     Case: 15-20622   Document: 00513696759        Page: 1    Date Filed: 09/28/2016




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

                                    No. 15-20622                     FILED
                                                             September 28, 2016
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk

             Plaintiff - Appellee

v.

EPHESIAN JOHNNY FRANKLIN,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant-Appellant Ephesian Johnny Franklin pleaded guilty to being
a felon in possession of a firearm. Franklin appeals the mental health program
special condition of his supervised release. We VACATE the mental health
program special condition and REMAND to the district court for resentencing.


                                         I.
      On October 8, 2014, a grand jury returned a one-count indictment
charging Franklin with being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Franklin pleaded guilty, and was
sentenced to thirty months in prison and twenty-four months of supervised
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                                 No. 15-20622
release. One special condition imposed on Franklin during his supervised
release required him “to participate in a mental health program as deemed
necessary and approved by the probation officer.” Franklin appeals this mental
health condition of his supervised release, arguing primarily that it is
ambiguous as to the scope of the district court’s delegation of authority to the
probation officer.


                                      II.
      “A defendant has a constitutional right to be present at sentencing.”
United States v. Bigelow, 462 F.3d 378, 380–81 (5th Cir. 2006) (alteration
omitted) (quoting United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003)).
Accordingly, when a district court’s written judgment conflicts with its oral
pronouncement of the sentence, the oral pronouncement controls. See United
States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). We normally review
for abuse of discretion the imposition of a special condition of supervised
release. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).
However, if a defendant fails to object to the special conditions when they are
announced at sentencing, we review for plain error. See, e.g., United States v.
Bishop, 603 F.3d 279, 280 (5th Cir. 2010); United States v. Weatherton, 567
F.3d 149, 152 (5th Cir. 2009). Nonetheless, when a defendant appeals a
supervised release condition alleging ambiguity between the written judgment
and the oral pronouncement, we review for abuse of discretion if the defendant
“had no opportunity at sentencing to consider, comment on, or object to the
special conditions later included in the written judgment.” Bigelow, 462 F.3d
at 381; see also United States v. Calhoun, 471 F. App’x 322, 323 (5th Cir. 2012)
(unpublished).




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                                        No. 15-20622
       Franklin asks us to apply the abuse of discretion standard of review,
while the Government argues for plain error review. 1 During sentencing, the
district court provided the following oral pronouncement on mental health
treatment: “And I’m recommending mental health treatment if needed while
in custody and after during supervised release.” The court’s written judgment
read, in relevant part: “The defendant is required to participate in a mental
health program as deemed necessary and approved by the probation officer.”
Here, as was the case in United States v. Lomas, 643 F. App’x 319 (5th Cir.
2016) (unpublished), it is a close question whether the district court’s oral
pronouncement provided Franklin with the requisite “‘opportunity at
sentencing to consider, comment on, or object to’ the version of the mental-
health condition that the district court ultimately imposed.” Id. at 324 (quoting
Bigelow, 462 F.3d at 381).
       The district court stated that it was only “recommending mental health
treatment if needed.” A recommendation is not a mandate, as the Government
points out, and it is possible that this statement should have alerted Franklin
to the possibility that the district court was leaving the decision of his mental-
health treatment to the Probation Office. Yet, nowhere in the district court’s
oral pronouncement did it ever mention the Probation Office or a probation
officer, much less define the probation officer’s role as it did in its written



       1 The Government argues, alternatively, that the invited-error doctrine applies here.
We disagree. The invited-error doctrine provides that “[a] defendant may not complain on
appeal of errors that he himself invited or provoked the [district] court . . . to commit.” United
States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (first alteration added) (quoting United
States v. Wells, 519 U.S. 482, 487–88 (1997) (parallel citation omitted)). We narrowly construe
counsel’s statements in applying the invited error doctrine. See United States v. Parajon, 178
F. App’x 348, 349 (5th Cir. 2006) (unpublished). While it is true that defense counsel zealously
advocated for Franklin, including a discussion of mental health and possible treatment
options, defense counsel did not ask that the decision of whether Franklin needed mental
health treatment be made by the probation officer.

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                                  No. 15-20622
judgment. As we said in Lomas, “it is hard to see how [Franklin] could have
objected at sentencing to the wording of the condition—the basis of his
challenge on appeal—when he did not encounter that wording until he received
his written judgment.” Id.; see also Calhoun, 471 F. App’x at 322–23. Further
complicating our analysis, the phrase “if needed” in the district court’s oral
pronouncement could either modify “while in custody” only, or both “while in
custody” and “after during supervised release.” In an abundance of caution, we
will review Franklin’s mental health special condition for abuse of discretion.
      While probation officers have broad power “to manage aspects of
sentences and to supervise probationers and persons on supervised release
with respect to all conditions imposed by the court,” those powers are limited
by Article III of the United States Constitution. United States v. Johnson, 48
F.3d 806, 808 (4th Cir. 1995). “The imposition of a sentence, including the
terms and conditions of supervised release, is a ‘core judicial function’ that
cannot be delegated.” Lomas, 643 F. App’x at 324 (quoting Johnson, 48 F.3d at
808). While “a district court may properly delegate to a probation officer
decisions as to the ‘details’ of a condition of supervised release[,] . . . a court
impermissibly delegates judicial authority when it gives a probation officer
‘authority to decide whether a defendant will participate in a treatment
program.’” Id. (internal citations omitted).
      Without reaching Franklin’s constitutional claim, we conclude—as we
have in several similar cases—that the district court’s “written judgment
creates an ambiguity regarding whether the district court intended to delegate
authority not only to implement treatment but to decide whether treatment
was needed.” Calhoun, 471 F. App’x at 323; see also, e.g., Lomas, 643 F. App’x
at 324–25; United States v. Turpin, 393 F. App’x 172, 174 (5th Cir. 2010)
(unpublished); United States v. Vasquez, 371 F. App’x 541, 542–43 (5th Cir.


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                                      No. 15-20622
2010) (unpublished); United States v. Lopez-Muxtay, 344 F. App’x 964, 965–66
(5th Cir. 2009) (unpublished).
       For the aforementioned reasons, we VACATE the mental health
program special condition and REMAND to the district court for resentencing, 2
with the same clarifying instruction we offered in Lomas, 643 F. App’x at 325
(quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)):
       If the district court intends that the therapy be mandatory but
       leaves a variety of details, including the selection of a therapy
       provider and schedule to the probation officer, such a condition of
       probation may be imposed. If, on the other hand, the court intends
       to leave the issue of the defendant’s participation in therapy to the
       discretion of the probation officer, such a condition would
       constitute an impermissible delegation of judicial authority and
       should not be included.




       2 Given an abuse of discretion standard of review, the parties agree that a remand to
the district court for resentencing is the appropriate remedy.
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