United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 8, 2021 No. 20-20148 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Abran Martinez,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-34-1

Before Elrod, Duncan, and Wilson, Circuit Judges. Jennifer Walker Elrod, Circuit Judge: We WITHDRAW the prior opinion filed October 27, 2020 and substitute the following. The district court modified the conditions of supervised release for Appellant Abran Martinez to include the provision that Martinez “participate in an inpatient or outpatient substance-abuse treatment program” supervised by Martinez’s probation officer. Because the option to require inpatient rehabilitation delegates to the probation officer the judicial decision to significantly restrict Martinez’s liberty during treatment, we Case: 20-20148 Document: 00515737426 Page: 2 Date Filed: 02/08/2021

No. 20-20148

VACATE that condition of supervised release and REMAND to the district court for further proceedings consistent with this opinion.

I. Martinez pleaded guilty to unlawful escape after he failed to return to a halfway house at the end of a workday. Martinez began serving the supervised-release portion of his sentence for that offense in August of 2018. In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. The modification required Martinez to “participate in a program of testing and treatment for drug abuse.” Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. At the revocation hearing for this petition, Martinez’s counsel said that Martinez “would be the first to admit there are times that he struggles with substance abuse.” Martinez’s substance-abuse struggles sparked the following dialogue between the district court and Martinez: [THE COURT:] It seems to me—you know, I may be off base, or maybe not—that you’re your own worst enemy. You walked away from a halfway house; that got you the escape charge. You failed to report. You’ve done, you know, cocaine on a number of occasions. And I understand how hard sometimes those habits are to break. But, you know, as a judge, we can order drug treatment, we can order all these different things to try to help, but you’re the only one that can make that decision for yourself. You need to really take it to heart. . . . I’m going to sentence you, but I’m also going to recommend to the Bureau of Prisons that you participate in the drug treatment program. When you get out, I want you to participate in the drug treatment program.

2 Case: 20-20148 Document: 00515737426