USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10820 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TOBY E. BIVINS,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:11-cr-00019-HL-TQL-1 USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 2 of 7
2 Opinion of the Court 22-10820
Before JORDAN, ANDERSON and DUBINA, Circuit Judges. PER CURIAM: Appellant Toby Bivins appeals his sentence imposed by the district court following the third revocation of Bivins’s term of su- pervised release. Bivins specifically challenges Standard Conditions 8 and 12, which the district court imposed on him as conditions of supervised release under U.S.S.G. §§ 5D1.3(c)(8) and (12). For the first time on appeal, Bivins argues that the district court erred in failing to except his boyfriend from Standard Condition 8, which restricts a sentenced individual, on supervised release, from inter- acting and communicating with known felons or persons involved in criminal activity. He also argues, for the first time on appeal, that the district court erred in imposing Standard Conditions 8 and 12 in his supervised release because those conditions unconstitu- tionally delegate judicial authority to a probation officer. Having read the parties’ briefs and reviewed the record, we affirm Bivins’s sentence. I. Generally, we review the terms of supervised release for an abuse of discretion. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). However, when a defendant fails to object to a condition of supervised release before the district court, we will re- view for plain error only. Id. To preserve for appeal a challenge to a condition of supervised release, a defendant must “clearly state USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 3 of 7
22-10820 Opinion of the Court 3
the grounds for an objection in the district court.” United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). Plain error occurs when (1) there was an error, (2) that was plain, (3) that affected the defendant’s substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Presendieu, 880 F.3d 1228, 1237-38 (11th Cir. 2018). “When neither this Court nor the Supreme Court ha[s] resolved an issue, there can be no plain error in regard to that issue.” United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019). II. When a district court finds that a defendant violated a con- dition of supervised release, the district court may revoke the term of supervised release and impose a term of imprisonment after con- sidering the 18 U.S.C. § 3553(a) factors. 18 U.S.C. § 3583(e). A dis- trict court may also impose a term of supervised release in addition to a sentence of imprisonment. 18 U.S.C. § 3583(h). Further, a dis- trict court may impose conditions of supervised release in accord- ance with the classes of conditions specified in U.S.S.G. § 5D1.3, in- cluding “standard” conditions set forth in U.S.S.G. § 5D1.3(c). United States v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003). The standard conditions “are recommended for supervised re- lease,” and “[s]everal of the conditions are expansions of the condi- tions required by statute.” U.S.S.G. § 5D1.3(c). As expressed in § 5D1.3(c), Standard Condition 8 provides: USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 4 of 7
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The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or in- teract with that person without first get- ting the permission of the probation of- ficer. Id. § 5D1.3(c)(8) (emphasis added). The record shows that Bivins did not state clearly an objec- tion to Standard Condition 8 on the grounds he asserts on appeal. Rather, his only objection in the district court was to the district court’s upward variance from the applicable guideline range. Bivins contends on appeal that the district court erred by imposing Standard Condition 8 because it was not reasonably related to the sentencing factors found in 18 U.S.C. § 3553(a) and because except- ing his boyfriend, a convicted felon, from the scope of that condi- tion would not have been inconsistent with any policy statement of the Sentencing Commission. Bivins cannot show that the district court’s inclusion of his boyfriend, a convicted felon, within the scope of Standard Condi- tion 8 is an error that is plain. He has cited no binding precedent from this Court or the Supreme Court that holds that a district court errs by failing to exclude an individual from Standard Condi- tion 8 under these circumstances. Thus, Bivins’s challenge fails be- cause he cannot show the district court plainly erred in this regard. USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 5 of 7
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Vereen, 920 F.3d at 1312. Moreover, Bivins cannot demonstrate that the district court abused its discretion when it imposed this condition because the record shows that the district court consid- ered and weighed the relevant sentencing factors in imposing Bivins’s term of supervised release and its associated conditions. This acknowledgement by the district court will suffice, and we discern no abuse of discretion. See United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007); United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) (noting that our court does not substi- tute its judgment in weighing the relevant factors under section 3553(a)). Accordingly, we affirm the district court’s imposition of these conditions to Bivins’s supervised release term. III. When appropriate, we will review constitutional issues de novo. Nash, 438 F.3d at 1304. However, when the defendant fails to object before the district court, this Court will review for plain error only. Id. As expressed in U.S.S.G. § 5D1.3(c), Standard Condition 12 provides: If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the de- fendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 6 of 7
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may contact the person and confirm that the defendant has notified the per- son about the risk. U.S.S.G. § 5D1.3(c)(12) (emphasis added).
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USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10820 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TOBY E. BIVINS,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:11-cr-00019-HL-TQL-1 USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 2 of 7
2 Opinion of the Court 22-10820
Before JORDAN, ANDERSON and DUBINA, Circuit Judges. PER CURIAM: Appellant Toby Bivins appeals his sentence imposed by the district court following the third revocation of Bivins’s term of su- pervised release. Bivins specifically challenges Standard Conditions 8 and 12, which the district court imposed on him as conditions of supervised release under U.S.S.G. §§ 5D1.3(c)(8) and (12). For the first time on appeal, Bivins argues that the district court erred in failing to except his boyfriend from Standard Condition 8, which restricts a sentenced individual, on supervised release, from inter- acting and communicating with known felons or persons involved in criminal activity. He also argues, for the first time on appeal, that the district court erred in imposing Standard Conditions 8 and 12 in his supervised release because those conditions unconstitu- tionally delegate judicial authority to a probation officer. Having read the parties’ briefs and reviewed the record, we affirm Bivins’s sentence. I. Generally, we review the terms of supervised release for an abuse of discretion. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). However, when a defendant fails to object to a condition of supervised release before the district court, we will re- view for plain error only. Id. To preserve for appeal a challenge to a condition of supervised release, a defendant must “clearly state USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 3 of 7
22-10820 Opinion of the Court 3
the grounds for an objection in the district court.” United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). Plain error occurs when (1) there was an error, (2) that was plain, (3) that affected the defendant’s substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Presendieu, 880 F.3d 1228, 1237-38 (11th Cir. 2018). “When neither this Court nor the Supreme Court ha[s] resolved an issue, there can be no plain error in regard to that issue.” United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019). II. When a district court finds that a defendant violated a con- dition of supervised release, the district court may revoke the term of supervised release and impose a term of imprisonment after con- sidering the 18 U.S.C. § 3553(a) factors. 18 U.S.C. § 3583(e). A dis- trict court may also impose a term of supervised release in addition to a sentence of imprisonment. 18 U.S.C. § 3583(h). Further, a dis- trict court may impose conditions of supervised release in accord- ance with the classes of conditions specified in U.S.S.G. § 5D1.3, in- cluding “standard” conditions set forth in U.S.S.G. § 5D1.3(c). United States v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003). The standard conditions “are recommended for supervised re- lease,” and “[s]everal of the conditions are expansions of the condi- tions required by statute.” U.S.S.G. § 5D1.3(c). As expressed in § 5D1.3(c), Standard Condition 8 provides: USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 4 of 7
4 Opinion of the Court 22-10820
The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or in- teract with that person without first get- ting the permission of the probation of- ficer. Id. § 5D1.3(c)(8) (emphasis added). The record shows that Bivins did not state clearly an objec- tion to Standard Condition 8 on the grounds he asserts on appeal. Rather, his only objection in the district court was to the district court’s upward variance from the applicable guideline range. Bivins contends on appeal that the district court erred by imposing Standard Condition 8 because it was not reasonably related to the sentencing factors found in 18 U.S.C. § 3553(a) and because except- ing his boyfriend, a convicted felon, from the scope of that condi- tion would not have been inconsistent with any policy statement of the Sentencing Commission. Bivins cannot show that the district court’s inclusion of his boyfriend, a convicted felon, within the scope of Standard Condi- tion 8 is an error that is plain. He has cited no binding precedent from this Court or the Supreme Court that holds that a district court errs by failing to exclude an individual from Standard Condi- tion 8 under these circumstances. Thus, Bivins’s challenge fails be- cause he cannot show the district court plainly erred in this regard. USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 5 of 7
22-10820 Opinion of the Court 5
Vereen, 920 F.3d at 1312. Moreover, Bivins cannot demonstrate that the district court abused its discretion when it imposed this condition because the record shows that the district court consid- ered and weighed the relevant sentencing factors in imposing Bivins’s term of supervised release and its associated conditions. This acknowledgement by the district court will suffice, and we discern no abuse of discretion. See United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007); United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) (noting that our court does not substi- tute its judgment in weighing the relevant factors under section 3553(a)). Accordingly, we affirm the district court’s imposition of these conditions to Bivins’s supervised release term. III. When appropriate, we will review constitutional issues de novo. Nash, 438 F.3d at 1304. However, when the defendant fails to object before the district court, this Court will review for plain error only. Id. As expressed in U.S.S.G. § 5D1.3(c), Standard Condition 12 provides: If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the de- fendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 6 of 7
6 Opinion of the Court 22-10820
may contact the person and confirm that the defendant has notified the per- son about the risk. U.S.S.G. § 5D1.3(c)(12) (emphasis added). In determining whether a court has 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 (citation omitted). “Although a probation officer is an arm of the court, and is statutorily man- dated to perform any duty that the court may designate, Article III courts may not delegate the ultimate responsibility of judicial func- tions to probation officers.” Id. at 1305 (quotation marks, altera- tions, and citations omitted). However, “[b]ecause probation offic- ers play a vital role in effectuating the sentences imposed by district courts, courts may delegate duties to probation officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility.” Id. (quotation marks and citation omit- ted). “We have upheld conditions of supervised release that une- quivocally impose a requirement on the defendant, but subject the defendant to the ‘approval’ or ‘direction’ of a probation officer.” Id. Additionally, in Nash, we held that the district court did not improperly delegate a judicial function to a probation officer in im- posing a condition that Nash “notify third parties of risks that may be occasioned by [Nash’s] criminal record or personal history or USCA11 Case: 22-10820 Document: 28-1 Date Filed: 01/20/2023 Page: 7 of 7
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characteristics as directed by the probation officer.” Id. at 1306 (quotation marks and emphasis omitted). The record indicates that Bivins did not object to the consti- tutionality of Standard Condition 8 or 12 before the district court. Thus, we review Bivins’s constitutional arguments for plain error. Nash, 438 F.3d at 1304. First, as to Standard Condition 8, there is no binding precedent from this Court or the Supreme Court hold- ing that Standard Condition 8 unconstitutionally delegates judicial authority to a probation officer. Accordingly, Bivins cannot show plain error as to Standard Condition 8. Vereen, 920 F.3d at 1312. Second, we conclude that the district court did not err in im- posing Standard Condition 12 because the condition did not in- volve improper delegation of judicial authority. See Nash, 438 F.3d at 1306. As we explained in Nash, the condition authorizes the pro- bation officer to direct “when, where, and to whom notice must be given,” but does not authorize the probation officer to “unilaterally decide” whether Bivins shall be subject to the condition at all. U.S.S.G. § 5D1.3(c)(12); Nash, 438 F.3d at 1306. Thus, the district court did not plainly err in imposing Standard Condition 12, and we affirm in this respect as well. Accordingly, based on the aforementioned reasons, we af- firm the district court’s imposition of Bivins’s sentence. AFFIRMED.