United States Court of Appeals

for the Fifth Circuit

No. 20-10866

United States of America, 

Plaintiff—Appellee,

versus

Andres Aguilar-Cerda, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:19-CR-289-S-1

Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit 

Judges.

Patrick E. Higginbotham, Circuit Judge:

Aguilar-Cerda’s counsel submitted a merits brief after this Court 

previously concluded that counsel did not address a nonfrivolous issue 

related to a condition of supervised release in counsel’s Anders brief. Because

we now conclude there is no nonfrivolous issue for appeal, we affirm the 

district court’s judgment and grant counsel’s motion to withdraw which was 

carried with the case.

United States Court of Appeals

Fifth Circuit

FILED

March 10, 2022

Lyle W. Cayce

Clerk

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I.

Andres Aguilar-Cerda pleaded guilty to possession with intent to 

distribute a mixture or substance containing a detectable amount of 

methamphetamine.1 He was sentenced within the advisory guidelines range 

to 45 months’ imprisonment and three years of supervised release. During 

the sentencing hearing, the district court stated that “the Defendant shall 

participate in a program, in or outpatient, approved by the U.S. Probation 

Office for treatment of narcotic, drug, or alcohol dependency, which will 

include testing for the detection of substance use or abuse.” Aguilar-Cerda 

did not object to this condition. 

This special condition of supervised release is the subject of this 

appeal. The Federal Public Defender appointed to represent Aguilar-Cerda 

moved to withdraw pursuant to Anders v. California2 and United States v. 

Flores.

3 This Court carried counsel’s motion to withdraw with the case and

ordered counsel to file either a supplemental Anders brief or a brief on the 

merits addressing (1) whether the district court erred by delegating the 

authority to require in-patient drug treatment as a condition of supervised 

release to the probation officer and (2) whether the district court erred by 

failing to specify the standard and mandatory conditions of supervised release 

during the sentencing hearing. As to the second issue, both parties agree that 

the district court did not plainly err when it referred to its previous written 

standing order and ordered that “Defendant shall comply with the standard 

conditions contained in this judgment” without reciting those conditions

during the sentencing hearing. We agree and need not address the issue 

1 See 21 U.S.C. §§ 841(a)(1), (b)(1)(C).

2

386 U.S. 738 (1967).

3 632 F.3d 229 (5th Cir. 2011). 

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further.4 Accordingly, this appeal will focus on the former issue of delegating 

the inpatient or outpatient substance abuse treatment determination to a 

probation officer.

II.

Because Aguilar-Cerda failed to object to the condition of supervised 

release, this Court reviews Aguilar-Cerda’s challenge of this condition for 

plain error.5 Under this standard, Aguilar-Cerda must show “(1) an error (2) 

that is clear or obvious, (3) that affects substantial rights, and (4) that 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.”6

III.

Aguilar-Cerda argues that the district court plainly erred when it 

delegated to a probation officer the determination of whether he must 

participate in an in-patient or outpatient substance abuse treatment program.

We disagree. 

Two cases related to this issue, which were decided the same day, 

seem to conflict at first glance. In Martinez, we vacated the district court’s 

condition of supervised release requiring Martinez to “participate in an 

inpatient or outpatient substance-abuse treatment program” because it 

4 See United States v. Diggles, 957 F.3d 551, 561 (5th Cir. 2020) (“A standing order 

provides advance notice of possible conditions just as a PSR recommendation does. And 

the in-court adoption of those conditions is when the defendant can object.”).

5 United States v. Huerta, 994 F.3d 711, 716 (5th Cir. 2021) (hereinafter Yurika 

Huerta); see also United States v. Huerta, No. 19-41018, 2022 U.S. App. LEXIS 392, at *2 

(5th Cir. Jan. 6, 2022) (unpublished).

6 Yurika Huerta, 994 F.3d at 716 (internal citations and quotations removed). 

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improperly delegated “the judicial decision to significantly restrict 

Martinez’s liberty during treatment” to a probation officer.7 

In Medel-Guadalupe, however, we held that the district court did not 

err when it delegated the decision of whether a substance abuse treatment 

program would be inpatient or outpatient to a probation officer.8 We 

explained that “the key inquiry is whether the condition is mandatory or left 

to the discretion of the probation officer.”9 We determined that the district 

court expressly required Medel-Guadalupe to participate in a treatment 

program, and the inpatient versus outpatient distinction as well as the 

“modality, intensity, duration” of the treatment were “details of the 

conditions” which could be delegated to a probation officer.10

We then clarified these two decisions in Yurika Huerta: 

Read together, Martinez and Medel-Guadalupe establish two 

principles regarding delegation to probation officers. First, 

the district court will have the final say on whether to impose 

a condition . . . . Second, although a probation officer’s 

authority extends to the modality, intensity, and duration of 

a treatment condition, it ends when the condition involves a 

significant deprivation of liberty.11 

Importantly, we are reviewing Aguilar-Cerda’s challenge under plain error. 

This distinguishes this case from Martinez, in which we reviewed the 

challenge under the more generous abuse of discretion standard, because, 

7 United States v. Martinez, 987 F.3d 432, 433 (5th Cir. 2021).

8 United States v. Medel-Guadalupe, 987 F.3d 424, 430–31 (5th Cir. 2021) (published 

per curiam).

9

Id. at 430.

10 Id. 

11 Yurika Huerta, 994 F.3d at 716–17 (internal citations and quotations removed).

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unlike Aguilar-Cerda, Martinez did not have an opportunity to object to the 

district court’s delegation of the inpatient or outpatient decision to a 

probation officer at his hearing.12 Here, Aguilar-Cerda cannot carry his 

burden to show that the district court’s error is clear or obvious and seriously 

affects the fairness, integrity, or public reputation of judicial proceedings.

First, Aguilar-Cerda cannot show a clear or obvious error. Here, as in 

Medel-Guadalupe, the district court clearly required that Aguilar-Cerda 

“shall participate in a [drug treatment] program.” In other words, the 

probation officer did not have the authority to impose a mandatory condition 

of supervised release; the district court merely delegated the “details of the 

conditions” to the probation officer.13

Additionally, Aguilar-Cerda’s 45-month sentence falls in between the 

10 months sentence in Martinez and the 120-month sentence in MedelGuadalupe.

14 In Medel-Guadalupe, we reasoned that the district court’s 

delegation of the inpatient or outpatient designation to the probation officer 

made practical sense; because of the long sentence imposed, the district court 

was not in a position to “predict what the need for substance abuse treatment 

during supervised release will be.”15 On the other hand, in Martinez the 

district court was in a better position to determine whether inpatient or 

outpatient treatment was required only 10 months later. And, because of the 

already short sentence, allowing a probation officer to further hold the 

12 Martinez, 987 F.3d at 434–35. 

13 Medel-Guadalupe, 987 F.3d at 430. 

14 Id. at 427; Martinez, 987 F.3d at 434.

15 Medel-Guadalupe, 987 F.3d at 431.

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defendant in inpatient treatment amounted to a restriction of Martinez’s 

liberty.16

Here, “[b]ecause we have never passed on the significance (if any) of 

the length of a sentence falling between those in Martinez and MedelGuadalupe, this matter remains subject to ‘reasonable debate’ and a lack of 

‘clear or obvious’ error is a given.”17 Aguilar-Cerda argues that this Court 

implied in Yurika Huerta that allowing a probation officer to “lock [ ] up” a 

defendant for inpatient treatment following a 52 months sentence would be 

an improper delegation of authority to a probation officer.18 However, Yurika 

Huerta did not involve a challenge to whether a district court may delegate 

the inpatient or outpatient treatment designation to a probation officer.19

And, unlike the hypothetical situation presented in Yurika Huerta, the 

district court has required substance abuse treatment here; the probation 

officer may not unilaterally require a treatment program as a condition of 

supervised release. Because it is not clear or obvious that a 45-month

sentence is short enough such that the delegation of the inpatient or 

outpatient designation to a probation officer amounts to a restriction of 

Aguilar-Cerda’s liberty, Aguilar-Cerda cannot show plain error. 

16 Martinez, 987 F.3d at 435.

17 United States v. Ortega, No. 20-10491, 2021 U.S. App. LEXIS 36566, at *6 (5th 

Cir. Dec. 10, 2021) (internal citations removed). See also United States v. Huerta, No. 19-

41018, 2022 U.S. App. LEXIS 392, at *5–*6 (5th Cir. Jan. 6, 2022) (unpublished) (finding 

that our precedent does not clearly resolve the question of whether the delegation of the 

inpatient or outpatient designation to a probation officer is an improper delegation and the 

defendant therefore cannot show plain error).

18 See Yurika Huerta, 994 F.3d at 717. 

19 Id. at 714. 

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* * * *

Accordingly, we AFFIRM the district court’s judgment and GRANT 

counsel’s motion to withdraw as there is no nonfrivolous issue for appeal.

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Patrick E. Higginbotham, Circuit Judge, joined by Priscilla R. 

Owen, Chief Judge, concurring:

I write separately to highlight the fact that, even if our review were not 

under plain error, I would not find an improper delegation. As in MedelGuadalupe, “[i]f, upon his release [Defendant] disagrees with the 

inpatient/outpatient determination, the district court will have the final say 

over the decision.”20 Because Aguilar-Cerda can challenge the probation 

officer’s determination, the district court will be the ultimate decisionmaker. 

No one maintains that the district court judge can delegate to the 

probation officer the authority to revoke supervised release or to impose a 

specific condition of supervised release.21 But here, even though the 

probation officer may make the initial determination of whether judicially 

ordered treatment will occur in an inpatient or outpatient setting, the 

practical reality is that the district court maintains the ultimate authority over 

Aguilar-Cerda’s conditions of supervised release. The district court judge 

legally restricted Aguilar-Cerda’s liberty interests in a sentence spanning 

over six years—45 months by incarceration and the remainder by supervised 

release. The district court judge ordered that one of the conditions for 

supervised release is that Aguilar-Cerda participate in a substance abuse 

treatment program. Should Aguilar-Cerda breach a condition of supervised 

release, only the district court has the authority to revoke supervised 

release.22 Thus, there is no improper delegation. 

20 Medel-Guadalupe, 987 F.3d at 431.

21 Sealed Appellant v. Sealed Appellee, 937 F.3d 392, 400 (5th Cir. 2019) (“The 

imposition of a sentence, including the terms and conditions of supervised release, is a core 

judicial function that cannot be delegated.”) (internal quotations and citations removed). 

22 See 18 U.S.C. § 3583(e)(3).

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