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5th CIRCUIT SAYS IMPROPER DELEGATION OF COURT’S AUTHORITY “DEPENDS”
About 15 years ago, Brent Dubois got 151 months in federal prison for a drug trafficking offense. When he was released, he began a three-year term of supervised release, one condition of which was that he participate in a substance abuse program. The court authorized Brent’s probation officer to decide whether the program would be inpatient or outpatient.
The PO put him in an outpatient substance abuse program, but Brent turned out to be less than a model student. Almost immediately, he had difficulty staying enrolled, leading to several supervised release revocation petitions and different substance abuse programs.
The court tried in vain to adjust his conditions to foster success. When Brent’s probation officer filed a fourth petition for revocation in late 2024, Brent admitted that he had quit his latest substance abuse program and was using methamphetamine. The district court reluctantly sentenced him to ten months in prison followed by 32 months of supervised release, and again ordered that he “participate in a program (inpatient and/or outpatient) approved by the probation office for treatment of narcotic or drug or alcohol dependency…”
On appeal, Brent complained that allowing the probation officer to decide whether his substance abuse program should be inpatient or outpatient was an impermissible delegation of the court’s sentencing authority that violated Brent’s rights.
Last Monday, the 5th Circuit agreed.
A district court must always have “the final say on whether to impose a condition,” the Circuit ruled. While a “probation officer’s authority extends to the modality, intensity, and duration of a treatment condition, it ends when the condition involves a significant deprivation of liberty.” Confinement in an inpatient program implicates “significant liberty interests,” the 5th held, meaning that “the decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers.”
But there are exceptions. When the prison sentence is short, a sentencing court, with “relative clarity because supervision is to commence relatively soon,” can forecast which kind of treatment – inpatient or outpatient – will better suit a defendant.” While “the precise line dividing permissible and impermissible delegations may be unclear, our opinions conclusively establish (1) ten months is sufficient to show an impermissible delegation and (2) ten years is insufficient to make the same showing.”
Here, Brent’s revocation sentence was only ten months, “a sufficiently short sentence to demonstrate an impermissible delegation.” The Circuit set aside the delegation of authority to the probation officer.
Despite its self-congratulatory claim to having done so, the Circuit strained to harmonize two inconsistent Circuit precedents (Martinez and Medel-Guadalupe, issued the same day). One declared a delegation to decide substance abuse program decisions to the probation office was permissible and the other decided it was not.
The takeaway is that the 5th believes that a deprivation of liberty on supervised release without involvement of the sentencing court isn’t as much of a big deal when the defendant has been in prison for a long time first. The dividing line of what is too short a sentence and too long a sentence isn’t clear, but – like Justice Potter Stewart’s famous explanation of what is obscenity – the sentencing judge is expected to be able to say I “know it when I see it.”
The Supreme Court’s repeated emphasis that supervised release is not punishment but rather an aid to the defendant’s reintegration into the community should make deprivations of liberty on supervised release a bigger deal rather than a lesser one. Just two months ago, Justice Jackson asked during an oral argument (at page 4) whether
isn’t the whole — the reason why supervised release is sort of fundamentally different than parole or — or probation or imprisonment is because it’s not imposed for punishment. It’s supposed to be about helping this person reintegrate into society…
That suggests that the standard adopted by the 5th Circuit – that is, ‘it depends on how long you’ve been locked up’ – is not very defensible.
United States v. Dubois, Case No. 24-11046, 2026 U.S. App. LEXIS 831 (5th Cir. Jan. 13, 2026)
Rico v. United States, Case No. 24-1056, Oral Argument Transcript
United States v. Martinez, 987 F.3d 432 (5th Cir. 2021)
United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. 2021)
Jacobellis v. Ohio, 378 U.S. 184 (1964)
~ Thomas L. Root
