In a short summary order issued in United States v. Levy, the Second Circuit (Hall, Lynch, and Kuntz, D.J.) struck a condition of supervised release that delegated to the United States Probation Department the authority to decide whether to impose a curfew on the defendant. This condition was discussed briefly at sentencing, with the district court advising the defendant as follows: “They tell you you have to stay home at a certain hour or curfew, you have to obey. You understand?” The witness answered in the affirmative, and defense counsel did not object.[1]

The government conceded that this condition could not stand as the district court is not permitted to “delegate to the Probation Department decision making authority which would make a defendant’s liberty itself contingent on a probation officer’s exercise of discretion.” See United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015). However, the government asked that the case be remanded so that the district court could consider whether to impose a curfew condition. The government contended that district court’s wording was ambiguous and may have reflected an intention to directly impose a curfew condition. The Court disagreed, stating that there was no ambiguity about the district court’s intention: it meant to leave it up to the probation officers to decide whether to impose a curfew. Although defense counsel did not object to the district court’s error, the Court applied a “relaxed” plain error standard applicable here because the appeal related to the imposition of a condition of supervised release about which the defendant lacked prior notice.

While we can see why the Court elected not to publish an opinion in this matter, the summary order is a useful reminder that the district court may not delegate to the Probation Officer the job of setting the rules where a defendant’s liberty is at stake. Judges, not court personnel, impose sentences.