Case: 16-50154      Document: 00514130142         Page: 1    Date Filed: 08/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-50154                                FILED
                                  Summary Calendar                        August 24, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMMANUEL EMIL BAILEY, also known as Emmanuel Bailey, also known as
Jermaine Jamal Lyons, also known as Mobban, also known as Young Mobban,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:15-CR-148-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Emmanuel Emil Bailey pleaded guilty to transportation of an individual
in interstate commerce with the intent that such individual engage in
prostitution or sexual activity in violation of 18 U.S.C. § 2421. The district
court sentenced Bailey to 84 months of imprisonment, three years of
supervised release, and a $1,000 fine. On appeal, Bailey challenges four of the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-50154    Document: 00514130142     Page: 2   Date Filed: 08/24/2017


                                 No. 16-50154

standard conditions of supervised release included in the written judgment but
not orally pronounced at sentencing as impermissible delegations of judicial
authority to the probation officer.
      Because Bailey did not have an opportunity to object to the challenged
standard conditions of supervised release at sentencing, this court’s review of
those conditions is for abuse of discretion. United States v. Rouland, 

, 735 (5th Cir. 2013). The imposition of supervised release conditions and
terms “is a core judicial function that cannot be delegated.” United States v.
Franklin, 

, 568 (5th Cir. 2016) (internal quotation marks and
citations omitted). Bailey argues that the district court erred by imposing
standard conditions of supervised release requiring him to participate in
programs for substance abuse treatment, mental health treatment, cognitive
behavioral treatment, and workforce development “if deemed necessary by the
probation officer.” We have held that such language “creates an ambiguity
regarding whether the district court intended to delegate authority not only to
implement treatment but to decide whether treatment was needed.”              

marks and citation omitted).
      Bailey also asserts that the district court impermissibly delegated its
judicial authority to the probation officer to ascertain whether he should pay
the costs of his participation in the substance abuse treatment, mental health
treatment, cognitive behavioral treatment, and workforce development
programs and, if so, the amount he should pay.              This argument is
unpersuasive. In United States v. Warden, 

, 365-66 (5th Cir.
2002), we held that the imposition of special conditions relating to a
determination of a defendant’s ability to pay the costs of drug treatment and
other programs does not constitute an unlawful delegation of authority to the
probation officer.



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                                 No. 16-50154

      Accordingly, we VACATE the substance abuse treatment, mental health
treatment, cognitive behavioral treatment, and workforce development
conditions and REMAND to the district court for resentencing, with the same
clarifying instruction offered in Franklin:
      If the district court intends that the therapy be mandatory but
      leaves a variety of details, including the selection of a therapy
      provider and schedule to the probation officer, such a condition of
      probation may be imposed. If, on the other hand, the court intends
      to leave the issue of the defendant’s participation in therapy to the
      discretion of the probation officer, such a condition would
      constitute an impermissible delegation of judicial authority and
      should not be included.

(citation omitted).




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