                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-14655                    MAY 22, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                     D. C. Docket No. 04-00104-CR-3-RV

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

JOHN ALLEN FAULK, JR.,

                                                        Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                 (May 22, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

     John Allen Faulk, Jr. appeals his sentences for possessing child pornography
which had been shipped in interstate commerce by computer, in violation of 18

U.S.C. §§ 2252A(a)(5)(B) and (b)(2); engaging in sexually explicit conduct with a

minor for the purpose of producing a visual depiction, in violation of 18 U.S.C.

§ 2251(a) and (e); and using the internet to transfer obscene matter to a minor, in

violation of 18 U.S.C. § 1470. Specifically, Faulk contends that the district court

erred when it imposed a special condition of supervised release that required Faulk

to participate in mental health counseling and treatment as directed by the

probation office. He claims that the order gave the probation officer

unconstitutional discretion.

       When an issue was not raised before the district court, we review for plain

error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005) (per curiam).

Plain error exists if there was “(1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotations and citation omitted). An error is only plain if it is clear under current

law. Id. at 1315. To show that an error affected substantial rights, a defendant will

almost always have to show that the error “affected the outcome of the district

court proceedings.” Id. (quotations omitted). A violation of Article III of the U.S.



                                             2
Constitution seriously affects the “fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1316 (quotes omitted).

      The U.S. Sentencing Guidelines Manual (“U.S.S.G.”) allows a district court

to require that a defendant “participate in a mental health program approved by the

United States Probation Office.” U.S.S.G. § 5B1.3(d)(5) (2002). In Heath, we

held that leaving the decision of whether a defendant will participate in a mental

health program to a probation officer is plain error. 419 F.3d at 1315. The

condition at issue in Heath stated: “The defendant shall participate if and as

directed by the probation office in such mental health programs as recommended

by a psychiatrist or psychologist to include residential treatment, outpatient

treatment, and psychotropic medications as prescribed by a medical doctor.”

Id. at 1314. We determined in Heath that the error was plain because it was clear

under then-current law. See id. at 1315. Our precedent, we noted, holds that

delegating a judicial function violates Article III of the U.S. Constitution. See id.

(citing United States v. Prouty, 303 F.3d 1249, 1255 (11th Cir. 2002)); see also

United States v. Nash, 438 F.3d 1302, 1304, 1306 (11th Cir. 2006) (per curiam)

(holding that the district court committed plain error by imposing the following

condition: “As deemed necessary by the Probation Officer, the defendant shall

participate in mental health counseling, which may include inpatient treatment.”).



                                           3
But cf. United States v. Zinn, 321 F.3d 1084, 1086, 1092 (11th Cir. 2003) (holding

it was not plain error to impose the following condition: “You shall participate as

directed in a program of mental health treatment including a sexual offender

treatment program approved by the probation officer.”).

      Here the district court stated to Faulk at sentencing: “[Y]ou will be required

to participate in a program of mental health counseling and treatment as directed

by the supervising U.S. Probation Officer.” The district court further

recommended that Faulk be “designated to an institution that has an affiliated

mental health unit in order that he can receive mental health treatment.” The

language employed by the district court is similar to that upheld in Zinn, because it

merely delegates to the probation officer the administrative supervision of Faulk’s

participation in the mental health program, not the ultimate decision of whether

Faulk must participate in the program. See Zinn, 321 F.3d at 1092; Heath, 419

F.3d at 1315. On the other hand, the written judgment issued by the district court

states: “As deemed necessary by the Probation Officer, the defendant shall

participate in a program of mental health treatment.” (emphasis added). This

language is similar to the language in Nash that was found to be delegation of

ultimate authority–and to constitute plain error. See Nash, 438 F.3d at 1306. We

are thus presented with a situation where the district court’s written judgment

deviates from its oral sentence. “When the orally imposed sentence differs from

the written order of judgment, the oral sentence controls.” United States v.

                                          4
Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003) (per curiam). Because the district

court’s oral sentence controls–and the special condition of supervised release

described in that sentence is more similar to the condition upheld in Zinn than the

conditions rejected in Heath and Nash–we hold that the district court did not

commit plain error. The phrasing the district court chose at the sentencing hearing,

coupled with the judge’s recommendation that Faulk serve his sentence where he

could receive mental health treatment, sufficiently establishes that the district court

intended to impose mental health treatment and simply left the discretion or

administration of that treatment to the probation officer. Accordingly, we affirm

Faulk’s sentence.

      AFFIRMED.




                                           5
