FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-50257 Plaintiff-Appellee,

D.C. No.

v. CR-04-00235-AHS

DEAN HARLON SOLTERO, a/k/a DEAN  ORDER HARLON RESINGER, DEAN HARLON AMENDING SOCTERO, DEAN HARLOW SOCTERO,

OPINION AND DEAN HARLOW SOLTERO and AMENDED “HUERO,” OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

February 7, 2007—Pasadena, California

Filed October 19, 2007

Amended December 12, 2007

Before: Thomas G. Nelson, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges.

Per Curiam Opinion;

Partial Concurrence and Partial Dissent by Judge Hawkins

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

16309
COUNSEL

Sean K. Kennedy, Acting Federal Public Defender, Jonathan

D. Libby, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. 

Debra Wong Yang, United States Attorney, Wayne R. Gross,

Assistant United States Attorney, David R. Gallivan, Special

Assistant United States Attorney, Santa Ana, California, for

the plaintiff-appellee. 

ORDER

The Per Curiam Opinion filed on October 19, 2007, slip op.

14099, and appearing at 2007 WL 3037348 (October 19,

2007), is amended as follows: 

At slip op. 14109, the following is deleted (first paragraph

and footnote 8): 

We agree. While it is possible that “Soltero” is the

defendant’s “true legal name” (as the government

contends),8/ we see no reason for the supervised

release condition to remain ambiguous when it could

16312 UNITED STATES v. SOLTERO
be so easily clarified. The government does not

object to defendant’s use of the surname “Soltero”

during his period of supervised release, and thus we

remand to the district court for it to revise the name

condition so as to require Soltero to use the last

name “Soltero,” rather than his ambiguous “true

legal name.” 

8/ As the government noted at sentencing, “Soltero”

is the name reflected in the defendant’s criminal history records, Social Security documentation, and

marriage license. 

The following replaces the deleted text: 

We disagree. While it is possible that “Soltero” is

the name that defendant uses, he was born “Resinger,” which has apparently never been changed

legally. No authority vests with the federal courts to

grant a name change. If the defendant wishes to

legally change his name under California law, he

must follow the procedures allowed under state law.

The district court did not err by imposing the second

condition of supervised release. 

There are no changes to Judge Hawkins’s Partial Concurrence and Partial Dissent in light of this amendment. 

With this amendment, a majority of the panel has voted to

deny the petition for rehearing. Judge Hawkins has voted to

grant the petition for rehearing. Judges Nelson and Siler have

recommended denying the petition for rehearing en banc.

Judge Hawkins has voted to deny the en banc petition. 

The petition for rehearing and petition for rehearing en

banc are DENIED. 

No further petitions for rehearing or rehearing en banc may

be filed. 

UNITED STATES v. SOLTERO 16313
OPINION

PER CURIAM: 

Dean Harlon Soltero (“Soltero”) appeals the sentence

imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He

argues that the district court erred by failing to verify that he

had read his presentence report (“PSR”) and had discussed it

with his attorney, as well as by imposing three particular conditions of supervised release. We affirm in part, and vacate

and remand in part. 

I.

Soltero1 pleaded guilty to a single-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, both Soltero and

his counsel were given an opportunity to address the court on

the matter of sentencing. Although the court did not expressly

ask Soltero whether he had read the PSR and discussed it with

counsel, Soltero had been advised at a previous hearing that

he would have this opportunity and never indicated to the sentencing court that the opportunity had been denied him. Moreover, Soltero’s counsel raised—and the district court

considered—several objections to facts contained in the PSR,

with counsel using the word “we” to frame the defense’s

objections. 

After ruling on these objections, the court sentenced

Soltero to 72 months imprisonment, followed by three years

of supervised release. During his term of supervised release,

the court ordered Soltero to (among other things): (1) “As

directed by the Probation Officer, . . . pay all or part of the

1Soltero explained to the court during the change of plea hearing that

his legal birth name is Dean Harlon Resinger, although he has used his

stepfather’s surname, Soltero, since age two. See infra Part II.C. 

16314 UNITED STATES v. SOLTERO
costs of treating [his] drug dependency and/or alcohol dependency”; (2) use only his “true legal name”; and (3) refrain

from “associating with any known member of any criminal

street gang or disruptive group . . . , specifically, any known

member of the Delhi street gang.”

2

 The district court overruled Soltero’s objections to these conditions. Soltero now

appeals, arguing that the district court’s failure to verify that

he had read the PSR and discussed it with his attorney

requires resentencing and that the three conditions of supervised release are improper. 

II.

A. District Court’s Compliance with Rule 32(i)(1)(A)

[1] Rule 32(i)(1)(A) requires a district court to “verify that

the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”

3

Fed. R. Crim. P. 32(i)(1)(A). This rule’s purpose is, as Soltero

correctly points out, “to ensure that the defendant [has] the

opportunity to read the report and then clarify or dispute personal information contained” therein. See id., advisory committee’s notes (1983) (“[T]he failure to disclose the report to

the defendant, or to require counsel to review the report with

the defendant, significantly reduces the likelihood that false

statements will be discovered, as much of the content of the

[PSR] will ordinarily be outside the knowledge of counsel.”).

Soltero argues that the district court violated this rule by failing to expressly verify that he had read the PSR and discussed

it with his attorney. 

[2] A district court need not specifically inquire whether a

defendant has read the presentence report, United States v.

Lewis, 880 F.2d 243, 245 (9th Cir. 1989); however, for Rule

2The condition continued as reproduced infra Part II.D. 

3Prior to December 1, 2002, the verification requirement was referenced

in Rule 32(c)(3)(A) and, before December 1, 1994, in Rule 32(a)(1)(A).

UNITED STATES v. SOLTERO 16315
32(a)(1)(A) to be satisfied, the sentencing judge must “reasonably rel[y] on evidence indicating that a defendant has

read the presentence report and discussed it with counsel,” id.

at 246. Here, no such direct evidence exists. Although Soltero

was informed of the PSR’s existence when the district judge

alluded to it at his change of plea hearing, merely informing

a defendant that a PSR would be prepared and that he would

have a chance to read and discuss it with his attorney does not

prove that these events actually took place. United States v.

Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001). 

[3] Additionally, although Soltero’s attorney objected to

portions of the PSR (and at least some of these objections

were likely based on discussions with Soltero), counsel’s

objections do not confirm that Soltero read the entire PSR and

had a chance to point out any factual errors. United States v.

Osborne, 291 F.3d 908, 910 (6th Cir. 2002); United States v.

Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995). Finally, while

Soltero’s attorney repeatedly used the word “we” when discussing the defense’s PSR objections (which might imply that

he spoke for both him and Soltero), we have already held that

use of the word “we” by defense counsel proves nothing, as

“we” is a “common stylistic device used by lawyers.” United

States v. Sustaita, 1 F.3d 950, 953 (9th Cir. 1993). Because

the district court neither directly asked Soltero if he had read

the PSR and discussed it with his attorney nor relied on evidence indicating the same, we hold that the court’s inquiry

was inadequate under Rule 32(i)(1)(A). 

Soltero believes our inquiry should end there and that we

should automatically remand his case for resentencing

because, “[g]iven the court’s failure to comply with Rule 32,

we have no assurance that the PSR was accurate.” While we

acknowledge that some circuits have adopted this approach,

see, e.g., Osborne, 291 F.3d at 910-11, this circuit has consistently held that,“if it is clear that no prejudice resulted” from

a court’s failure to comply with the letter of Rule 32(i)(1)(A),

the error is harmless, and resentencing is unnecessary. United

16316 UNITED STATES v. SOLTERO
States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994);

Sustaita, 1 F.3d at 954. Although we emphasize that this error

can be, and should be, “easily avoided,” Sustaita, 1 F.3d at

954, we still agree—as do several other circuits4 —that a

harmless error analysis is appropriate in this context. 

[4] Here, just as in Davila-Escoveda, Soltero has “made no

affirmative allegation that he failed to read the report” and

review it with his attorney. 36 F.3d at 844. Equally important,

Soltero has never identified—either to the district court or to

this court—any fact in the PSR he would have disputed had

the sentencing judge afforded him the opportunity. Cf.

Sustaita, 1 F.3d at 954. We thus do not see how a failure to

verify that Soltero read the PSR and discussed it with counsel

resulted in any prejudice to Soltero. Accordingly, the district

court’s Rule 32(a)(1)(A) error was harmless. 

B. The Treatment Condition

Soltero’s next contention is that the following condition

impermissibly delegates to the probation officer the court’s

exclusive authority under 18 U.S.C. § 3672:

As directed by the Probation Officer, the defendant

shall pay all or part of the costs of treating the defendant’s drug dependency and/or alcohol dependency

to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672.

Defendant shall provide payment and proof of payment as directed by the Probation Officer. [Condition 6] 

He argues that, pursuant to 18 U.S.C. § 3672, only courts are

4

See United States v. Stevens, 223 F.3d 239, 242-46 (3d Cir. 2000);

Lockhart, 58 F.3d at 89; United States v. Rangel-Arreola, 991 F.2d 1519,

1526 (10th Cir. 1993); United States v. Rodriguez-Luna, 937 F.2d 1208,

1213 (7th Cir. 1991). 

UNITED STATES v. SOLTERO 16317
allowed to make determinations as to a defendant’s ability to

make such payments and whether such payments should be

made. We review this claim for an abuse of discretion. United

States v. Williams, 356 F.3d 1045, 1052 (9th Cir. 2004). 

[5] We addressed this precise issue in United States v.

Dupas, 419 F.3d 916, 924 (9th Cir. 2005).5 In Dupas, we held

that the district court did not plainly err by delegating to a

probation officer the authority to determine whether the

defendant has sufficient funds to pay for treatment and

whether to require such payment. Id. (following the Fifth Circuit’s decision in United States v. Warden, 291 F.3d 363, 365-

66 (5th Cir. 2002)). In approving the delegation in that case,

we noted: 

[T]he context of the provision in § 3672 is quite different from the context found in §§ 3572 and 3664.

The later provisions relate generally to the court’s

imposition of sentences and restitution. Section

3672, by contrast, is directed primarily to the functions of the probation office. Moreover, the need to

interpret the statute strictly so as to reserve core judicial functions to the court is weaker here; the condition at issue does not delegate to the probation

officer the power to order substance abuse treatment

in the first place. Finally, § 3672 requires the court

only to find generally that funds are available to pay

for an offender’s treatment and, if so, allows the

court to direct that such funds be paid. By contrast

§ 3572(d) and § 3664(f) expressly require the court

to establish or specify the precise payment schedule.

Id. at 924 (citations omitted). Based on Dupas, the district

5We recognize that we reviewed the delegation in Dupas for plain error.

Although we employ an abuse of discretion standard in this case, Dupas’s

logic is nonetheless applicable. 

16318 UNITED STATES v. SOLTERO
court did not abuse its discretion in delegating the cost determination to the probation office.6

Soltero also argues that the payment conditions should be

vacated because he has no ability to contribute to the costs of

the substance abuse treatment. He asserts that because the

court found that he did not have the ability to pay a fine, the

court also must find that he does not have the ability to pay

the costs of court-ordered treatment. This argument is without

merit. The district court’s two rulings are harmonious since

any payment toward Soltero’s treatment will be based upon

his ability to pay. See United States v. Bull, 214 F.3d 1275,

1279 (11th Cir. 2000). 

C. The Legal Name Condition

The second condition Soltero disputes reads as follows:

The defendant shall not obtain or possess any driver’s license, Social Security number, birth certificate,

passport or any other form of identification in any

name, other than the defendant’s true legal name,

without the prior written approval of the Probation

Officer; nor shall the defendant use, for any purpose

or in any manner, any name other than his true legal

name. 

At sentencing, Soltero explained that his true legal surname

may technically be “Resinger,”

7

 but that he wanted to con6Although the dissent asserts that assigning the cost determination to the

probation office was an unconstitutional delegation of the authority of the

court, the punishment is still within the hands of the court at the time of

the hearing on violations of the conditions of supervised release. The probation office does not have the power to punish Soltero; it only has the

power to direct Soltero to pay for his treatment, if he is able. 

7This is because Soltero was born “Dean Harlon Resinger” and,

although his mother remarried a man with the surname “Soltero” when he

UNITED STATES v. SOLTERO 16319
tinue using the surname “Soltero,” just as he had been doing

since he was two years old. Nevertheless, the district court

imposed the generic condition reproduced above. Soltero

argues that, because the condition could be read to unjustifiably require him to use a surname he had never used, imposing it was an abuse of the district court’s discretion. Williams,

356 F.3d at 1052. 

[6] We disagree. While it is possible that “Soltero” is the

name that defendant uses, he was born “Resinger,” which has

apparently never been changed legally. No authority vests

with the federal courts to grant a name change. If the defendant wishes to legally change his name under California law,

he must follow the procedures allowed under state law. The

district court did not err by imposing the second condition of

supervised release. 

D. Conditions Relating to Gang Association

The final set of conditions Soltero disputes reads as follows: 

Condition 8:

The defendant shall not associate with any known

member of any criminal street gang or disruptive

group as directed by the Probation Officer, specifically, any known member of the Delhi street gang;

Condition 9: 

was two years old (at which time Soltero adopted this surname and proceeded to use it from that point forward), Soltero’s stepfather never formally adopted him, and Soltero never officially changed his legal name.

See Black’s Legal Dictionary (8th ed. 2004) (defining “legal name” as the

name “usu[ally] acquired at birth or through a court order.”). 

16320 UNITED STATES v. SOLTERO
The defendant shall not be present in any area

known as a criminal street gang gathering of the

Delhi, as directed by the Probation Officer; 

Condition 10: 

The defendant shall not wear, display, use or possess

any insignia, emblem, button, badge, cap, hat, scarf,

bandana, jewelry, paraphernalia, or any article of

clothing which may connote affiliation with, or

membership in the Delhi gang. 

The district court justified its imposition of these conditions

by stating that “defendant is a Delhi gang member and is presumably familiar with the relevant insignia, commonly known

gathering places, and pertinent members” of this gang.

Soltero nonetheless argues that the terms “associate,” “any

criminal street gang,” “disruptive group,” “any area known as

a criminal street gang gathering of the Delhi,” and “items that

connote affiliation with, or membership in the Delhi gang” are

impermissibly vague. United States v. Hugs, 384 F.3d 762,

768 (9th Cir. 2004) (“A [condition of supervised release] ‘violates due process of law if it either forbids or requires the

doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to

its application.’ ” (quoting United States v. Loy, 237 F.3d 251,

262 (3d Cir. 2001)). He also argues that the conditions are

overbroad because casual contact with others—including contacts protected by the First Amendment—could render him in

violation of these conditions.

[7] While a district court’s discretion to set conditions of

supervised release is broad even when those conditions affect

fundamental rights, United States v. Bee, 162 F.3d 1232, 1234

(9th Cir. 1998), restrictions infringing upon fundamental

rights are “reviewed carefully,” United States v. Terrigno, 838

F.2d 371, 374 (9th Cir. 1988). A restriction on a defendant’s

UNITED STATES v. SOLTERO 16321
right to free association is nonetheless valid if it: (1) “is reasonably related to” the goals of deterrence, protection of the

public, and/or defendant rehabilitation; (2) “involves no

greater deprivation of liberty than is reasonably necessary” to

achieve these goals; and (3) “is consistent with any pertinent

policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).” 18 U.S.C. § 3583(d); United

States v. Sales, 476 F.3d 732, 735 (9th Cir. 2007). 

Here, the conditions imposed upon Soltero were, in all but

one respect, within the district court’s discretion to impose.

Conditions 9 and 10 are not impermissibly vague because

they specifically reference the “Delhi gang,” and the district

court is entitled to presume that Soltero—who has admitted to

being a member of this gang—is familiar with the Delhi

gang’s members, its places of gathering, and its paraphernalia.

Hugs, 384 F.3d at 768; see also United States v. Ross, 476

F.3d 719, 722-23 (9th Cir. 2007) (upholding supervised

release condition requiring defendant to refrain from associating with known neo-Nazi/white supremacist groups); United

States v. Schiff, 876 F.2d 272, 276 (2d Cir. 1989) (condition

forbidding parolee from “associat[ing] with any group that

advocates non-compliance with the tax laws” not vague or

overbroad). Moreover, the conditions meet the criteria set

forth in 18 U.S.C. § 3583(d). See Ross, 476 F.3d at 721-22;

United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)

(“Probation conditions may seek to prevent reversion into a

former crime-inducing lifestyle by barring contact with old

haunts and associates, even though the activities may be

legal.”). 

The portion of Condition 8 forbidding Soltero from “associat[ing]” with “any known member of any criminal street

gang . . . , specifically, any known member of the Delhi street

gang,” is also permissible. As explained above, the term

“Delhi street gang” is sufficiently clear, as is the slightly more

ambiguous—but not unconstitutionally so—term “criminal

16322 UNITED STATES v. SOLTERO
street gang.”

8

 The term “associate” is also not, as Soltero

argues, impermissibly vague. The Supreme Court has held

that “incidental contacts”—such as those Soltero fears he

would be punished for inadvertently engaging in—do not constitute “association,” Arciniega v. Freeman, 404 U.S. 4, 5

(1971), and we hold that, with this limitation, “men of common intelligence” need not guess at the meaning of “association” in the context of Condition 8.9

 Once again, that portion

of this condition meets the criteria set forth in 18 U.S.C.

§ 3583(d). See Bolinger, 940 F.2d at 480. 

[8] Condition 8 crosses the line, however, in prohibiting

Soltero from associating with “any known member of any . . .

disruptive group.” As Soltero points out, the term “disruptive

group” has a broad meaning and could reasonably be interpreted to include not only a criminal gang, but also a labor

union on strike, a throng of political protesters, or a group of

sports fans celebrating after their team’s championship victory. It is not immediately apparent to us—and the government makes no effort to explain—how prohibiting Soltero

from associating with the latter three “disruptive groups” is

“reasonably related” to a permissible goal of supervised

release, such as protection of the public or Soltero’s own

rehabilitation. See 18 U.S.C. § 3583(d); Sales, 476 F.3d at

8Although it is not crucial to our finding that the meaning of “criminal

street gang” would be apparent to the average person, we note that 18

U.S.C. § 521(a) defines “criminal street gang” as “an ongoing group, club,

organization, or association of 5 or more persons . . . that has as [one] of

its primary purposes the commission of [one] or more of the criminal

offenses described in [18 U.S.C. § 521(c) and] . . . the members of which

engage, or have engaged within the past 5 years, in a continuing series of

offenses described in [§ 521(c)].” 

9We note that Soltero only violates the condition if the gang member he

associates with is known to him to be a gang member, thus undermining

his argument that he is “expected to know of every gang currently operating on the streets . . . as well as gangs operating after his release from

prison . . . .” See Ross, 476 F.3d at 722-23; see also United States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006) (“Generally, supervised release provisions are read to exclude inadvertent violations.”). 

UNITED STATES v. SOLTERO 16323
735. Accordingly, the substantial encroachment upon

Soltero’s First Amendment rights created by the portion of

Condition 8 prohibiting him from associating with “any

known member of . . . any disruptive group” is without sufficient justification and must be stricken. See Terrigno, 838

F.2d at 374 (“The mere fact that a condition restricts a probationer’s freedom to perform otherwise lawful activities is not

dispositive of the reasonableness of the condition. But if conditions are drawn so broadly that they unnecessarily restrict

otherwise lawful activities they are impermissible.” (internal

citations omitted)).10 We thus remand to the district court for

it to excise this portion of Condition 8 from Soltero’s set of

supervised release conditions. 

AFFIRMED in part and REMANDED in part. 

10The government argues that, read in context, it is clear that the term

“disruptive group” was intended to cover only those disruptive groups that

are also “gangs.” However, even if Soltero would only be prosecuted for

a supervised release violation if he associated with disruptive gangs (and

not if he associated with other arguably “disruptive groups”)—which, if

true, would make the condition redundant and, thus, unnecessary for the

government’s stated purposes—there is no way for Soltero to know this

from the condition’s plain language. 

A probationer must be put on clear notice of what conduct will (and will

not) constitute a supervised release violation, a rule that is of particular

importance when the condition seems to reach constitutionally protected

conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir.

1970). An overly broad condition like this one cannot be “saved” merely

because the government promises to enforce it in a narrow manner. See

United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001) (A vague supervised release condition “cannot be cured by allowing the probation officer

an unfettered power of interpretation, as this would create one of the very

problems against which the vagueness doctrine is meant to protect, i.e., the

delegation of ‘basic policy matters to policemen . . . for resolution on an

ad hoc and subjective basis.’ ”); cf. Grayned v. City of Rockford, 408 U.S.

104, 109 (1972) (“[W]here a vague statute abuts upon sensitive areas of

basic First Amendment freedoms, it operates to inhibit the exercise of

those freedoms. Uncertain meanings inevitably lead citizens to steer far

wider of the unlawful zone . . . than if the boundaries of the forbidden

areas were clearly marked.” (internal quotation marks, alterations, citations, and footnotes omitted)). 

16324 UNITED STATES v. SOLTERO
HAWKINS, Circuit Judge, concurring in part and dissenting

in part: 

I concur in all of the majority Opinion save that concerning

the treatment condition (Section II.B), which, in my view,

constitutes an impermissible delegation to the probation

office. As I read 18 U.S.C. § 3672, only courts are permitted

to decide whether, and to what extent, a defendant is required

to pay for drug treatment costs. 

Although we considered a nearly identical supervised

release condition in United States v. Dupas, 419 F.3d 916 (9th

Cir. 2005), we did so under the plain error standard of review

because, unlike Soltero, Dupas failed to make a timely objection to imposition of the condition. Dupas thus left open the

question whether imposing this condition constituted legal

error. See id. at 924 (concluding that if it was error to impose

the condition, that error was not plain). We are now asked to

answer the question left open in Dupas: May a district court—

consistent with Article III’s prohibition against delegating

sentencing decisions to probation offices, see United States v.

Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005)—allow the

probation office to decide whether a defendant will be

required to pay all or part of the costs of treating his or her

substance dependency? 

As a general rule, although a sentencing court must determine “whether a defendant must abide by a condition, and

how . . . a defendant will be subjected to the condition,” the

court may “delegate to the probation officer the details of

where and when the condition will be satisfied.” Stephens,

424 F.3d at 880. Under our Constitution, the power to punish

is exclusively judicial, see Ex parte United States, 242 U.S.

27, 41-42 (1916), and thus the important limitation on a district court’s discretion is that it may not delegate to the probation office the job of “decid[ing] the nature or extent of the

punishment imposed upon a probationer,” United States v.

Pruden, 398 F.3d 241, 250 (3d Cir. 2005). 

UNITED STATES v. SOLTERO 16325
In United States v. Warden, 291 F.3d 363 (5th Cir. 2002),

the Fifth Circuit considered a remarkably similar (though not

identical) supervised release condition, which stated: “The

defendant will incur the costs associated with [several counseling and treatment] programs, based on ability to pay as

determined by the probation officer.” Id. at 364. The court in

Warden upheld the condition, explaining that, per the condition’s plain language, “the probation officer [was] given only

the responsibility to make a determination as to [the defendant’s] ability to pay, a factfinding determination commonly

made by probation officers in other contexts.” Id. at 366

(emphasis added). The Fifth Circuit thus implicitly drew a

distinction between the sentencing decision itself, which was

made by the court when it ordered Warden to pay all the costs

associated with his treatment, see id. at 364 (“The defendant

will incur the costs . . . .” (emphasis added)), and the execution of that sentence, which was left to the probation office

based on its assessment (and perhaps its periodic reassessment) of the defendant’s financial situation. 

The distinction drawn by the Fifth Circuit makes good

sense. As a practical matter, probation offices are already

charged with making ability to pay determinations in other contexts,1

 and are almost always in possession of the information

needed to make these determinations accurately and expediently. See United States Sentencing Guidelines Manual

§ 5D1.3(c)(15) (2000) (standard supervised release condition

requires defendants to “notify the probation office[ ] of any

material change[s] in the [their] economic circumstances that

might affect [their] ability to pay any unpaid amount of resti1

See, e.g., 18 U.S.C. § 3664 (requiring probation office to include, in

every PSR it prepares for crimes described in 18 U.S.C. § 3663A(c), “information sufficient for the court to exercise its discretion in fashioning a

restitution order,” including “information relating to the economic circumstances of each defendant”—i.e., its calculation of the defendant’s ability

to pay); United States v. Rearden, 349 F.3d 608, (9th Cir. 2003) (discussing probation office’s role in ascertaining a defendant’s ability to pay a

fine). 

16326 UNITED STATES v. SOLTERO
tution, fines, or special assessments”). I agree there is no

sound reason to burden district courts with such matters when

the purely administrative task of determining an individual’s

ability to pay can be left in the capable hands of institutions

that regularly make such determinations. 

I also agree that the condition upheld in Warden comports

with the Article III requirement that the court, not the probation office, “impose the [defendant’s] punishment,” Ex parte

United States, 242 U.S. at 41-42, as well as the 18 U.S.C.

§ 3672 requirement that the “court[, not the probation office,]

. . . direct the payment of [treatment costs],” if any. The Warden court made it clear that part of the defendant’s punishment was to pay for all of his own rehabilitative treatment

costs—a requirement the defendant was ordered to fulfill

unless the probation office later determined he was financially

unable to do so. The Warden court could have directed the

defendant to pay none of his treatment costs, or to pay only

the first $250 of those costs, depending on the circumstances

of the particular case. While the court left to the probation

office the administrative detail of calculating the defendant’s

ability to pay, the court itself decided whether the defendant’s

punishment should include payment of some, all, or none of

his rehabilitative costs, as Article III and § 3672 required it to

do. 

If the condition imposed upon Soltero were identical to that

imposed in Warden, I would have no trouble upholding it.

Unfortunately, where the Warden condition explicitly directed

the defendant to pay the full costs of his treatment and delegated only the ability to pay determination to the probation

office, the condition here goes a step further and delegates to

the probation office responsibility for determining not only

the defendant’s ability to pay for court-ordered treatment, but

also whether the defendant should be required to pay for

some, all, or none of the treatment in the first instance. In

essence, the condition here delegates the entire sentencing

UNITED STATES v. SOLTERO 16327
decision—not just the ministerial “ability to pay” computation

—to a non-judicial officer. 

While, in practice, this may be only a semantic distinction

—as it is likely a probation office faced with the condition in

Warden and the condition imposed here would reach the same

result (i.e., the office would compute the defendant’s ability

to pay and then require the defendant to pay treatment costs

up to that amount)—deciding whether a defendant should be

forced to pay for rehabilitative treatment (and, if so, to what

extent) is a decision that is punitive in nature and, thus, Article III requires it to be made by a judge, not a probation officer. Ex parte United States, 242 U.S. at 41-42; Stephens, 424

F.3d at 880-81. I sympathize with the district court’s inclination to delegate an administrative task to an administrative

agency whose information about a defendant’s financial situation may be superior to its own; however, the way in which

the district court sought to achieve that end here delegates too

much. 

16328 UNITED STATES v. SOLTERO