UNITED STATES of America, Appellee, v. Ronald David WADEN, Defendant-Appellant, 699 F. App'x 94

SUMMARY ORDER Defendant-Appellant Ronald David Waden appeals the judgment of conviction entered against him on August 30, 2016 by the United States District Court for the Western District of New York (Geraci, /.), following a guilty plea by Waden to violating the terms of his supervised release. Waden, initially convicted of a sexual offense in 2008, challenges the district court’s imposition of the condition that he undergo “mental health intervention specifically designed for the treatment of sexual offenders as approved by the U.S.

Probation Office,” as an impermissible delegation Of sentencing authority to the Probation Office. We assume the parties’ familiarity with the underlying facts and procedural history. The power to impose special conditions of supervised release is vested exclusively in the district court. 18 .U.S.C. § 3583; U.S.S.G. § 5D1.3(b), (d)(7). A district court may delegate to a probation officer deci-sionmaking authority over certain minor details of supervised release. United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001).

However, “a district court may not delegate to the Probation Department deci-sionmaking authority which would make a defendant’s liberty itself contingent on a probation officer’s exercise of discretion.” United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015). “In other words, the extensive ‘supervision mission’ of federal probation officers includes executing the sentence, but not imposing it.” Id. (citing United States v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002) (internal quotation marks omitted)).

In Peterson, we found that the special condition that the defendant “is to enroll, attend and participate in mental health intervention specifically designed for the treatment of sexual predators as directed by the U.S. Probation Office” was impermissible, and remanded to the district court for a determination as to whether the defendant would undergo such treatment. 248 F.3d at 84-85. Waden challenges a nearly identical condition. The • district court ordered that Waden undergo mental health intervention designed for sexual offenders “as approved by the U.S. Probation Office.” App’x at 47.

Further, while in Peterson we were uncertain as to the intended effect of this language, here, the sentencing hearing proceedings made plain that the condition was attached for the purpose of affording the Probation Office the discretion to require Waden to participate in the treatment “in case” the Probation Office found that Wad-en had engaged in behavior similar to the conduct underlying his original sexual offense. App’x at 38-39. If the Probation Office found that such behavior had occurred, the Probation Office would then determine whether additional treatment was warranted.

We find that this condition requires the Probation Office to engage in fact finding that is reserved to the trial court and, as in Peterson, is an improper delegation of sentencing authority. To allow the Probation Office to determine whether Waden would undergo the treatment made Waden’s “liberty itself contingent on a probation officer’s exercise of discretion.” Matta, 777 F.3d at 122. Accordingly, we VACATE that portion of the sentence and REMAND to the district court to remove in full the condition that Waden undergo mental health intervention designed for sexual offenders.