IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41204

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DOMINGO TORRES-PINDAN, also known as Domingo Torres-Pineda,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before DEMOSS, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Domingo Torres-Pindan (Torres) pleaded guilty to one count of unlawfully

transporting illegal aliens within the United States. The district court sentenced

Torres to 27 months imprisonment and three years supervised release. The

district court imposed several “special conditions” of supervised release,

including: (i) drug surveillance (i.e., drug testing in addition to the mandatory

drug testing under 18 U.S.C. § 3583(d)) “as directed by the probation officer;”

and (ii) participation in a mental health program “as deemed necessary and

United States Court of Appeals

Fifth Circuit

F I L E D

November 1, 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. 09-41204

approved by the probation officer.” Torres argues that the district court erred

by imposing the additional drug testing special condition because the condition

is not “reasonably related” to the sentencing factors of § 3553(a) and it involves

a “greater deprivation of liberty than is reasonably necessary.” See United

States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (citation omitted). Torres

also argues that the district court erred by impermissibly delegating its judicial

authority to the probation officer.

Generally, our review of the district court’s determination of supervised

release conditions is for abuse of discretion. See id. at 165. However, because

Torres failed to object to the special conditions when they were pronounced at

sentencing, we review for plain error. See United States v. Weatherton, 567 F.3d

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149, 152 (5th Cir.), cert. denied, 130 S. Ct. 300 (2009). To demonstrate plain

error, Torres must show an error that is clear or obvious under our existing law

and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.

1423, 1429 (2009); United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010).

If Torres makes such a showing, we have discretion to correct the error if it

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

proceedings.” Puckett, 129 S. Ct. at 1429 (internal marks and citation omitted).

We must first determine whether the district court committed plain error

in imposing the additional drug testing special condition. A district court has

wide discretion to impose conditions of supervised release, limited by § 3583(d).

See Paul, 274 F.3d at 164–65. A district court “can require participation in a

substance abuse program if it has reason to believe that the defendant abuses

controlled substances.” United States v. Cothran, 302 F.3d 279, 290 (5th Cir.

2002) (citations omitted); see United States v. Gayford, No. 09-10683, 2010 WL

2332088, at *2 (5th Cir. June 7, 2010) (unpublished). The additional drug

 Torres concedes that the plain error standard of review applies.

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testing imposed in this case is less onerous than imposing participation in a drug

abuse treatment program. Torres admits in the presentence investigation report

(PSR) that he has used both alcohol and two controlled substances (marijuana

and cocaine) in his past, and the district court explicitly adopted the PSR as its

findings. See Cothran, 302 F.3d at 290. Moreover, the condition is also in

furtherance of the mandatory drug testing condition required by Congress. See

§ 3583(d). Because Torres cannot point to any existing Fifth Circuit case holding

that a district court erred in imposing additional drug testing as a special

condition of supervised release, if there is error in this case, it is not plain.

We next determine whether the district court committed plain error by

impermissibly delegating its judicial authority by imposing (i) the additional

drug testing special condition “as directed by the probation officer,” and (ii) the

mental health special condition “as deemed necessary and approved by the

probation officer.” A district court may not “abdicate[] its judicial responsibility,”

but it may impose special conditions of supervised release “which require the

prior approval of a probation officer.” United States v. Rodriguez, 558 F.3d 408,

415 (5th Cir. 2009). “Probation officers have broad statutory authority to advise

and supervise persons on supervised release to improve the releasees’ conduct

and lives, and to ‘perform any other duty that the court may designate.’” Id. at

414–15 (citing 18 U.S.C. §§ 3601, 3603(3), (10)).

We considered the exact delegation language used in the mental health

special condition in Bishop. See 603 F.3d at 280 (the defendant shall “participate

in a mental health program as deemed necessary and approved by the probation

officer” (internal marks omitted)). In Bishop, we stated that we have

“consistently held that such judicial delegations of authority regarding

counseling do not rise to the level of plain error.” Id. at 281 & n.8 (citing five

unpublished cases holding that it is not plain error to delegate whether and to

what extent the defendant should participate in counseling). Because Torres

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cannot point to any existing Fifth Circuit case contradicting Bishop, if there is

error in this case, it is not plain. See United States v. Turpin, No. 09-40642,

2010 WL 3377231, at *1 (5th Cir. Aug. 25, 2010) (unpublished) (identifying a

circuit split on the delegation issue and noting that the Fifth Circuit “has not yet

decided whether it is permissible for a court to delegate to a probation officer the

determination of whether mental health treatment will be required as part of

supervised release”).

With respect to the additional drug testing delegation language, Torres

cannot point to any existing Fifth Circuit case, nor have we found one, holding

that a district court erred in imposing additional drug testing “as directed by the

probation officer.” Therefore, if there is error in this case, it is not plain.

AFFIRMED.

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