Fifth Circuit Notes Split Re Propriety of Delegating Conditions of Probation Is Permissible

Per U.S. v. Turpin, Slip Copy, 2010 WL 3377231 (5th Cir. Aug. 25, 2010):

Turpin contends on appeal that the district court impermissibly delegated its judicial authority and committed plain error by requiring participation in the mental health and anger management programs “as deemed necessary and approved by the probation officer .” There is currently a circuit split on this issue. The Third, Fourth, and Eleventh Circuits have held that imposing a sentence, including conditions of probation, is a strictly judicial function that may not be delegated. United States v. Pruden, 398 F.3d 241, 251 (3d Cir.2005); United States v. Johnson, 48 F.3d 806, 808 (4th Cir.1995) (“[T]he imposition of a sentence, including any terms for probation or supervised release, is a core judicial function”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005) (“[D]elegating to the probation office the authority to decide whether a defendant will participate in a treatment program is a violation of Article III.”).

However, the Eight and Ninth Circuits have held that, as long as a judicial officer retains ultimate authority and responsibility for approving conditions of probation, limited authority regarding the details of supervised release may be delegated to probation officers. United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir.2006); United States v. Bowman, 175 F. App'x. 834, 838 (9th Cir.2006) (unpublished) (finding that delegating limited authority to probation officer to recommend whether or not defendant should have unsupervised visits was permissible, because “if the probation officer arbitrarily or unfairly denies [defendant] a favorable recommendation, [defendant] is free to seek relief from the district court....”). The Sixth Circuit has held that, although “fixing the terms and conditions of probation is a judicial act which may not be delegated,” delegating such things as the schedule of restitution payments is permissible. Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir.2001) (quoting Whitehead v.. United States, 155 F.2d 460, 462 (6th Cir.1946)). 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.

However, we need not reach the delegation issue in Turpin's appeal, because Turpin also argues that the case should be remanded for clarification.

Eleventh Circuit Voices Disagreement Re Applicability of 3553 Safety-Valve to 3582 Procedings

A district court may not modify a term of imprisonment once it has been imposed, except in some cases where modification is expressly permitted by statute or Fed.R.Crim.P. 35. 18 U.S.C. § 3582(c)(1)(B). One circumstance in which modification is permitted is specified in 18 U.S.C. § 3582(c)(2), which grants “a district court ... discretion to reduce the term of imprisonment of an already incarcerated defendant when that defendant was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo, 203 F.3d 778, 780 (11th Cir.2000). The district court can reduce the sentence on its own motion and without a hearing. 18 U.S.C. § 3582(c)(2); Fed.R.Crim.P. 43(b)(4).

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant's sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

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We agree with the Ninth Circuit that section 3553(f)'s “references to the time of sentencing all support a construction requiring that the safety valve be applied only if the findings were made when the criminal was originally sentenced, as opposed to the later time when his sentence was reduced.” ^FN6 United States v. Stockdale, 129 F.3d 1066, 1068 (9th Cir.1997).

FN6. We must disagree with the circuits that have concluded that the safety-valve does apply in section 3582(c)(2) proceedings. See, e.g., United States v. Mihm, 134 F.3d 1353, 1355 (8th Cir.1998); United States v. Clark, 110 F.3d 15, 18 (6th Cir.1997).