UNITED STATES OF AMERICA, No. 21-10070

Plaintiff-Appellee, D.C. No. 1:19-cr-00107-HG-1

v. OPINION JERRE NISHIDA,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Argued and Submitted February 16, 2022 Honolulu, Hawaii Before: Michael Daly Hawkins, Ryan D. Nelson, and Danielle J. Forrest, Circuit Judges.

Opinion by Judge Forrest; Dissent by Judge R. Nelson SUMMARY *

Criminal Law

The panel vacated two special conditions of supervised release and remanded for resentencing so that the district court can clarify the scope of authority delegated to the probation officer.

The special conditions charge the probation officer, in consultation with the treatment provider, with supervising the defendant’s participation in mental-health and substance-abuse treatment programs, including the duration and intensity of the programs. The defendant argued on appeal that the treatment conditions are unlawful because they purport to delegate to the probation officer authority to determine her punishment, which is a function reserved exclusively for the court.

The defendant did not contest that she knowingly and voluntarily waived her “right to assert any and all legally waivable claims,” and the panel rejected the defendant’s argument that the district court’s statements about her ability to appeal vitiated her appeal waiver. The panel noted that when a defendant with an otherwise valid appeal waiver challenges the legality of her sentence, the claim as to waiver rises and falls with the claim on the merits. The panel reviewed for plain error whether the treatment conditions, which the defendant did not challenge in the district court, are illegal.

Rejecting the defendant’s argument that the condition allows the probation officer to impose an indefinite term of treatment, the panel concluded that the defendant’s sentence facially confines her treatment conditions to her five-year term of supervised release and does not impermissibly delegate to the probation officer the power to determine a length of punishment by the term set by the court. The panel then addressed the defendant’s argument that the district court improperly delegated authority over the “nature and extent” of her punishment by giving the probation officer discretion to determine whether she must participate in inpatient or outpatient treatment. The panel wrote that whether a defendant must participate in inpatient treatment is a determination of the nature or extent of the punishment,

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. which cannot be delegated to a nonjudicial officer. And that while the record is not definitive regarding the district court’s intent, the words that it used give the probation officer (in consultation with the treatment provider) discretion to require inpatient or outpatient treatment. Thus, the district court committed plain error affecting the defendant’s substantial rights because she must comply with the conditions or face revocation of her supervised release. The panel therefore vacated the substance-abuse and mental-health treatment conditions and remanded for resentencing so that the district court can clarify the scope of authority delegated to the probation officer consistent with this opinion.

Dissenting, Judge R. Nelson wrote that the conditions only allow the probation officer to supervise–not assign–the defendant’s treatment; they do not give the probation officer impermissible discretion to order inpat