Sentencing; Special conditions on supervised release; Whether special conditions improperly delegated judicial power to the probation officer

The court held that the district court did not improperly delegate its judicial authority by failing to cap required substance-abuse testing, by not specifying whether mental-health treatment was to be outpatient or inpatient, or by requiring participation “‘in a program of testing and/or treatment for drug and/or alcohol abuse’” in imposing special conditions on defendant-Vaughn’s supervised release. The first supervised release special condition he complained of provided that “Vaughn ‘shall participate in a program of testing and/or treatment for drug and/or alcohol abuse as directed by the probation officer until such time as the defendant is released from the program by the probation officer.’” He claimed that this gave “the probation officer the power to determine drug-testing frequency and whether he must receive alcohol treatment.” He asserted that the judge’s failure to cap the number of tests constituted an improper delegation of judicial power. But the court explained that “testing caps apply only to mandatory conditions—not special conditions. . . . When district courts decide to impose drug testing through a special condition, they fulfill their statutory and Article III duties so long as the court ‘decide[s] whether treatment is required.’” Thus, they are permitted to “leave program implementation to probation officers.” The court noted that courts “satisfy the special-condition requirement by employing the triggering ‘shall participate’ language within the condition, requiring defendants to participate in substance-abuse testing and treatment.” Additionally, the district court “created a safeguard. If Vaughn considers probation’s drug-testing schedule too burdensome, the district court ‘would be happy to consider giving the probation office some guidance on that when it comes up.’” As to alcohol treatment, he did “not cite authority to support his treatment-specification claim nor show how a ‘generic substance-abuse program would impose any significant burdens on him because it covered alcohol-abuse treatment.’” Reviewing his claim as to the second special condition concerning mental health treatment programs for plain error, the court noted “circuits are split on this inpatient-outpatient claim” and such a split precludes a plain error finding. So does the absence of binding case law, and the court has none “holding that a district court cannot allow the probation officer to decide whether inpatient treatment will be required.” The court found persuasive an unpublished opinion in a case that mirrored this one, which held “that this inpatient-outpatient claim does not overcome the plain-error standard.” Affirmed.