Case: 20-11968 Date Filed: 09/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11968 Non-Argument Calendar ________________________
D.C. Docket No. 5:19-cr-00070-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON SCARBOROUGH,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(September 15, 2020)
Before WILSON, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
Aaron Scarborough appeals his 12 month and 1 day sentence for escape. On
appeal he challenges a third-party warning requirement imposed as a condition of Case: 20-11968 Date Filed: 09/15/2020 Page: 2 of 6
his supervised release. Scarborough first argues that the condition is
unconstitutionally vague and an unconstitutional delegation of judicial authority.
Second, he argues that the condition was not reasonably related or no greater a
deprivation of his liberty than necessary. We reject both arguments and affirm.
I.
Usually we review constitutional law questions de novo, but when raised for
the first time on appeal, we review them for plain error. United States v. Nash, 438
F.3d 1302, 1304 (11th Cir. 2006) (per curiam). Plain error requires: (1) an error;
(2) which was plain; and (3) the defendant’s substantial rights were affected. Id.
Where those preconditions are met, “we may reverse . . . if it ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Id. “A plain
error is an error that is ‘obvious’ and is ‘clear under current law.’” United States v.
Lange, 862 F.3d 1290, 1296 (11th Cir. 2017). “[T]here can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” Id. “In other words, [Scarborough] must show that some controlling
authority clearly established that the court erred in imposing the challenged
condition[].” United States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015).
When a defendant cannot meet a prong of plain error, we need not reach the other
plain error prongs. Id. at 1238–39. “Under the prior precedent rule, we are bound
to follow a prior binding precedent ‘unless and until it is overruled by this court en
2 Case: 20-11968 Date Filed: 09/15/2020 Page: 3 of 6
banc or by the Supreme Court.’” United States v. Vega-Castillo, 540 F.3d 1235,
1236 (11th Cir. 2008) (per curiam).
“A statute is void for vagueness under the Fifth Amendment’s Due Process
Clause if it ‘fails to provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.’” United States v. Ruggiero, 791 F.3d 1281, 1290
(11th Cir. 2015). The Supreme Court has held “that the advisory Guidelines are
not subject to vagueness challenges under the Due Process Clause.” Beckles v.
United States, 137 S. Ct. 886, 890 (2017). Beckles specifically addressed the
Guidelines’ residual clause, which defined a crime of violence. Id. The Court
further explained that it “ha[d] invalidated two kinds of criminal laws as ‘void for
vagueness’: laws that define criminal offenses and laws that fix the permissible
sentences for criminal offenses.” Id. at 892. The Guidelines though, only
“guide[d] the exercise of a court’s discretion in choosing an appropriate sentence
within the statutory range.” Id.
“To determine if a court improperly delegated the judicial authority of
sentencing, we have drawn a distinction between the delegation to a probation
officer of ‘a ministerial act or support service’ and ‘the ultimate responsibility’ of
imposing the sentence.” Nash, 438 F.3d at 1304–05. “Where the court makes the
determination of whether a defendant must abide by a condition, it is permissible
3 Case: 20-11968 Date Filed: 09/15/2020 Page: 4 of 6
to delegate to the probation officer the details of where and when the condition will
be satisfied.” Id. at 1305 (alterations accepted).
An issue in Nash was whether a special condition improperly delegated
judicial authority in a third-party warning condition. Id. at 1304, 1306. The
condition obligated Nash to “‘notify third parties of risks that may be occasioned
by Nash’s criminal record or personal history or characteristics’ ‘as directed by the
probation officer.’” Id. at 1306 (alterations accepted).1 We explained that the
language did not permit the probation officer to “unilaterally decide whether Nash
‘shall’ do” something, but that “[t]he probation officer may ‘direct’ when, where,
and to whom notice must be given.” Id. We held that it was not plain error to
impose this condition as it “direct[ed] the probation officer to oversee the
enforcement of Nash’s supervised release, but d[id] not relegate the ‘ultimate
responsibility’ of determining Nash’s sentence to the unfettered discretion of the
probation officer.” Id. We noted that the Sentencing Guidelines “specifically
recommended” the condition’s language as a supervised release term. Id.
Nash also considered the constitutionality of the third-party warning
condition under plain error, specifically whether it was “vague and overbroad
1 The full text of the condition was as follows: “As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.” Nash, 438 F.3d at 1304 (emphasis added). 4 Case: 20-11968 Date Filed: 09/15/2020 Page: 5 of 6
because it d[id] not state the risks, third parties, or history and characteristics that
would otherwise guide a probation officer in the enforcement of th[e] condition.”
See id. at 1303–04, 1306. We explained the requirements for imposing supervised
release conditions, specifically that they: (1) “are ‘reasonably related’ to the
sentencing factors”; (2) “involve no greater deprivation of liberty than is
reasonably necessary for the purposes set forth”; and (3) “are consistent with any
pertinent policy statements issued by the Sentencing Commission.” Id. at 1306–
07. We stated that “[c]onditions of supervised release are not vague and overbroad
when they are ‘undeniably related’ to the sentencing factors.” Id. at 1307. We
held that the condition “‘undeniably related’ to Nash’s” history and characteristics,
the offense’s circumstances and nature, and the need to protect the public from
Nash’s future crimes—which stemmed from some of the 18 U.S.C. § 3553(a)
factors a court could consider. See id. We also explained that “Nash’s convictions
inform[ed] the probation officer as to which parties ‘may be occasioned’ to be
harmed by Nash,” and “Nash’s criminal history and restitution obligation
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Case: 20-11968 Date Filed: 09/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11968 Non-Argument Calendar ________________________
D.C. Docket No. 5:19-cr-00070-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON SCARBOROUGH,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(September 15, 2020)
Before WILSON, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
Aaron Scarborough appeals his 12 month and 1 day sentence for escape. On
appeal he challenges a third-party warning requirement imposed as a condition of Case: 20-11968 Date Filed: 09/15/2020 Page: 2 of 6
his supervised release. Scarborough first argues that the condition is
unconstitutionally vague and an unconstitutional delegation of judicial authority.
Second, he argues that the condition was not reasonably related or no greater a
deprivation of his liberty than necessary. We reject both arguments and affirm.
I.
Usually we review constitutional law questions de novo, but when raised for
the first time on appeal, we review them for plain error. United States v. Nash, 438
F.3d 1302, 1304 (11th Cir. 2006) (per curiam). Plain error requires: (1) an error;
(2) which was plain; and (3) the defendant’s substantial rights were affected. Id.
Where those preconditions are met, “we may reverse . . . if it ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Id. “A plain
error is an error that is ‘obvious’ and is ‘clear under current law.’” United States v.
Lange, 862 F.3d 1290, 1296 (11th Cir. 2017). “[T]here can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” Id. “In other words, [Scarborough] must show that some controlling
authority clearly established that the court erred in imposing the challenged
condition[].” United States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015).
When a defendant cannot meet a prong of plain error, we need not reach the other
plain error prongs. Id. at 1238–39. “Under the prior precedent rule, we are bound
to follow a prior binding precedent ‘unless and until it is overruled by this court en
2 Case: 20-11968 Date Filed: 09/15/2020 Page: 3 of 6
banc or by the Supreme Court.’” United States v. Vega-Castillo, 540 F.3d 1235,
1236 (11th Cir. 2008) (per curiam).
“A statute is void for vagueness under the Fifth Amendment’s Due Process
Clause if it ‘fails to provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.’” United States v. Ruggiero, 791 F.3d 1281, 1290
(11th Cir. 2015). The Supreme Court has held “that the advisory Guidelines are
not subject to vagueness challenges under the Due Process Clause.” Beckles v.
United States, 137 S. Ct. 886, 890 (2017). Beckles specifically addressed the
Guidelines’ residual clause, which defined a crime of violence. Id. The Court
further explained that it “ha[d] invalidated two kinds of criminal laws as ‘void for
vagueness’: laws that define criminal offenses and laws that fix the permissible
sentences for criminal offenses.” Id. at 892. The Guidelines though, only
“guide[d] the exercise of a court’s discretion in choosing an appropriate sentence
within the statutory range.” Id.
“To determine if a court improperly delegated the judicial authority of
sentencing, we have drawn a distinction between the delegation to a probation
officer of ‘a ministerial act or support service’ and ‘the ultimate responsibility’ of
imposing the sentence.” Nash, 438 F.3d at 1304–05. “Where the court makes the
determination of whether a defendant must abide by a condition, it is permissible
3 Case: 20-11968 Date Filed: 09/15/2020 Page: 4 of 6
to delegate to the probation officer the details of where and when the condition will
be satisfied.” Id. at 1305 (alterations accepted).
An issue in Nash was whether a special condition improperly delegated
judicial authority in a third-party warning condition. Id. at 1304, 1306. The
condition obligated Nash to “‘notify third parties of risks that may be occasioned
by Nash’s criminal record or personal history or characteristics’ ‘as directed by the
probation officer.’” Id. at 1306 (alterations accepted).1 We explained that the
language did not permit the probation officer to “unilaterally decide whether Nash
‘shall’ do” something, but that “[t]he probation officer may ‘direct’ when, where,
and to whom notice must be given.” Id. We held that it was not plain error to
impose this condition as it “direct[ed] the probation officer to oversee the
enforcement of Nash’s supervised release, but d[id] not relegate the ‘ultimate
responsibility’ of determining Nash’s sentence to the unfettered discretion of the
probation officer.” Id. We noted that the Sentencing Guidelines “specifically
recommended” the condition’s language as a supervised release term. Id.
Nash also considered the constitutionality of the third-party warning
condition under plain error, specifically whether it was “vague and overbroad
1 The full text of the condition was as follows: “As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.” Nash, 438 F.3d at 1304 (emphasis added). 4 Case: 20-11968 Date Filed: 09/15/2020 Page: 5 of 6
because it d[id] not state the risks, third parties, or history and characteristics that
would otherwise guide a probation officer in the enforcement of th[e] condition.”
See id. at 1303–04, 1306. We explained the requirements for imposing supervised
release conditions, specifically that they: (1) “are ‘reasonably related’ to the
sentencing factors”; (2) “involve no greater deprivation of liberty than is
reasonably necessary for the purposes set forth”; and (3) “are consistent with any
pertinent policy statements issued by the Sentencing Commission.” Id. at 1306–
07. We stated that “[c]onditions of supervised release are not vague and overbroad
when they are ‘undeniably related’ to the sentencing factors.” Id. at 1307. We
held that the condition “‘undeniably related’ to Nash’s” history and characteristics,
the offense’s circumstances and nature, and the need to protect the public from
Nash’s future crimes—which stemmed from some of the 18 U.S.C. § 3553(a)
factors a court could consider. See id. We also explained that “Nash’s convictions
inform[ed] the probation officer as to which parties ‘may be occasioned’ to be
harmed by Nash,” and “Nash’s criminal history and restitution obligation
direct[ed] the probation officer to enforce this condition of her supervised release
with a view toward the prevention of future fraud and the fulfillment of her
restitution obligations.” Id. Given “Nash’s previous and current convictions and
the mandated restitution,” the condition was not vague or overbroad. Id.
5 Case: 20-11968 Date Filed: 09/15/2020 Page: 6 of 6
Finally, Condition 12 comes from U.S.S.G. § 5D1.3(c), a list of “‘standard’
conditions” that the Guidelines “recommend[] for supervised release.” U.S.S.G.
§ 5D1.3(c), p.s. Condition 12 is not included in 18 U.S.C. § 3583’s list of required
conditions.
We make quick work of Scarborough’s constitutional claims. As he raised
them for the first time on appeal, we review them for plain error. See Nash, 438
F.3d at 1304. Though the phrasing of the third-party warning condition has
changed somewhat, nothing has undermined Nash to the point of abrogation. It
thus remains binding law in our circuit. See United States v. Vega-Castillo, 540
F.3d at 1236. And since Nash remains good law, Scarborough cannot show that
the district court committed plain error on either of his constitutional grounds.
II.
When an appellant challenges supervised release terms for the first time on
appeal, we review the terms for plain error. Nash, 438 F.3d at 1304.
Because Scarborough challenges his third-party warning condition for the
first time on appeal, plain error review applies. He has not shown that any
controlling authority clearly established that the district court erred by imposing
the third-party warning condition. So any error, if such error exists, would not be
plain. We need not, and decline to, reach the other plain error prongs.
AFFIRMED.