IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20622

UNITED STATES OF AMERICA, 

 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 

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2016

Lyle W. Cayce

Clerk

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No. 15-20622

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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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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 mentalhealth 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 mentalhealth 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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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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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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