     16-3172-cr
     United States v. Waden

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   2nd day of November, two thousand seventeen.
 4
 5   Present:        RALPH K. WINTER,
 6                   JOHN M. WALKER, JR.,
 7                   ROSEMARY S. POOLER,
 8
 9                           Circuit Judges.
10   _____________________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                                   Appellee,
15
16                            v.                                                16-3172-cr
17
18   RONALD DAVID WADEN,
19
20                           Defendant-Appellant.
21   _____________________________________________________
22
23   Appearing for Appellant:        ANNE M. BURGER, Assistant Federal Public Defender, Federal
24                                   Public Defender’s Office, Western District of New York,
25                                   Rochester, N.Y.
26
27   Appearing for Appellees:        JOSEPH J. KARASZEWSKI, Assistant United States Attorney,
28                                   for James P. Kennedy, Jr., Acting United States Attorney, Western
29                                   District of New York, Buffalo, N.Y.
30
31   Appeal from the United States District Court for the Western District of New York (Geraci, J.).



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 1
 2        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 3   AND DECREED that the judgment of said District Court be and it hereby is VACATED AND
 4   REMANDED.
 5
 6           Defendant-Appellant Ronald David Waden appeals the judgment of conviction entered
 7   against him on August 30, 2016 by the United States District Court for the Western District of
 8   New York (Geraci, J.), following a guilty plea by Waden to violating the terms of his supervised
 9   release. Waden, initially convicted of a sexual offense in 2008, challenges the district court’s
10   imposition of the condition that he undergo “mental health intervention specifically designed for
11   the treatment of sexual offenders as approved by the U.S. Probation Office,” as an impermissible
12   delegation of sentencing authority to the Probation Office. We assume the parties’ familiarity
13   with the underlying facts and procedural history.
14
15            The power to impose special conditions of supervised release is vested exclusively in the
16   district court. 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b), (d)(7). A district court may delegate to a
17   probation officer decisionmaking authority over certain minor details of supervised release.
18   United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001). However, “a district court may not
19   delegate to the Probation Department decisionmaking authority which would make a defendant’s
20   liberty itself contingent on a probation officer’s exercise of discretion.” United States v. Matta,
21   777 F.3d 116, 122 (2d Cir. 2015). “In other words, the extensive ‘supervision mission’ of federal
22   probation officers includes executing the sentence, but not imposing it.” Id. (citing United States
23   v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002) (internal quotation marks omitted)).
24
25            In Peterson, we found that the special condition that the defendant “is to enroll, attend
26   and participate in mental health intervention specifically designed for the treatment of sexual
27   predators as directed by the U.S. Probation Office” was impermissible, and remanded to the
28   district court for a determination as to whether the defendant would undergo such treatment. 248
29   F.3d at 84-85.
30
31           Waden challenges a nearly identical condition. The district court ordered that Waden
32   undergo mental health intervention designed for sexual offenders “as approved by the U.S.
33   Probation Office.” App’x at 47. Further, while in Peterson we were uncertain as to the intended
34   effect of this language, here, the sentencing hearing proceedings made plain that the condition
35   was attached for the purpose of affording the Probation Office the discretion to require Waden to
36   participate in the treatment “in case” the Probation Office found that Waden had engaged in
37   behavior similar to the conduct underlying his original sexual offense. App’x at 38-39. If the
38   Probation Office found that such behavior had occurred, the Probation Office would then
39   determine whether additional treatment was warranted.
40
41           We find that this condition requires the Probation Office to engage in fact finding that is
42   reserved to the trial court and, as in Peterson, is an improper delegation of sentencing authority.
43   To allow the Probation Office to determine whether Waden would undergo the treatment made
44   Waden’s “liberty itself contingent on a probation officer’s exercise of discretion.” Matta, 777
45   F.3d at 122.
46



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1           Accordingly, we VACATE that portion of the sentence and REMAND to the district
2   court to remove in full the condition that Waden undergo mental health intervention designed for
3   sexual offenders.
4
5                                                      FOR THE COURT:
6                                                      Catherine O’Hagan Wolfe, Clerk
7




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