Case: 20-20148 Document: 00515618194 Page: 1 Date Filed: 10/27/2020
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`United States Court of Appeals
`for the Fifth Circuit
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`No. 20-20148
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`United States Court of Appeals
`Fifth Circuit
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`FILED
`October 27, 2020
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`Lyle W. Cayce
`Clerk
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`United States of America,
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`Abran Martinez,
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`Plaintiff—Appellee,
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`versus
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`Defendant—Appellant.
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`Appeal from the United States District Court
`for the Southern District of Texas
`USDC No. 4:17-CR-34-1
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`
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`Before Elrod, Duncan, and Wilson, Circuit Judges.
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`Jennifer Walker Elrod, Circuit Judge:
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`The district court modified the conditions of supervised release for
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`Appellant Abran Martinez to
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`include the provision that Martinez
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`“participate in an inpatient or outpatient substance-abuse treatment
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`program” supervised by Martinez’s probation officer. Because the option to
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`require inpatient rehabilitation delegates to the probation officer the judicial
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`decision to significantly restrict Martinez’s liberty during treatment, we
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`VACATE that condition of supervised release and REMAND to the
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`district court for further proceedings consistent with this opinion.
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`

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`Case: 20-20148 Document: 00515618194 Page: 2 Date Filed: 10/27/2020
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`No. 20-20148
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`I.
`Martinez pleaded guilty to unlawful escape after he failed to return to
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`a halfway house at the end of a workday. Martinez began serving the
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`supervised-release portion of his sentence for that offense in August of 2018.
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`In November 2018, Martinez’s probation officer petitioned the district court
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`to modify the conditions of Martinez’s supervised release because Martinez
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`tested positive for cocaine use. The modification required Martinez to
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`“participate in a program of testing and treatment for drug abuse.”
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`Martinez’s probation officer once more petitioned the court for a
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`modification in August of 2019 because Martinez continued to engage in drug
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`use. At the revocation hearing for this petition, Martinez’s counsel said that
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`Martinez “would be the first to admit there are times that he struggles with
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`substance abuse.” Martinez’s substance-abuse struggles sparked the
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`following dialogue between the district court and Martinez:
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`[THE COURT:] It seems to me—you know, I may be off
`base, or maybe not—that you’re your own worst enemy. You
`walked away from a halfway house; that got you the escape
`charge. You failed to report. You’ve done, you know, cocaine
`on a number of occasions. And I understand how hard
`sometimes those habits are to break.
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`But, you know, as a judge, we can order drug treatment, we can
`order all these different things to try to help, but you’re the
`only one that can make that decision for yourself. You need to
`really take it to heart. . . .
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`I’m going to sentence you, but I’m also going to recommend to
`the Bureau of Prisons that you participate in the drug treatment
`program. When you get out, I want you to participate in the
`drug treatment program.
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`All right. The Court hereby revokes the term of supervised
`release in 17-CR-34 and sentences the defendant Abran
`Martinez to 10 months in the custody of Bureau of Prisons with
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`2
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`

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`Case: 20-20148 Document: 00515618194 Page: 3 Date Filed: 10/27/2020
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`No. 20-20148
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`the reimposition of supervised release under the same terms
`and conditions of one year. . . .
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`Mr. Martinez, as I said, I can order things until I’m blue in the
`face. It only works if you really put your heart into it.
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`THE DEFENDANT: By continuing on this release, it
`just—I mean, I’ve tried it. I’ve tried it several times. I don’t
`know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll
`try again.
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`THE COURT: I want you to try again. I know that the
`probation department didn’t recommend it. And that is one of
`the reasons I only put you back on for a year. If I can help you
`make that step, I want to help you, but try it one more time.
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`Our goal is to get you off drugs. I don’t want to run your life. I
`have enough trouble running my life. But I want to give you a
`chance to break this drug habit.
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`After the hearing, the district court imposed the following written
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`condition:
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`You must participate in an inpatient or outpatient substance-
`abuse treatment program and follow the rules and regulations
`of that program. The probation officer will supervise your
`participation in the program, including the provider, location,
`modality, duration, and intensity. You must pay the costs of
`the program, if financially able.
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`II.
`Martinez appealed the written condition, challenging particularly the
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`words “inpatient or outpatient.” Martinez argues first that he did not have
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`an opportunity to object to these words because he encountered them for the
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`first time in the written judgment. Thus, according to Martinez, our review
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`should be for abuse of discretion. Martinez then argues that the words
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`“inpatient or outpatient”
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`impermissibly delegate
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`judicial sentencing
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`3
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`Case: 20-20148 Document: 00515618194 Page: 4 Date Filed: 10/27/2020
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`No. 20-20148
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`authority to Martinez’s probation officer because inpatient drug-treatment
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`involves a significant deprivation of liberty.
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`The government, conversely, asserts that we should review for plain
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`error because Martinez failed to object to the condition of supervised release
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`in the district court. According to the government, Martinez did have the
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`opportunity to object because the district court stated it was imposing a term
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`of supervised release “under the same terms and conditions” as the 2018
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`modification to Martinez’s supervised release. On the government’s theory,
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`although the 2018 modification did not contain the words “inpatient or
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`outpatient,” it implicitly contained those options; “by leaving those terms
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`unstated, the 2018 condition necessarily contains both.”
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`We agree with Martinez. He had no opportunity to object, and so we
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`review for abuse of discretion. In United States v. Franklin, we reviewed an
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`appeal of a condition of supervised release for abuse of discretion because the
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`defendant had no opportunity to object to the discretion given to a probation
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`officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016).
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`The district court’s oral pronouncement at the sentencing hearing did not
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`mention or define the probation officer’s role in the recommended mental-
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`health treatment. Id. Similarly, in this case the district court’s oral
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`statements at the sentencing hearing did not mention or define the discretion
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`the court would give to the probation officer to choose between inpatient and
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`outpatient treatment. The government’s theory that Martinez should have
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`objected based on the implicit terms of the 2018 modification would require
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`Martinez to object to language that the court could have—but did not—
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`include in its conditions of supervised release. That theory flies in the face
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`of the “abundance of caution” we exercised in Franklin and would lead to
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`unnecessary, inadvertent forfeitures. See 838 F.3d at 567; see also United
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`States v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020) (en banc) (“Our forfeiture
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`4
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`Case: 20-20148 Document: 00515618194 Page: 5 Date Filed: 10/27/2020
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`No. 20-20148
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`caselaw in this area should be remoored to the opportunity to object.”);
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`United States v. Lomas, 643 F. App’x 319, 324 (5th Cir. 2016).
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`III.
`The district court abused its discretion by giving Martinez’s probation
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`officer the option to choose between inpatient and outpatient drug treatment.
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`While probation officers may “manage aspects of sentences” and oversee the
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`conditions of supervised release, a probation officer may not exercise the
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`“‘core judicial function’ of imposing a sentence, ‘including the terms and
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`conditions of supervised release.’” United States v. Barber, 865 F.3d 837, 839
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`(5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the
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`court and may not be delegated. Id. We have previously vacated special
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`conditions that delegate judicial authority to the probation officer by allowing
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`the probation officer to decide whether mental-health or substance-abuse
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`treatment should be required. United States v. Simpson, 788 F. App’x 991,
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`992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th
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`Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017);
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`Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving
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`a probation officer the option to require inpatient treatment impermissibly
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`delegates a core judicial function.
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`Three of our sister circuits have addressed this question in published
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`opinions, and each has decided that the court may not delegate the decision
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`to require inpatient treatment to a probation officer because of the significant
`liberty interests at stake in confinement during inpatient treatment.1 See
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`1 Two other circuits have addressed related issues in unpublished opinions. United
`States v. Cutler, 259 F. App’x 883, 886–87 (7th Cir. 2008) (unpublished); United States v.
`Calnan, 194 F. App’x 868, 870–71 (11th Cir. 2006) (unpublished). In Cutler, the Seventh
`Circuit rejected the appellant’s argument that the probation officer should have placed him
`in inpatient, rather than outpatient, care when the conditions on supervised release did not
`use either term. 259 F. App’x at 885, 887. The court characterized the inpatient–
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`5
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`Case: 20-20148 Document: 00515618194 Page: 6 Date Filed: 10/27/2020
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`No. 20-20148
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`United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v.
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`Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552
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`F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient
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`treatment because the patient cannot leave; the patient must remain at the
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`hospital or facility day and night throughout the duration of the treatment.
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`Matta, 777 F.3d at 122. “Conditions that that touch on significant liberty
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`interests are qualitatively different from those that do not.” Mike, 632 F.3d
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`at 695.
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`Mike is right. The decision to place a defendant in inpatient treatment
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`cannot be characterized as one of the managerial details that may be entrusted
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`to probation officers. See Barber, 865 F.3d at 839. The decision to restrict a
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`defendant’s liberty during the course of treatment must remain with the
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`judge. That said, our decision should not be construed to prevent a defendant
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`from electing inpatient treatment in the absence of a court order. Instead, we
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`hold today that the judge may not delegate to the probation officer the
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`decision to require inpatient, rather than outpatient, treatment because of the
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`liberty interests at stake.
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`*
`*
`*
`The condition allowing Martinez’s probation officer to elect between
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`inpatient or outpatient treatment is VACATED, and the case is
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`REMANDED for further proceedings consistent with this opinion.
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`outpatient decision as a delegable “treatment detail.” Id. In Calnan, the Eleventh Circuit
`concluded that delegation of the inpatient–outpatient decision did not constitute plain
`error. 194 F. App’x at 870–71.
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`6
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