USA v. Michael Taylor

Filing

UNPUBLISHED OPINION FILED. [16-41388 Affirmed as Modified] Judge: FPB, Judge: LHS, Judge: GJC. Mandate issue date is 12/07/2017 for Appellant Michael Taylor [16-41388]

Case: 16-41388

Document: 00514238350

Page: 1

Date Filed: 11/15/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41388
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 15, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL TAYLOR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1134-1

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Michael Taylor appeals his jury trial convictions and cumulative 180month prison sentence for possessing with intent to distribute 1,000 kilograms
or more of a mixture and substance containing a detectable amount of
marijuana, see 21 U.S.C. § 841(a)(1), (b)(1)(A), and for possessing a firearm in
furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(i).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-41388

Document: 00514238350

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No. 16-41388
Additionally, he challenges a special condition of supervised release.

We

affirm, but we modify the special condition of supervised release.
Reviewing for plain error, we reject Taylor’s contention that the district
court erred when charging the jury. See FED. R. CRIM. P. 30(d); FED. R. CRIM.
P. 52(b); Puckett v. United States, 556 U.S. 129, 136 (2009). Taylor points to
no “precedent directly supporting” the contention that the district court
lowered the Government’s burden of proof for conviction by omitting the phrase
without hesitation in its instruction about reasonable doubt, using the phrase
heavily in doubt when remarking on the burden of proof in response to notes
from the jury, or doing both these things. See United States v. Miller, 406 F.3d
323, 330 (5th Cir. 2005). In no case cited by Taylor was an instruction found
to be plainly erroneous because it omitted wording suggesting reasonable
doubt was the kind of doubt that would make a person hesitate to act. Nor
does Taylor cite any authority holding that a remark in response to a jury
question referring to “heavily in doubt” creates error when the instructions
repeatedly emphasize the government’s heavy burden. At best, Taylor shows
only that the question of error may be “subject to reasonable dispute.” Puckett,
556 U.S. at 135.
We reject also the contention that the written judgment’s directive that
Taylor participate in an addiction treatment program as instructed and
deemed necessary by the probation officer creates ambiguity concerning the
scope of the district court’s delegation of sentencing authority. We pretermit
the question of the standard of review for this claim, see United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008), as Taylor cannot prevail even
under the lenient abuse of discretion standard, see United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011). Nothing in the transcript of the sentencing
hearing indicates that the district court did not intend to impose a mandatory

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No. 16-41388
special condition concerning a substance addiction treatment program during
Taylor’s supervised release. To the contrary, the record shows that the district
court recognized Taylor’s special needs and the court’s “core duty” to consider
“appropriate treatment for prisoners.” United States v. Guerra, 856 F.3d 368,
369 (5th Cir. 2017). In sum, we have no reason to believe that the district court
did not intend “that treatment be mandatory,” with the probation officer to
decide the details of Taylor’s participation. Guerra, 856 F.3d at 370. But to
dispel any doubt, we MODIFY the sentence to provide that participation in a
substance addiction treatment program while Taylor is on supervised release
is mandatory, with details of treatment to be supervised by the probation
officer. See id.; 28 U.S.C. § 2106.
AFFIRMED as modified.

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