LOHIER, Circuit Judge:
The principal issue we are asked to consider on this appeal is whether a sentencing court may delegate its sentencing authority to the United States Probation Department
In 2007 Matta pleaded guilty to being a felon in possession of a firearm and was sentenced principally to 36 months' imprisonment and three years of supervised release. In August 2012 Matta was released
On September 5, 2013, the Probation Department issued a final VOSR report describing New York State charges that had been filed against Matta after an incident on August 31, 2013, in which Matta reportedly threatened a female friend with a knife while intoxicated and kicked down her apartment door after she refused to let him into the apartment. Although New York eventually dismissed these charges, the Probation Department charged Matta with three violations relating to the incident: menacing ("Charge Eight"), criminal mischief ("Charge Nine"), and possession of a weapon ("Charge Ten").
In August 2013 the District Court found Matta guilty of Charges One through Three and revoked his supervised release.
After accepting Matta's guilty plea, the District Court, with the consent of the parties, proceeded immediately to sentencing. At sentencing Matta's counsel raised the issue of Matta's prior drug use and the appropriateness of drug treatment, remarking that while "maybe drug testing and treatment, special condition is appropriate, I don't think it would be appropriate at this time to order a condition of inpatient treatment." Joint App'x at 116. After determining that Matta's Sentencing Guidelines range was 8 to 14 months — a calculation uncontested by either party — the District Court proceeded to review the factors listed in 18 U.S.C. § 3553(a). In particular, the court considered the events of August 31, 2013 that gave rise to the dismissed charges against Matta:
Joint App'x at 119-20.
The District Court sentenced Matta principally to a term of imprisonment of 24 months,
This appeal followed.
In addition to attacking the reasonableness of his sentence, Matta argues that the District Court impermissibly delegated its sentencing authority by allowing the Probation Department to determine whether he should undergo inpatient or outpatient drug treatment as a condition of supervised release. Because we agree that the delegation was impermissible for the reasons explained below, we vacate that portion of the sentence and remand to the District Court to determine for itself whether such treatment, if still necessary, should be on an inpatient or outpatient basis.
As an initial matter, the Government points out that Matta failed to object to the District Court's delegation and argues that we should review it for plain error. It urges that on plain error review Matta's argument fails because there was no clear precedent preventing the District Court's delegation; in other words, the error was not "plain." We appreciate that Matta failed to object to this particular condition of supervised release at sentencing, and we agree with the Government that under those circumstances we ordinarily review for plain error. United States v. Green, 618 F.3d 120, 122 (2d Cir.2010) ("Generally, we review conditions of supervised release for abuse of discretion. When the defendant does not object to the conditions, however, we review only for plain error." (citation omitted)). But plain error review is not always warranted in the sentencing context. We have explained that "the plain error doctrine should not be applied stringently in the sentencing context, where the cost of correcting an unpreserved error is not as great as in the trial context." United States v. Gamez, 577 F.3d 394, 397 (2d Cir.2009) (citing United States v. Williams, 399 F.3d 450, 456-57 (2d Cir. 2005)). And so we have employed a "relaxed" form of plain error review in those rare cases in which the defendant lacked sufficient prior notice that a particular condition of supervised release might be imposed. See Green, 618 F.3d at 122; United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir.2002).
Here, we conclude that Matta did not have a sufficient opportunity to raise a
We turn next to the merits of Matta's challenge to the District Court's delegation. The power to impose special conditions of supervised release, including participation in a substance abuse program, is vested exclusively in the district court. See 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b), (d)(4). It is true that a district court may delegate to a probation officer decisionmaking authority over certain minor details of supervised release — for example, the selection of a therapy provider or treatment schedule. See United States v. Peterson, 248 F.3d 79, 85 (2d Cir.2001). But a district court may not delegate to the Probation Department decisionmaking authority which would make a defendant's liberty itself contingent on a probation officer's exercise of discretion. See id. For example, if, as a special condition of supervised release, a defendant is "required to participate in a [substance abuse] intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer." Id. In other words, the extensive "supervision mission" of federal probation officers includes "execut[ing] the sentence," United States v. Reyes, 283 F.3d 446, 456 (2d Cir.2002) (emphasis omitted), but not imposing it.
There is no dispute that, in the context of supervised release at least, inpatient drug treatment programs are sufficiently more restrictive than outpatient programs that the difference between the two programs might be said to be the difference between liberty and the loss of liberty. In inpatient drug treatment, the offender can remain at a designated facility 24 hours each day for several months, unable to hold a job or regularly commune with friends and family. In outpatient drug treatment, by contrast, the same offender can reside at home and hold a job. See Nat'l Inst. on Drug Abuse, Principles of Drug Addiction Treatment 33-35 (3d ed.2012).
Because of these differences, the Ninth and Tenth Circuits, the only other circuits to have considered the issue in precedential opinions, have held that district courts may not delegate to the Probation Department the decision to require inpatient or outpatient treatment.
We agree with both of our sister circuits that, "[i]n light of this difference [between inpatient and outpatient treatment],... granting the probation officer the discretion to decide whether such conditions will be imposed is tantamount to allowing him to decide the nature or extent of the defendant's punishment," and that "any condition that affects a significant liberty interest, such as one requiring the defendant to participate in residential treatment ... must be imposed by the district court and supported by particularized findings that it does not constitute a greater deprivation of liberty than reasonably necessary to accomplish the goals of sentencing." Mike, 632 F.3d at 695-96; see Esparza, 552 F.3d at 1091 (vacating condition of supervised release that delegated discretion to probation officer); see also 18 U.S.C. § 3583(d)(2).
Applying "relaxed" plain error review, we conclude that the District Court's delegation to the Probation Department of the discretion to require either inpatient or outpatient drug treatment was an impermissible delegation of judicial sentencing authority. We therefore vacate that portion of the sentence and remand to the District Court to impose inpatient or out-patient treatment as a special condition of supervised release, if necessary.
Matta also argues that his sentence unlawfully exceeds the statutory maximum of 24 months' imprisonment because his 24-month term of imprisonment is to be followed by four months in a residential reentry center as a special condition of supervised release. We reject Matta's argument for two reasons.
First, 18 U.S.C. § 3583(d) specifically authorizes district courts to require defendants to "reside at, or participate in the program of, a community corrections facility" as a special condition of supervised release. 18 U.S.C. § 3563(b)(11); see id. § 3583(d) (granting the district court the authority to order as a condition of supervised release "any condition set forth as a discretionary condition of probation in section 3563(b)"). Because Matta's four months in a residential reentry center was imposed as a condition of supervised release, and supervised release necessarily follows incarceration, Matta's sentence is authorized by statute.
Second, 18 U.S.C. § 3583(e) sets the statutory maximum as a cap only on time spent "in prison." Id. § 3583(e). Residential reentry is a form of community confinement, not a form of home confinement or an extension of prison. Indeed, residential reentry centers are sometimes referred to as "community confinement" facilities, see U.S.S.G. § 5F1.1, or "halfway houses," as Matta himself described them during his sentencing, Joint App'x at 110. We have emphasized that "`[i]mprisonment' and `community confinement' are not synonyms. `Imprisonment' is the condition of being removed from the community and placed in prison, whereas `community confinement' is the condition of being controlled and restricted within the community." United States v. Adler, 52 F.3d 20, 21 (2d Cir.1995). As a form of community
Lastly, Matta challenges his 24-month term of imprisonment as both procedurally and substantively unreasonable.
Procedural reasonableness focuses on whether a district court "fails to calculate the Guidelines range ..., makes a mistake in its Guidelines calculation, ... treats the Guidelines as mandatory ... [,] does not consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact." United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). Substantive reasonableness "focuses on a district court's explanation of its sentence in light of the factors contained in 18 U.S.C. § 3553(a)." United States v. Gonzalez, 529 F.3d 94, 98 (2d Cir.2008). "In examining the substantive reasonableness of a sentence, we review the length of the sentence imposed to determine whether it `cannot be located within the range of permissible decisions.'" United States v. Rubin, 743 F.3d 31, 39 (2d Cir.2014) (quoting United States v. Watkins, 667 F.3d 254, 261 (2d Cir.2012)); see United States v. Park, 758 F.3d 193, 199 (2d Cir.2014) ("[O]ur substantive review of a sentence is akin to review under an `abuse-of-discretion' standard, a form of review with which appellate courts are long familiar."). With these principles in mind, we conclude that Matta's sentence of imprisonment was neither procedurally nor substantively unreasonable.
In pressing his claim of procedural unreasonableness, Matta argues that the District Court should not have considered conduct relating to the dismissed charges from the August 31, 2013 incident. We review this claim for plain error because Matta failed to raise it before the District Court at sentencing even though he had the opportunity to do so. We barely discern error, let alone plain error, in the court's brief reference to the August 31 incident. The reference constituted a negligible part of the sentencing record. In referring to the incident, moreover, the District Court explained that its sentence rested on several factors surrounding Matta's violations and that it was well aware that Matta's conduct on August 31 resulted in "charges [that] were dismissed." Joint App'x at 119. Moreover, the court referred to the August 31 incident not as a violation or "charge," but as yet another example of a situation involving Matta, a woman, and violence.
We also reject Matta's challenge to his sentence as substantively unreasonable on the ground that his 24-month term of imprisonment exceeded the recommended
For the foregoing reasons, we VACATE and REMAND with respect to the challenged condition of supervised release, and otherwise AFFIRM the sentence.