     Case: 16-41062       Document: 00514141137         Page: 1     Date Filed: 09/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                       No. 16-41062                                   FILED
                                                                              September 1, 2017
                                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                                             Clerk

                                                  Plaintiff - Appellee

v.

JAMES PATRICK LYONS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1143-1


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       James Patrick Lyons appeals his jury-trial conviction and within-
Guidelines sentence for conspiracy to possess, with intent to distribute, 50
kilograms or more of marijuana; and possession, with intent to distribute, 50
kilograms or more of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) and 846. Concerning his conviction, Lyons contends the
district court’s admitting evidence at trial of a text message violated Federal
Rule of Evidence 404(b). As for his sentence, he maintains a conflict exists


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 16-41062

between the oral pronouncement of sentence and the written judgment
regarding his participation in a residential drug-treatment program (RDAP);
and he challenges the court’s ordering him to undergo mental-health treatment
as a condition of his supervised release.
      The admission of Rule 404(b) evidence is reviewed under a heightened
abuse-of-discretion standard. United States v. Olguin, 643 F.3d 384, 389 (5th
Cir. 2011). “Such a review demands that the evidence be strictly relevant to
the particular offense charged.”    Id.       If we conclude the court abused its
discretion in admitting Rule 404(b) evidence, review is for harmless error.
United States v. Kinchen, 729 F.3d 466, 470–71 (5th Cir. 2013). In determining
whether the admission of evidence was harmless, we “view the error in relation
to the entire trial[,] . . . determin[ing] whether the inadmissible evidence
contributed to the jury’s verdict”. United States v. Wells, 262 F.3d 455, 463
(5th Cir. 2001). The error is not harmful unless “the evidence had a substantial
impact on the verdict”. Id. (internal quotation marks and citation omitted).
      The admitted portion of the text message at issue, found on a cellular
phone in Lyons’ possession, claimed, inter alia, Lyons’ sister-in-law, “tr[ied]
buying dope from [Lyons]”. The court did not admit language it determined to
be offensive and irrelevant to the charged conduct, and gave the jury a limiting
instruction on the admitted language. Lyons maintains on appeal, as he did
at trial, that the text message had no probative weight explaining or
connecting him to the charged conduct.
      The text-message evidence of Lyons’ extrinsic act may not require the
same state of mind as the charged offense, see United States v. Gordon, 780
F.2d 1165, 1173 (5th Cir. 1986), and its admission may have been erroneous.
See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).




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                                  No. 16-41062

Assuming arguendo that there was error, reversal is not warranted.
See Kinchen, 729 F.3d at 471.
      Evidence presented at trial, at which Lyons testified, included Lyons’
inconsistent statements, implausible explanations for events, and the high
value of the marijuana, providing strong circumstantial evidence that he
knowingly possessed the marijuana. See United States v. Vasquez, 677 F.3d
685, 694–95 (5th Cir. 2012) (“circumstantial evidence of guilty knowledge
includes, inter alia, . . . inconsistent statements”); United States v. Villareal,
324 F.3d 319, 325 (5th Cir. 2003) (“[defendant]’s inconsistent statements, false
exculpatory statements, and implausible explanations as to how he came to be
hauling a vehicle loaded with marihuana, when combined with all the other
evidence in the case, are more than sufficient circumstantial evidence of guilty
knowledge”); United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990)
(“This Court has acknowledged that a ‘less-than-credible explanation’ for a
defendant’s actions is ‘part of the overall circumstantial evidence from which
possession and knowledge may be inferred’”.). In the light of this evidence, the
admission of the portion of the text message did not have a substantial impact
on the jury’s verdict. See Wells, 262 F.3d at 463. Accordingly, the conviction
is affirmed.
      At sentencing, the court agreed to recommend that Lyons be allowed to
participate in the RDAP, but this recommendation did not appear in the
written judgment.     If a written entry of judgment conflicts with an oral
pronouncement of sentence, the oral pronouncement controls.           See United
States v. Illies, 805 F.3d 607, 610 (5th Cir. 2015). Accordingly, the judgment is
to be amended to conform to the court’s oral pronouncement recommending
that Lyons participate in the RDAP.




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                                   No. 16-41062

      Because Lyons did not object at sentencing when the court ordered
mental-health treatment as a condition of supervised release, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012).   Under that standard, Lyons must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      The imposition of supervised-release conditions and terms “is a core
judicial function that cannot be delegated”. United States v. Franklin, 838 F.3d
564, 568 (5th Cir. 2016) (internal quotation marks omitted). A district court
may delegate details of a treatment-related condition to a probation officer, but
it may not give “a probation officer authority to decide whether a defendant
will participate in a treatment program”.          Id. (internal quotation marks
omitted) (emphasis in original).
      Lyons does not challenge the imposition of the mental-health-treatment
condition of supervised release; he challenges the condition only as an
impermissible delegation by the court. The record demonstrates Lyons had a
problematic upbringing and a history of substance abuse. Based on Lyons’
history and his counsel’s representations, the court imposed drug and mental-
health treatment. The court clearly intended that mental-health treatment be
mandatory and left only the details to the probation officer. See United States
v. Guerra, 856 F.3d 368, 370 (5th Cir. 2017). To remove all doubt, however,
mental-health treatment is imposed, and details of the treatment are to be
supervised by the probation office.




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                                No. 16-41062

      CONVICTION AFFIRMED; as for the challenged portions of the
sentence, this matter is REMANDED to district court to amend the judgment
consistent with this opinion.




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