13-4078-cr

United States v. Matta

1 UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

August Term, 2014 4

5

(Submitted: September 19, 2014 Decided: January 26, 2015) 6

7

Docket No. 13

‐ 4078 8

9

_____________________________________ 10

11

UNITED STATES OF AMERICA, 12

13

Appellee

, 14

15

v. 16

17

LUIS MATTA, 18

19

Defendant

‐ Appellant

. 20

21

_____________________________________ 22

23

Before: 24

25

CABRANES and 

### LOHIER

, Circuit Judges

, and ENGELMAYER, District 26 Judge

. * 27

28

In connection with violation of supervised release proceedings, Luis 29

Matta was sentenced to a 24

‐ month term of imprisonment to be followed by 30

12 months of supervised release. As special conditions of supervised release, 31

the District Court (Dora L. Irizarry, Judge ) included four months in a 32

residential reentry center and participation in a drug treatment or 33

detoxification program. The District Court left it to the discretion of the 34

federal Probation Department to decide whether Matta would be required to 35

participate in an inpatient or outpatient drug treatment program. Matta now 36 appeals his sentence, including the District Court’s delegation of the decision 37

* Judge Paul A. Engelmayer of the United States District Court for the

Southern District of New York, sitting by designation.13-4078-cr

United States v. Matta

2 to select between inpatient and outpatient drug treatment. Because we agree 1

that the District Court’s delegation of this decision to the Probation 2

Department was improper, we VACATE that portion of the sentence and 3

REMAND to the District Court. We otherwise AFFIRM the sentence. 4

5 Yuanchung Lee, Assistant Federal Public 6

Defender, Federal Defenders of New York, Inc., 7

New York, NY, for Defendant

‐ Appellant. 8

9

Susan Corkery, Margaret E. Lee (on the brief), for 10

Loretta E. Lynch, United States Attorney, Eastern 11

District of New York, Brooklyn, NY, for Appellee

. 12

13

LOHIER, Circuit Judge : 14

15

The principal issue we are asked to consider on this appeal is whether a 16

sentencing court may delegate its sentencing authority to the United States 17

Probation Department 1 to determine whether a defendant should undergo 18

inpatient or outpatient drug treatment as a special condition of supervised 19

release. Here, the District Court (Irizarry, J.) imposed a special condition of 20

supervised release that delegated the discretion to select between inpatient 21

1 District Courts in this Circuit appear to call the office responsible for

administering federal probation and pretrial services functions by various

names. See, e.g., United States Probation Department for the Eastern District

of New York, http://www.nyep.uscourts.gov (last visited Jan. 12, 2015);

United States Probation Office for the Southern District of New York,

http://probation.nysd.uscourts.gov (last visited Jan. 12, 2015); United States

Probation and Pretrial Services for the Western District of New York,

http://www.nywp.uscourts.gov (last visited Jan. 12, 2015). Because this case

arises in the Eastern District of New York, we refer to the office as the

“Probation Department.” For a general account of the history and role of

federal probation officers, see United States v. Reyes, 283 F.3d 446, 455

‐ 57 (2d

Cir. 2002).13-4078-cr

United States v. Matta

3 and outpatient treatment to the Probation Department. On appeal, Luis 1

Matta challenges the delegation and also attacks his sentence on other 2

grounds. We agree that the District Court’s delegation was improper, and we 3

vacate the special condition effectuating it and remand with instructions that 4

the District Court itself select which form of treatment, if any, Matta should 5

undergo. We reject Matta’s remaining sentencing challenges and affirm in all 6

other respects. 7

BACKGROUND 8

I. The Supervised Release Violations 9

In 2007 Matta pleaded guilty to being a felon in possession of a firearm 10

and was sentenced principally to 36 months’ imprisonment and three years of 11

supervised release. In August 2012 Matta was released from prison and 12

began his term of supervised release. Within two months of Matta’s release, 13

the Probation Department issued a violation of supervised release (“VOSR”) 14

report charging Matta with assaulting (“Charge One”) and menacing 15

(“Charge Two”) the mother of his child by punching her repeatedly in the 16

face. Three other VOSR reports followed, charging Matta with using cocaine 17

(“Charge Three”), failing to reside in and abide by the rules of a residential 1813-4078-cr

United States v. Matta

4 reentry center for a period of 120 days (“Charge Four”), jumping over a 1

subway turnstile without permission (“Charge Five”), leaving a drug 2

treatment program early without permission (“Charge Six”), and failing to 3

report to the Probation Department (“Charge Seven”). 4

On September 5, 2013, the Probation Department issued a final VOSR 5

report describing New York State charges that had been filed against Matta 6

after an incident on August 31, 2013, in which Matta reportedly threatened a 7

female friend with a knife while intoxicated and kicked down her apartment 8

door after she refused to let him into the apartment. Although New York 9

eventually dismissed these charges, the Probation Department charged Matta 10

with three violations relating to the incident: menacing (“Charge Eight”), 11

criminal mischief (“Charge Nine”), and possession of a weapon (“Charge 12

Ten”). 13

II. Resolution of the Charges 14

In August 2013 the District Court found Matta guilty of Charges One 15

through Three and revoked his supervised release. 2 As for the remaining 16

2 The District Court made this finding after reviewing the record of an

evidentiary hearing conducted by a magistrate judge regarding those charges

and adopting the magistrate judge’s report and recommendation. Matta did13-4078-cr

United States v. Matta

5 charges, in October 2013 Matta pleaded guilty to Charges Four through 1

Seven, while the Government agreed to dismiss Charges Eight through Ten 2

(relating to the August 31, 2013 incident). 3

After accepting Matta’s guilty plea, the District Court, with the consent 4

of the parties, proceeded immediately to sentencing. At sentencing Matta’s 5

counsel raised the issue of Matta’s prior drug use and the appropriateness of 6

drug treatment, remarking that while “maybe drug testing and treatment, 7

special condition is appropriate, I don’t think it would be appropriate at this 8

time to order a condition of inpatient treatment.” Joint App’x at 116. After 9

determining that Matta’s Sentencing Guidelines range was 8 to 14 months

– a 10

calculation uncontested by either party

– the District Court proceeded to 11

review the factors listed in 18 U.S.C. § 3553(a). In particular, the court 12

considered the events of August 31, 2013 that gave rise to the dismissed 13

charges against Matta: 14

But I have to say, I have to agree with 15

Probation, that you weren’t even on supervised 16

release for six months before the violations really 17

started to roll in, beginning with a very serious 18

incident of violence. It’s interesting that these 19

incidents involving violence involve women. 20

not contest the third charge, and in any event on appeal does not challenge

the conviction on Charges One through Three.13-4078-cr

United States v. Matta

6 There was serious injury to the victim, and that 1

was proven to this Court’s satisfaction and the 2

Magistrate Judge’s satisfaction by a 3

preponderance of the evidence. 4

5

. . . . 6

7

[E]ven though charges eight through ten were 8

dismissed, it is disturbing that again it involved a 9

violent incident with a woman. 10

11

Alcohol was involved.

. . . 12

13

So I don’t know how much of any lesson 14

you have learned, quite frankly. I don’t think you 15

have learned any lesson whatsoever. 16

17

Joint App’x at 119

‐ 20. 18

The District Court sentenced Matta principally to a term of 19

imprisonment of 24 months, 3 to be followed by 12 months of supervised 20

release, including four months in a residential reentry center. The court also 21

required Matta to participate in a drug treatment or detoxification program as 22

a special condition of supervised release. In doing so, the court left it “to the 23

discretion of Probation” to decide whether an inpatient or outpatient program 24

was “most appropriate.” The subsequent judgment of conviction confirmed 25

that Matta would be required to “participate in an outpatient and/or inpatient 26

3 The Government and the Probation Department had recommended a 14

‐

month term of imprisonment.13-4078-cr

United States v. Matta

7 drug treatment or detoxification program approved by the U.S. Probation 1

Department.” Joint App’x at 129. Matta failed to object to the imposition of 2

this special condition. 3

This appeal followed. 4

DISCUSSION 5

I. Delegation to the Probation Department 6

In addition to attacking the reasonableness of his sentence, Matta 7

argues that the District Court impermissibly delegated its sentencing 8

authority by allowing the Probation Department to determine whether he 9

should undergo inpatient or outpatient drug treatment as a condition of 10

supervised release. Because we agree that the delegation was impermissible 11

for the reasons explained below, we vacate that portion of the sentence and 12

remand to the District Court to determine for itself whether such treatment, if 13

still necessary, should be on an inpatient or outpatient basis. 14

As an initial matter, the Government points out that Matta failed to 15

object to the District Court’s delegation and argues that we should review it 16

for plain error. It urges that on plain error review Matta’s argument fails 17

because there was no clear precedent preventing the District Court’s 1813-4078-cr

United States v. Matta

8 delegation; in other words, the error was not “plain.” We appreciate that 1

Matta failed to object to this particular condition of supervised release at 2

sentencing, and we agree with the Government that under those 3

circumstances we ordinarily review for plain error. United States v. Green, 4

618 F.3d 120, 122 (2d Cir. 2010) (“Generally, we review conditions of 5

supervised release for abuse of discretion. When the defendant does not 6

object to the conditions, however, we review only for plain error.” (citation 7

omitted)). But plain error review is not always warranted in the sentencing 8

context. We have explained that “the plain error doctrine should not be 9

applied stringently in the sentencing context, where the cost of correcting an 10

unpreserved error is not as great as in the trial context.” United States v. 11

Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (citing United States v. Williams, 399 12

F.3d 450, 456

‐ 57 (2d Cir. 2005)). And so we have employed a “relaxed” form 13

of plain error review in those rare cases in which the defendant lacked 14

sufficient prior notice that a particular condition of supervised release might 15

be imposed. See Green, 618 F.3d at 122; United States v. Sofsky, 287 F.3d 122, 16

125

‐ 26 (2d Cir. 2002). 1713-4078-cr

United States v. Matta

9 Here, we conclude that Matta did not have a sufficient opportunity to 1

raise a contemporaneous objection to the challenged delegation as a condition 2

of supervised release. Matta could not have known of the delegation until the 3

District Court had imposed sentence: the PSR made no mention of delegating 4

to the Probation Department the decision as to treatment; nor did the District 5

Court warn Matta of the possibility before imposing sentence, and even then 6

all that the court said was that it would leave “to the discretion of Probation” 7

the decision whether an inpatient or outpatient program was “most 8

appropriate.” Joint App’x at 120. Accordingly, “[b]oth because the alleged 9

error relates only to sentencing and because [Matta] lacked prior notice, we 10

will entertain his challenge without insisting on strict compliance with the 11

rigorous standards” of plain error review. Sofsky, 287 F.3d at 125

‐ 26. 12

We turn next to the merits of Matta’s challenge to the District Court’s 13

delegation. The power to impose special conditions of supervised release, 14

including participation in a substance abuse program, is vested exclusively in 15

the district court. See 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b), (d)(4). It is true 16

that a district court may delegate to a probation officer decisionmaking 17

authority over certain minor details of supervised release

– for example, the 1813-4078-cr

United States v. Matta

10 selection of a therapy provider or treatment schedule. See United States v. 1

Peterson, 248 F.3d 79, 85 (2d Cir. 2001). But a district court may not delegate 2

to the Probation Department decisionmaking authority which would make a 3

defendant’s liberty itself contingent on a probation officer’s exercise of 4

discretion. See id. For example, if, as a special condition of supervised 5

release, a defendant is “required to participate in a [substance abuse] 6

intervention only if directed to do so by his probation officer, then this special 7

condition constitutes an impermissible delegation of judicial authority to the 8

probation officer.” Id. In other words, the extensive “supervision mission” of 9

federal probation officers includes “execut[ing] the sentence,” United States v. 10

Reyes, 283 F.3d 446, 456 (2d Cir. 2002) (emphasis omitted), but not imposing 11

it. 12

There is no dispute that, in the context of supervised release at least, 13

inpatient drug treatment programs are sufficiently more restrictive than 14

outpatient programs that the difference between the two programs might be 15

said to be the difference between liberty and the loss of liberty. In inpatient 16

drug treatment, the offender can remain at a designated facility 24 hours each 17

day for several months, unable to hold a job or regularly commune with 1813-4078-cr

United States v. Matta

11 friends and family. In outpatient drug treatment, by contrast, the same 1

offender can reside at home and hold a job. See Nat’l Inst. on Drug Abuse, 2

Principles of Drug Addiction Treatment 33

‐ 35 (3d ed. 2012). 3

Because of these differences, the Ninth and Tenth Circuits, the only 4

other circuits to have considered the issue in precedential opinions, have held 5

that district courts may not delegate to the Probation Department the decision 6

to require inpatient or outpatient treatment. 4 United States v. Mike, 632 F.3d 7

686 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088 (9th Cir. 2009). 8

Both circuits have recognized that “[i]n terms of the liberty interest at stake, 9

confinement to [an inpatient] facility is far more restrictive than having to 10

attend [outpatient treatment] sessions, even daily.” Esparza, 552 F.3d at 1091; 11

see also Mike, 632 F.3d at 695 (“Conditions [like inpatient treatment] that 12

touch on significant liberty interests are qualitatively different from those that 13

do not.”). The importance of the distinction between inpatient and outpatient 14

treatment is bolstered by “Congress’ recognition of procedural and 15

substantive protections that apply to civil commitment to inpatient facilities.” 16

4 In non

‐ precedential dispositions, two other circuits have suggested that such

a delegation is permissible. See United States v. Cutler, 259 F. App’x 883, 886

‐

87 (7th Cir. 2008); United States v. Calnan, 194 F. App’x 868, 870

‐ 71 (11th Cir.

2006). But neither of these orders contains any extensive analysis of the

specific issue before us.13-4078-cr

United States v. Matta

12 Esparza, 552 F.3d at 1091 (citing 18 U.S.C. § 4248 (civil commitment of 1

“sexually dangerous” persons)). 2

We agree with both of our sister circuits that, “[i]n light of this 3

difference [between inpatient and outpatient treatment],

. . . granting the 4

probation officer the discretion to decide whether such conditions will be 5

imposed is tantamount to allowing him to decide the nature or extent of the 6

defendant’s punishment,” and that “any condition that affects a significant 7

liberty interest, such as one requiring the defendant to participate in 8

residential treatment

. . . must be imposed by the district court and supported 9

by particularized findings that it does not constitute a greater deprivation of 10

liberty than reasonably necessary to accomplish the goals of sentencing.” 11

Mike, 632 F.3d at 695

‐ 96; see Esparza, 552 F.3d at 1091 (vacating condition of 12

supervised release that delegated discretion to probation officer); see also 18 13

U.S.C. § 3583(d)(2). 14

Applying “relaxed” plain error review, we conclude that the District 15

Court’s delegation to the Probation Department of the discretion to require 16

either inpatient or outpatient drug treatment was an impermissible delegation 17

of judicial sentencing authority. We therefore vacate that portion of the 1813-4078-cr

United States v. Matta

13 sentence and remand to the District Court to impose inpatient or outpatient 1

treatment as a special condition of supervised release, if necessary. 2

II. Community Confinement 3

Matta also argues that his sentence unlawfully exceeds the statutory 4

maximum of 24 months’ imprisonment because his 24

‐ month term of 5

imprisonment is to be followed by four months in a residential reentry center 6

as a special condition of supervised release. We reject Matta’s argument for 7

two reasons. 8

First, 18 U.S.C. § 3583(d) specifically authorizes district courts to require 9

defendants to “reside at, or participate in the program of, a community 10

corrections facility” as a special condition of supervised release. 18 U.S.C. 11

§ 3563(b)(11); see id. § 3583(d) (granting the district court the authority to 12

order as a condition of supervised release “any condition set forth as a 13

discretionary condition of probation in section 3563(b)”). Because Matta’s 14

four months in a residential reentry center was imposed as a condition of 15

supervised release, and supervised release necessarily follows incarceration, 16

Matta’s sentence is authorized by statute. 1713-4078-cr

United States v. Matta

14 Second, 18 U.S.C. § 3583(e) sets the statutory maximum as a cap only on 1

time spent “in prison.” Id. § 3583(e). Residential reentry is a form of 2

community confinement, not a form of home confinement or an extension of 3

prison. Indeed, residential reentry centers are sometimes referred to as 4

“community confinement” facilities, see U.S.S.G. § 5F1.1, or “halfway 5

houses,” as Matta himself described them during his sentencing, Joint App’x 6

at 110. We have emphasized that “‘[i]mprisonment’ and ‘community 7

confinement’ are not synonyms. ‘Imprisonment’ is the condition of being 8

removed from the community and placed in prison, whereas ‘community 9

confinement’ is the condition of being controlled and restricted within the 10

community.” United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995). As a form 11

of community confinement, therefore, residential reentry is neither a term of 12

imprisonment nor a substitute for prison. 5 Accordingly, under the Sentencing 13

Guidelines, residence in a community confinement facility “may be imposed 14

as a condition of supervised release,” U.S.S.G. § 5D1.3(e)(1), beyond the 15

5 To support his argument that placement in a residential reentry center is a

form of imprisonment, Matta notes that federal inmates are placed in such

centers during the final months of their prison term. See 18 U.S.C.

§ 3624(c)(1). He overlooks the fact that residential reentry may be used for

purposes or in ways beyond those related to supervised release. See id.

§ 3563(b)(11) (authorizing residential reentry as a condition of probation); id.

§ 3624(c) (authorizing residential reentry as a form of prerelease custody).13-4078-cr

United States v. Matta

15 statutory maximum term of imprisonment, see Pepper v. United States, 131 S. 1

Ct. 1229, 1248 n.15 (2011) (“Supervised release follows a term of 2

imprisonment and serves an entirely different purpose than the sentence 3

imposed under § 3553(a).” (emphases added)). 4

III. Procedural and Substantive Reasonableness 5

Lastly, Matta challenges his 24

‐ month term of imprisonment as both 6

procedurally and substantively unreasonable. 7

Procedural reasonableness focuses on whether a district court “fails to 8

calculate the Guidelines range

. . . , makes a mistake in its Guidelines 9

calculation,

. . . treats the Guidelines as mandatory

. . . [,] does not consider 10

the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of 11

fact.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 12

Substantive reasonableness “focuses on a district court’s explanation of its 13

sentence in light of the factors contained in 18 U.S.C. § 3553(a).” United States 14

v. Gonzalez, 529 F.3d 94, 98 (2d Cir. 2008). “In examining the substantive 15

reasonableness of a sentence, we review the length of the sentence imposed to 16

determine whether it ‘cannot be located within the range of permissible 17

decisions.’” United States v. Rubin, 743 F.3d 31, 39 (2d Cir. 2014) (quoting 1813-4078-cr

United States v. Matta

16 United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012)); see United States v. 1

Park, 758 F.3d 193, 199 (2d Cir. 2014) (“[O]ur substantive review of a sentence 2

is akin to review under an ‘abuse

‐ of

‐ discretion’ standard, a form of review 3

with which appellate courts are long familiar.”). With these principles in 4

mind, we conclude that Matta’s sentence of imprisonment was neither 5

procedurally nor substantively unreasonable. 6

In pressing his claim of procedural unreasonableness, Matta argues that 7

the District Court should not have considered conduct relating to the 8

dismissed charges from the August 31, 2013 incident. We review this claim 9

for plain error because Matta failed to raise it before the District Court at 10

sentencing even though he had the opportunity to do so. We barely discern 11

error, let alone plain error, in the court’s brief reference to the August 31 12

incident. The reference constituted a negligible part of the sentencing record. 13

In referring to the incident, moreover, the District Court explained that its 14

sentence rested on several factors surrounding Matta’s violations and that it 15

was well aware that Matta’s conduct on August 31 resulted in “charges [that] 16

were dismissed.” Joint App’x at 119. Moreover, the court referred to the 1713-4078-cr

United States v. Matta

17 August 31 incident not as a violation or “charge,” but as yet another example 1

of a situation involving Matta, a woman, and violence. 2

We also reject Matta’s challenge to his sentence as substantively 3

unreasonable on the ground that his 24

‐ month term of imprisonment 4

exceeded the recommended Sentencing Guidelines range of 8 to 14 months 5

(and the 14

‐ month sentence proposed by the Government and the Probation 6

Department). The District Court adequately explained its sentence by 7

reference to the factors listed in § 3553(a), and on this record we cannot say 8

that the sentence it imposed exceeds the “range of permissible decisions.” 9

Rubin, 743 F.3d at 39 (quotation marks omitted); see United States v. 10

Pelensky, 129 F.3d 63, 69 (2d Cir. 1997) (“[T]he court ultimately has broad 11

discretion to revoke its previous sentence and impose a term of imprisonment 12

up to the statutory maximum.” (quotation marks omitted)). 13

CONCLUSION 14

For the foregoing reasons, we VACATE and REMAND with respect to 15

the challenged condition of supervised release, and otherwise AFFIRM the 16

sentence. 17