UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4449

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES CALVIN BREEDEN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (7:19-cr-00117-BR-1)

Submitted: November 22, 2021 Decided: December 14, 2021

Before WILKINSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, Jennifer P. May- Parker, David A. Bragdon, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

On February 26, 2020, a jury convicted James Calvin Breeden of possession of a

firearm by a felon, in violation of

(g), 924(a)(2); possession with intent

to distribute 28 grams or more of cocaine base and a quantity of cocaine, in violation of

(a)(1), (b)(1)(B); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of

(c)(1)(A)(i). The district court

subsequently sentenced Breeden to 120 months in prison, to be followed by a four-year

term of supervised release. Breeden argues that the district court reversibly erred when it

imposed the special conditions of supervised release without explaining why the conditions

were appropriate and necessary in Breeden’s case. Breeden also argues that the

discretionary condition prohibiting him from incurring new credit charges or lines of credit

without the probation office’s approval impermissibly delegates the district court’s

authority in violation of Article III. * We reject Breeden’s arguments and affirm.

Before imposing a sentence, a district court must consider the parties’ arguments

and “conduct an individualized assessment of the facts and arguments presented.” United

States v. Blue,

(4th Cir. 2017) (internal quotation marks omitted).

The court then must “adequately explain the chosen sentence to allow for meaningful

* Breeden also challenged his § 922(g) conviction under Rehaif v. United States,

(2019), and argued that the district court reversibly erred by including discretionary conditions in the criminal judgment that it failed to announce at sentencing. Breeden nonetheless rightly concedes that his Rehaif argument is foreclosed by this court’s decision in United States v. Moody,

(4th Cir. 2021), and subsequently withdrew his argument regarding the district court’s failure to adequately pronounce the discretionary conditions at sentencing.

2 appellate review and to promote the perception of fair sentencing.” Id. at 518 (internal

quotation marks omitted).

This duty to explain applies equally to special conditions of supervised release.

United States v. McMiller,

(4th Cir. 2020). Notably, “this duty cannot

be satisfied or circumvented through the adoption of a standing order purporting to impose

special conditions of supervised release across broad categories of cases or defendants.”

In contrast, “there may be instances when a special condition is so unobtrusive, or the

reason for it so self-evident and unassailable,” that the imposition of the conditions without

explanation does not require vacatur and remand.

; see United States v. Armel,

(4th Cir. 2009) (noting that “a key purpose of the explanation

requirement is to allow for meaningful appellate review” (internal quotation marks

omitted)). A district court that fails to provide an explanation for the sentence imposed

commits reversible procedural error. United States v. Arbaugh,

(4th

Cir.), cert. denied,

(2020).

As Breeden did not object to the district court’s imposition of the supervised release

conditions, we review the procedure by which the court imposed the conditions for plain

error. McMiller,

. To establish plain error, then, Breeden is required to

establish that an error occurred, that was plain, and that affected his substantial rights.

United States v. White,

(4th Cir. 2005). Even if Breeden meets the

required showing, this court will not reverse “unless the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.”

(brackets and internal quotation

marks omitted).

3 In this case, the district court did not explain the special conditions it imposed and,

thus, the court committed error that was plain. See McMiller,

. Having

reviewed the record, we nonetheless find that the reasons for the conditions imposed upon

Breeden are intuitive and “self-evident.”

. See, e.g., United States v. Camp,

(8th Cir. 2005) (finding that district court did not abuse its discretion when

it imposed credit line supervised release condition because the condition would aid the

probation officer in monitoring the defendant’s employment and was “reasonably related”

to his “history of non-payment of his child support obligations”).

Furthermore, unlike the unexplained conditions that this court has vacated, the

additional conditions the district court imposed on Breeden are temporary, narrowly

defined, and related to the circumstances of Breeden’s offenses, and therefore do not

permanently or unreasonably burden Breeden’s liberty. Cf. McMiller,

(noting conditions, imposed on offender for the remainder of his life, that broadly

prohibited offender who had accessed child pornography on computer from maintaining

any social network account or using any electronic device capable of accessing the internet

were overbroad); Arbaugh,

(vacating conditions, imposed without

explanation, related to offender’s use of computers even though his offense did not involve

a computer); United States v. Ross,

(4th Cir. 2019) (noting that district

court had imposed supervised release conditions for life, thereby “forever modify[ing]” the

offender’s life). We therefore find that any error did not affect Breeden’s substantial rights.

We also reject Breeden’s argument that the district court impermissibly delegated

its Article III authority to Breeden’s probation officer when it authorized the officer to

4 allow Breeden to incur new credit charges or open an additional line of credit with the

officer’s permission. “We review constitutional non-delegation challenges to conditions

of supervised release de novo.” United States v. Comer,

(4th Cir. 2021)

(internal quotation marks omitted). “Generally, courts may use nonjudicial officers, such

as probation officers, to support judicial functions, as long as a judicial officer retains and

exercises ultimate responsibility.”

(internal quotation marks omitted). “Of course, the

type of duty that the court may [so] delegate is limited by Article III.” United States v. Van

Donk,

(4th Cir. 2020) (internal quotation marks omitted). “Specifically,

courts can’t delegate core judicial functions such as the authority to decide the amount of

a fine or restitution payment, or whether a defendant must attend a treatment program.”

Comer,

(internal quotation marks omitted).

In Van Donk, this court rejected a nondelegation challenge to a term of supervised

release that required a defendant “to comply with the rules of his sex-offender treatment

program.”

. In that case, the court “contrasted permissible

delegations, in which district courts permitted probation officers or therapists to fashion

the means or details of court-ordered therapy, with impermissible delegations, where

probation officers or therapists were empowered to determine whether a defendant needed

to attend therapy at all, or were permitted to impose conditions on the defendant unrelated

to their therapy without judicial review.” Comer,

(construing Van Donk,

). The court also found it relevant that the district court retained

“ultimate responsibility over the core judicial function of deciding whether [the defendant]

ha[d] violated his conditions of supervised release.” Van Donk,

. “That is,

5 the defendant’s supervised release was not ‘automatically revoked’ when he was expelled

from his treatment program.” Comer,

(brackets omitted). “Rather, he was

given a hearing on the issue, which afforded him due process without having the district

court micromanage his treatment.”

(brackets and internal quotation marks omitted).

“Van Donk thus instructs that as long as the court orders the broad principle guiding the

condition of release and retains the ultimate authority over revoking release, the court may

allow the probation officer to fill in many of the details necessary for applying the

condition.”

More recently, the court determined in Comer that a “district court did not

impermissibly delegate its Article III authority to [a] probation officer when it authorized

her to allow Comer to maintain social networking accounts with [the probation officer’s]

permission.”

As the court explained, the district court in that case actually “established

the principle that Comer could not maintain social networking accounts without permission

and, as in Van Donk, maintains the core judicial function of determining whether Comer

violates her conditions of release.”

The court also found it important that the probation

officer could not punish Comer but “merely supports the judicial function of imposing

supervised release by determining if she can maintain certain social networking accounts,

a decision that itself is subject to review by the district court.”

.

Similar to the social networking accounts condition at issue in Comer, the district

court’s “line of credit” condition here provided that Breeden could not incur new credit

charges or open additional lines of credit without approval of the probation office. See

(indicating that challenged special condition of supervised release “stat[ed] that

6 Comer was ‘not to have any social networking accounts without the approval of the U.S.

Probation Officer’” (brackets omitted)). The district court here thus “established the

principle” that Breeden could not incur new credit charges or open additional lines of credit

without approval while still “maintain[ing] the core judicial function of determining

whether [Breeden] violates [his] conditions of release” if he does so.

. Moreover,

while the probation officer may deny Breeden permission to incur new credit charges, for

example, only the district court may punish Breeden if he incurs such charges without the

probation officer’s permission.

We therefore reject Breeden’s argument that allowing

the probation officer to deny Breeden permission to incur new credit charges or open new

lines of credit amounted to an impermissible delegation of the district court’s Article III

authority.

Based on the foregoing, we affirm the criminal judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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