United States of America v. Anthony Vazquez, a/k/a EZIEQU VASQUEZ ANTHONY VAZQUEZ

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4696
UNITED STATES OF AMERICA,
v.
ANTHONY VAZQUEZ,
a/k/a EZIEQU VASQUEZ
ANTHONY VAZQUEZ,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00423-001)
District Judge: Honorable Juan R. Sanchez
Submitted Under Third Circuit LAR 34.1(a)
January 14, 2010
Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges
(Opinion filed: May 25, 2010)
OPINION
AMBRO, Circuit Judge
Anthony Vazquez pled guilty to one count of possession of a firearm by a

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convicted felon. His sentence included 198 months’ imprisonment. In this appeal, he
brings two challenges to his sentence: 1) that the District Court delegated an
impermissible level of authority to the Probation Office to control the alcohol and mental
health treatment that Vazquez would receive during his supervised release; and 2) that the
District Court’s decision to apply the statutory mandatory minimum to Vazquez as an
armed career criminal violated the Fifth and Sixth Amendments. We reject both of these
challenges, and therefore will affirm.
I.
In May 2007, the Philadelphia Police Department set up surveillance in a high-
crime area of Philadelphia. Within 20 minutes of arriving at this location, the
surveillance officers saw two drug dealers complete multiple drug deals. In each case, the
officers saw the customers approach the dealers and briefly converse with them.
Following this short conversation, one of the drug dealers would retrieve a concealed bag
from a nearby wall. The dealer would then remove items from the bag and exchange
them for money. Following each transaction, the surveillance officers provided backup
officers with a description of the customer.
Vazquez was one of the customers that the surveillance officers observed during
this period. After watching his drug transaction, the officers provided a description of
Vazquez and his car to backup officers nearby. The backup officers then conducted an
investigatory stop of Vazquez’s car. During the stop, the officers asked the driver and

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three passengers (Vazquez included) to get out of the car. Vazquez complied, but then
began running. While running, he threw a jar to the ground. The officers then caught
Vazquez and struggled to secure him. During the struggle, they noticed a gun sticking out
of his pants. Eventually, the officers subdued Vazquez and recovered his loaded gun.
The officers also seized the jar that he had discarded, which contained 469 milligrams of
PCP. Following his arrest, Vazquez gave the officers an alias instead of his true name.
II.
In July 2007, a grand jury indicted Vazquez for one count of possession of a
firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment
alleged that he previously had been convicted of a “crime punishable by imprisonment for
a term exceeding one year,” but did not allege that he had three prior convictions for
“serious drug offenses.” In March 2008, Vazquez pled guilty.
In November 2008, the District Court held a sentencing hearing. During this
hearing, the Government offered evidence that Vazquez had three prior felony drug
convictions—each of which qualified as a “serious drug offense” under 18 U.S.C. §
924(e). Agreeing with the Government, the District Court concluded by a preponderance
of the evidence that Vazquez had been convicted of these prior offenses and therefore
qualified for a sentencing enhancement under the Armed Career Criminal Act (“ACCA”).
Vazquez admitted during the hearing that he had a drug addiction. Furthermore,
his mother and a family friend testified that they were aware of Vazquez’s substance

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abuse problems. This tracked the Presentence Report (“PSR”), which noted that Vazquez
admitted to “a poly substance abuse history involving alcohol, barbiturates, cocaine
powder, marijuana, and PCP.” Vazquez’s substance abuse dated back to when he was 13
years old. In the PSR, Vazquez also reported “a mental health treatment history dating
back to adolescence.” In particular, Vazquez admitted that he had been diagnosed with
bipolar disorder while previously in custody. Furthermore, in 2003 he had been taken to a
psychiatric unit because he was “overwhelmed with stress due to his finances, having
young children, and life in general.”
In imposing Vazquez’s sentence, the District Court considered the 18 U.S.C. §
3553(a) factors. The Court stressed that this was Vazquez’s seventh criminal
conviction—representing an unbroken criminal record dating back to when he was a 12-
year-old. The Court also referenced Vazquez’s substance abuse problem, which had
impeded both his educational and employment opportunities. In the end, the Court
imposed a sentence of 198 months’ imprisonment, five years of supervised release, a
$1,500 fine, and a $100 assessment. Vazquez filed a timely appeal.
III.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We ordinarily review the District Court’s sentence for abuse of discretion. See
United States v. Martinez, 785 F.2d 111, 113 (3d Cir. 1986). However, we review

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conditions of supervised release that were not objected to previously (such as those at
issue in this appeal) for plain error. See United States v. Evans, 155 F.3d 245, 248 (3d
Cir. 1998). Finally, we exercise plenary review over a District Court’s legal conclusions.
See United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).
IV.
In this appeal, Vazquez challenges his sentence on two grounds: 1) that the District
Court delegated an impermissible level of authority to the Probation Office to control
conditions of his supervised release; and 2) that the District Court’s decision to apply the
sentencing enhancement under the ACCA violated the Fifth and Sixth Amendments. We
consider each challenge in turn.
A. Vazquez’s Supervised Release Conditions
The challenged conditions of Vazquez’s supervised release read as follows:
The defendant shall refrain from use of alcohol and shall submit to testing
to ensure compliance. It is further ordered that the defendant submit to
evaluation and treatment as directed by the U.S. Probation Office. The
defendant shall abide by the rules of any program and remain in treatment
until satisfactorily discharged with the approval of the U.S. Probation
Office.
. . .
The Defendant shall participate in a mental health program for evaluation
and/or treatment as directed by the Probation Office[,] and he shall remain
in treatment until satisfactorily discharged with the approval of the U.S.
Probation Office.
App. 6. Vazquez argues that these conditions run afoul of our holding in United States v.
Pruden, 398 F.3d 241 (3d Cir. 2005). Although we concede that his challenges present

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close questions under Pruden, we conclude that they fail under our recent decision in
United States v. Heckman, 592 F.3d 400 (3d Cir. 2010).
“[P]robation officers must be allowed some discretion in dealing with their
charges,” as “courts cannot be expected to map out every detail of a defendant’s
supervised release.” Pruden, 398 F.3d at 250. Yet we must “balance[] the need for
flexibility with the constitutional requirement that judges, not probation officers, set the
terms of a defendant’s sentence.” Id. at 251. Therefore, we have endorsed the following
test:
If [the defendant] is required to participate in a mental health intervention
only if directed to do so by his probation officer, then this special condition
constitutes an impermissible delegation of judicial authority to the probation
officer. On the other hand, if the District Court was intending nothing more
than to delegate to the probation officer the details with respect to the
selection and schedule of the program, such delegation was proper.
Id. at 250-51 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)); see also
Heckman, 592 F.3d at 410.
In Pruden, the District Court imposed a mental health condition similar (though
not identical) to the mental health condition at issue in this case. The condition in Pruden
read as follows: “The defendant shall participate in a mental health treatment program at
the discretion of the probation officer.” Pruden, 398 F.3d at 248. Unlike Vazquez’s case,
however, none of the circumstances surrounding Pruden’s underlying offense or personal
history suggested the need for mental health treatment. Indeed, the PSR “tend[ed] to
show that Pruden has a generally good mental state with no history of mental illness.” Id.

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at 249. Given this, we noted:
It is theoretically possible to read the sentence, “The defendant shall
participate in a mental health treatment program at the discretion of the
probation officer[]” to mean that the probation officer shall have discretion
only to choose the particular program, but that participation in some such
treatment program is mandatory. On this interpretation, the delegation
would be permissible. The facts of this case, however—and, in particular,
the lack of any specific findings that Pruden needs such mental health
treatment—make it an implausible reading. At all events, the government
conceded at oral argument that the District Court did not intend the
probation officer’s discretion to extend only to the choice of particular
programs.
Id. at 251 n.5.
As we recently concluded in Heckman, “[t]here were special, fact-specific
circumstances in Pruden that led us to reject” reading the mental health condition as
providing the probation officer with “discretion only to choose the particular program,”
but rendering “some such treatment program . . . mandatory.” Heckman, 592 F.3d at 410.
We explained:
The mental health condition [in Pruden] was “not recommended in the
[PSR] or requested by the government” . . . ; there was no evidence of, and
no findings for, the need for mental health treatment, . . . ; and, to seal the
matter, at oral argument “the [G]overnment conceded . . . that the District
Court did not intend the probation officer’s discretion to extend only to the
choice of particular programs.”
Id. (quoting Pruden, 398 F.3d at 245, 249, 251 n.5) (emphasis in original). Given this
reading of Pruden, we upheld Heckman’s mental health condition, noting that his
“extensive history of exploiting children . . . supports reading the condition as a
permissible form of delegation.” Id. Furthermore, “the Government . . . did not concede

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In Heckman, the mental health condition read as follows: “The defendant shall1
participate in a mental health program for evaluation and/or treatment as directed by the
United States Probation Office. The defendant shall remain in treatment until
satisfactorily discharged and with the approval of the United States Probation Office . . .
.” 592 F.3d at 409.
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that the probation officer’s discretion . . . extended past the choice and scheduling of
particular mental health programs.” Id. With these key cases in mind, we consider in
turn each of Vazquez’s challenged conditions.
1. The Mental Health Condition
The District Court ordered that Vazquez “shall participate in a mental health
program for evaluation and/or treatment as directed by the Probation Office[,] and he
shall remain in treatment until satisfactorily discharged with the approval of the U.S.
Probation Office.” App. 6 (emphases added). Importantly, this condition is almost
identical to the one we recently upheld in Heckman. 592 F.3d at 409-11. As in1
Heckman, we concede that the phrase “shall participate in a mental health program for
evaluation and/or treatment,” taken in isolation, could be read “as allowing the Probation
Office to order evaluation but not treatment—a potentially impermissible delegation of
authority under Pruden.” Id. at 410 (emphasis in original). However, as in Heckman, the
remainder of the condition “leads us to reject such a reading.” Id. Indeed, each condition
further provides that the defendant “shall remain in treatment,” App. 6 (emphasis added),
language which is “most naturally read as requiring mandatory treatment and thus
limiting the Probation Office’s discretion.” Heckman, 592 F.3d at 410. As such, we

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conclude that the text of the condition is best read as providing that “[p]articipation in the
mental health treatment program itself is mandatory,” with “only the details . . . set by the
Probation Office.” Id. at 411.
As in Heckman (but not Pruden), this reading is bolstered by the record. Indeed,
the PSR noted that Vazquez had a “mental health treatment history dating back to
adolescence,” had been diagnosed with bipolar disorder in 2000, and was taken to a
psychiatric unit in 2003 when, as already noted, “he became overwhelmed with stress due
to his finances, having young children, and life in general.” For these reasons, we hold
that the District Court’s imposition of the mental health condition was not plain error.
2. The Alcohol Treatment Condition
The District Court also directed that Vazquez refrain from alcohol use and submit
to testing for alcohol consumption. In addition, the Court required him to “submit to
evaluation and treatment as directed by the U.S. Probation Office.” App. 6. Moreover,
Vazquez “shall abide by the rules of any program and remain in treatment until
satisfactorily discharged with the approval of the U.S. Probation Office.” App. 6.
(emphasis added). We conclude that this condition also satisfies the requirements of
Pruden and Heckman.
First, just as there was support in the record for the mental health condition in
Heckman, there is support for the alcohol treatment condition in this case. To repeat, the
PSR concluded that Vazquez had a “poly substance abuse history involving alcohol,

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barbiturates, cocaine powder, marijuana, and PCP, dating back to age 13.” Furthermore,
Vazquez attended an outpatient program for substance abuse in 1999. He was also
admitted to an inpatient program that same year, but left against medical advice
approximately two weeks later. While participating in the inpatient program, Vazquez
“was described as showing no interest in participating.”
Furthermore, during Vazquez’s sentencing hearing, his mother and a family friend
both confirmed his long history of substance abuse. See, e.g., App. 220-21 (noting that
Vazquez “does have a drug problem,” and that no one ever “bother[s] to put him in a
program and give him the help he needs”); App. 223 (acknowledging Vazquez’s
addiction issues and explaining that he is “a sweetheart” and “very good person” when he
is sober). Vazquez’s counsel also acknowledged that Vazquez “ha[d] a drug problem”
and needed “treatment.” App. 216. Finally, Vazquez himself explained, “I’m an addict,
I’m always going to be an addict. . . . I could be clean for ten years and one day pick up a
drink and—and become an addict again ‘cause I’m always gonna be an addict.” App.
230. With regard to alcohol consumption in particular, prior to his arrest Vazquez
“primarily drank alcoholic beverages on Fridays and Saturdays,” averaging between “a
few beers to a six-pack of beer per night.”
Second, just as in Heckman, the alcohol treatment condition in this case delegates
a permissible level of authority to the Probation Office. While delegating some
administrative duties to the Probation Office, the condition “order[s] [that] the defendant

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submit to evaluation and treatment as directed by the U.S. Probation Office.” App. 6
(emphases added). In addition, the condition provides that Vazquez “shall abide by the
rules of any [alcohol treatment] program and remain in treatment until satisfactorily
discharged.” App. 6 (emphasis added). This language, coupled with Vazquez’s alcohol
abuse history, leads us to conclude that the condition provides for mandatory alcohol
treatment. Indeed, we read this condition as requiring Vazquez’s participation in alcohol
treatment, while permissibly delegating to the Probation Office the task of identifying the
specific program, monitoring Vazquez’s treatment, and officially signing off on
Vazquez’s (possible) discharge after successful completion of the program. As such, we
hold that the District Court did not plainly err in imposing the alcohol treatment
condition.
B. The Armed Career Criminal Act
Finally, we turn to Vazquez’s constitutional challenge to the District Court’s
decision to apply the sentencing enhancement under the ACCA without treating his prior
felony convictions as elements of the offense and charging them in the indictment. In
Vazquez’s view, this runs afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000). In
particular, he argues that, since his prior convictions increased his sentence under the
ACCA, those convictions should have been charged in the indictment as elements of the
offense and proved to a jury beyond a reasonable doubt. Given this, Vazquez concludes
that the sentence imposed violates his constitutional rights under the Fifth and Sixth

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Amendments—notwithstanding controlling precedent.
In Almendarez-Torres v. United States, the Supreme Court held that the existence
of prior convictions that increase the statutory maximum sentence may be determined by
the District Court at sentencing and need not be included in the indictment or established
as an element of the offense. 523 U.S. 224, 226-27 (1998). We have recently confirmed
that Almendarez-Torres remains controlling authority in this Circuit, including in the
context of the ACCA. See, e.g., United States v. Weatherly, 525 F.3d 265, 273-74 (3d
Cir. 2008) (rejecting a similar challenge to the ACCA); United States v. Coleman, 451
F.3d 154, 161 (3d Cir. 2006) (“[A]s the Supreme Court’s decision in Almendarez-Torres
remains good law . . . , Coleman’s argument regarding the Government’s failure to prove
his prior convictions to the jury beyond a reasonable doubt is unpersuasive.”); United
States v. Ordaz, 398 F.3d 236, 240 (3d Cir. 2005) (“Ordaz’s argument that the fact of a
prior conviction must be found by a jury was rejected by the Supreme Court in
Almendarez-Torres . . . .”). With this in mind, Vazquez concedes that he is simply
preserving this issue for further review, should the Supreme Court reconsider
Almendarez-Torres. See App. 197 (conceding that Almendarez-Torres is “still good
law”); see also Appellant’s Br. 7 (“Counsel recognizes that Almendarez-Torres . . . is to
the contrary . . . , but raises this issue to preserve it for further review and for adjudication
should the Supreme Court overrule Almendarz-Torres.”). In this context, we reject
Vazquez’s constitutional challenge to his sentencing enhancement under the ACCA.

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* * * * *
For these reasons, we affirm the judgment of the District Court.

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