[DO NOT PUBLISH]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.
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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.”).
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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.
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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.
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