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

FILED December 10, 2021 No. 20-10491 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Tina Carol Ortega,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-95-2

Before Davis, Higginson, and Engelhardt, Circuit Judges. Kurt D. Engelhardt, Circuit Judge: This case requires the court to determine whether the district court plainly erred in imposing a special condition of supervised release on Defendant-Appellant Tina Ortega. Because the district court committed no error whatsoever—much less a plain one—we AFFIRM. I. Tina Ortega pled guilty to possession of stolen mail in 2016. While on supervised release in 2019, Ortega admitted to a set of drug violations. The district court revoked Ortega’s supervised release and sentenced her to an Case: 20-10491 Document: 00516124971 Page: 2 Date Filed: 12/10/2021

No. 20-10491

additional two years in prison and one year of supervised release. At issue here is a special condition the district court imposed as part of Ortega’s latter one-year term of supervised release. The condition in question requires Ortega to “reside in [a] Reentry Center and successfully participate in [a] Residential Reentry Program for a period of at least 4 months to be released at the direction of the probation officer.” It further directs Ortega to “initially participate in [the Reentry Program’s] community corrections component,” but provides that Ortega “may become eligible the last one-third of the term of confinement for placement in [the Program’s] prelease component upon approval of the program review team and provided that [Ortega] meets all of the center’s requirements.” Ortega did not object to the condition at the time of its pronouncement, but now argues that the anodyne condition “impermissibly delegated authority to the probation officer by allowing the probation officer to determine the duration of a residential treatment program.” 1 As explained below, this contention fails. II. Both sides agree that our review is for plain error. See United States v. Huerta, 994 F.3d 711, 715 (5th Cir. 2021) (“[W]e review forfeited challenges for plain error. A defendant forfeits a challenge to a condition of supervised

1 We have repeatedly held that “a district court cannot delegate to a probation officer the ‘core judicial function’ of imposing a sentence, ‘including the terms and conditions of supervised release.’” United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (per curiam) (quoting United States v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016)). Premised on this longstanding rule, Ortega’s argument is straightforward: Because the decision of “How much longer [Ortega] will be locked up” in a residential reentry facility “will be entirely up to probation,” the district court violated the foregoing nondelegation principle by assigning “probation enormous authorit