authority to a probation officer to determine the length of a

defendant's drug treatment was not plain or obvious because “we have not

previously addressed this issue.”14

Our precedents do not plainly require the result Bishop urges.

* * *

Accordingly, for the reasons discussed above, we AFFIRM the district

court’s judgment.

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