Opinion
No. 08-41030 Summary Calendar.
July 28, 2009.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal, Public Defender Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 6:08-CR-7-ALL.
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
Michael T. Grubert pleaded guilty to possession of child pornography and was sentenced to a 90-month term of imprisonment and to a 10-year period of supervised release. As a special condition of his supervision, Grubert was ordered to "participate in a mental health program as deemed necessary and approved by the probation officer."
Grubert argues that the district court committed plain error by delegating to the probation officer the authority to decide whether he should undergo mental health treatment. Citing United States v. Albro, 32 F.3d 173, 174 (5th Cir. 1994), he argues that the district court impermissibly delegated its Article III power to impose conditions of supervised release by giving the probation officer discretion to decide whether he should participate in a mental health program.
To show plain error, Grubert must show an error that is clear or obvious and that affects his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009). Our precedents do not plainly require the result Grubert urges. See United States v. Vega, 332 F.3d 849, 851-54 (5th Cir. 2003); United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002). The judgment is
AFFIRMED.