United States v. Ackah ( 2022 )

Case: 21-40665 Document: 00516387440 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 8, 2022
No. 21-40665
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Evans Ackah,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-1721-1
Before King, Elrod, and Southwick, Circuit Judges.
Per Curiam:*
Evans Ackah was convicted of transporting and attempting to
transport an alien within the United States as well as conspiracy to do the
same. Ackah appeals the written judgment and sentence imposed on the
grounds that it expands the oral pronouncement of a mental-health-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40665 Document: 00516387440 Page: 2 Date Filed: 07/08/2022
No. 21-40665
treatment condition of supervised release and that it contains a clerical error.
For the following reasons, we AFFIRM in part and VACATE in part.
I.
Evans Ackah was convicted, following a bench trial, of one count of
transporting and attempting to transport an alien within the United States
and one count of conspiracy to do the same in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (A)(v)(I), respectively. In a sentencing hearing, the
district judge sentenced Ackah to 21 months in custody on each count, to run
concurrently, followed by two years of supervised release on each count, also
to run concurrently. He also imposed a $200 special assessment to be paid
upon Ackah’s release. Last, just before the close of the hearing, the probation
officer raised the possibility of including mental-health treatment in Ackah’s
sentence since the probation officer’s report had not recommended mental-
health treatment, but Ackah’s attorney had voiced concerns about his mental
wellbeing. In response, the district judge pronounced:
Yes. Let’s do an evaluation and mental health treatment while
he’s in custody. And then when he gets out, I think he said he
didn’t have insurance, he was trying to get help himself, so
they’ve requested it. So I’m glad to make that a part of the
judgment here so that he can, in fact, get help if he needs it.
Then, the district court entered its written judgment indicating that, in
addition to a recommendation to the Bureau of Prisons that Ackah participate
in a mental-health treatment program while in custody, as a special condition
of supervision, Ackah “must participate in a mental-health treatment
program . . . [and] must pay the cost of the program, if financially able.”
Ackah appeals the judgment arguing that (1) the written judgment’s
mandate of mental-health treatment (and payment for it) as a condition of
supervised release conflicts with the court’s oral pronouncement of
2
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permissive treatment conditioned on Ackah’s need, and (2) that the written
judgment contains a clerical error that should be corrected.
II.
We review the imposition of conditions of supervised release for an
abuse of discretion. United States v. Huor, 852 F.3d 392, 397 (5th Cir. 2017);
United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). The conditions
of supervised release that are required by 18 U.S.C. § 3583(d) need not be
pronounced at sentencing because objecting to them would be futile. United
States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc), cert. denied, 141
S. Ct. 825 (2020). Any discretionary condition, however, must be
pronounced “to allow for an objection.” Id. 1 Discrepancies between an oral
pronouncement and the written judgment are delineated into two types:
ambiguities and conflicts. United States v. Mireles, 471 F.3d 551, 558 (5th Cir.
2006). If the discrepancy is a mere ambiguity, the court determines whether
the oral and written pronouncements are reconcilable. Id. at 559.
If the discrepancy is a conflict, the court will vacate the judgment and
remand for entry of an amended judgment that conforms with the oral
pronouncement. United States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006).
To determine “whether there is a conflict, this court considers whether the
written sentence is more burdensome than the orally pronounced sentence.”
United States v. Magallon-Contreras, 810 F. App’x 281, 283 (5th Cir. 2020)
(citing Bigelow, 462 F.3d at 383–84). “If the written judgment broadens the
1
“[T]his is based on the defendant’s right to be present at sentencing. And that
comes from the Sixth Amendment’s Confrontation Clause.” United States v. Rivas-
Estrada, 906 F.3d 346, 350 (5th Cir. 2018).
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restrictions or requirements of supervised release from an oral
pronouncement, a conflict exists.” Mireles, 471 F.3d at 558.
III.
First, the parties agree that the written judgment requires Ackah’s
mental-health treatment during supervised release. They disagree about
whether the oral pronouncement mandates, or merely permits, mental-
health treatment. It is clear from the record that the district judge was
concerned about Ackah’s ability to access continued mental-health treatment
upon his release from custody due to his lack of insurance. An orally
pronounced condition of supervised release that permits a defendant access
to mental-health treatment if he needs it conflicts with a written judgment
that mandates the very same treatment—it broadens a permission to a
mandate. 2 The written requirement that Ackah must participate in a mental-
health treatment program is thus “more burdensome than the orally
pronounced sentence.” Magallon-Contreras, 810 F. App’x at 283 (citing
Bigelow, 462 F.3d at 383–84). Accordingly, we vacate the judgment and
remand for entry of an amended judgment that conforms to the oral
pronouncement.
2
United States v. Rios, 812 F. App’x 287, 288 (5th Cir. 2020) (finding that the
district court abused its discretion by mandating participation in an educational program
after orally pronouncing that defendant was required to participate in such a program only
“if he had not already [obtained his GED] during his term of imprisonment”); cf. United
States v. Griffin, 780 F. App’x 103, 106 (5th Cir. 2019) (finding no conflict when both the
oral and written pronouncements permitted substance abuse counseling based on the
probation office’s discretion); Mireles, 471 F.3d at 558–59 (finding no conflict when the oral
and written pronouncements involved mandates “prevent[ing the defendant] from
trafficking drugs while engaged in commercial truck driving activities”); Warden, 291 F.3d
at 365 (finding no conflict between oral and written pronouncements mandating drug and
other treatment during supervision).
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Second, however, we have already indicated that the “imposition of
the costs of drug treatment, even if mentioned for the first time in the written
judgment, does not create a conflict between the written and oral
judgments[.]” United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003)
(emphasis in original); see also Warden, 291 F.3d at 365 (finding no conflict
wherein the requirement to pay for treatment was mentioned for the first
time in the written judgment). Accordingly, we affirm the written judgment’s
requirement that Ackah pay, if financially able, for any mental-health
treatment he receives during his supervision period. We note, however, that
Ackah would incur such an obligation only if such treatment is in fact
necessary.
Third, the parties agree that the judgment should be remanded to
correct a clerical error in the judgment pursuant to Federal Rule of Criminal
Procedure 36. During the sentencing hearing, the district judge pronounced
(after agreement from the parties) that the $200 special assessment would be
due upon Ackah’s release from custody, but the written judgment indicates
that the $200 special assessment was to be paid “immediately.” We vacate
that portion of the judgment and remand to the district court to correct the
clerical error.
IV.
For the foregoing reasons, we VACATE the judgment in part and
REMAND to the district court to correct the clerical error and the conflict
with the oral pronouncement. We AFFIRM the district court’s judgment
regarding Ackah’s payment for mental-health treatment during supervised
release.
5