IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41062

UNITED STATES OF AMERICA, 

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 withinGuidelines 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.

United States Court of Appeals

Fifth Circuit

FILED

September 1, 2017

Lyle W. Cayce

Clerk

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No. 16-41062

2 

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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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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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 mentalhealth 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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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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