UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40565
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
May 8, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
PER CURIAM:
Alfredo Martinez pleaded guilty to possession of less than 50
kilograms of marijuana with intent to distribute, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). At his 15 May 2000
sentencing hearing, the court imposed a 36-month term of
imprisonment and a four-year term of supervised release; and, in
lieu of a fine, the court ordered him to serve 100 hours of
community service during his first year of supervised release. No
other conditions of supervised release were mentioned.
In the district court’s subsequent written judgment, the court
noted another condition of release in addition to the 100 hours of
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Circuit Judge of the Ninth Circuit, sitting by designation.
community service requirement. Under the heading “Special
Conditions of Supervision,” the court wrote:
The defendant shall participate in a program, inpatient
or outpatient, for the treatment of drug and/or alcohol
addiction dependency or abuse which may include, but not
be limited to urine, breath, saliva and skin testing to
determine whether the defendant has reverted to the use
of drugs and/or alcohol. Further, the defendant shall
participate as instructed and as deemed necessary by the
probation officer and shall comply with all the rules and
regulations of the treatment agency until discharged by
the Program Director with the approval of the probation
officer. The defendant shall further submit to drug
detection techniques in addition to those performed by
the treatment agency, as directed by the probation
officer. The defendant will incur costs associated with
such drug/alcohol detection and treatment, based on
ability to pay as determined by the probation officer.
Martinez challenges this condition of supervised release.
A defendant has a constitutional right to be present at
sentencing. See United States v. A-Abras, 185 F.3d 26, 29 (2d Cir.
1999); see also Fed. R. Crim. P. 43(a) (“The defendant shall be
present . . . at the imposition of sentence . . . .”). Therefore,
when there is a conflict between a written sentence and an oral
pronouncement, the oral pronouncement controls. See United States
v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000). If,
however, there is merely an ambiguity between the two sentences,
the entire record must be examined to determine the district
court’s true intent. See id.
The district court’s failure to mention mandatory drug
treatment in its oral pronouncement constitutes a conflict, not an
ambiguity. “In this Circuit, it is well settled law that where
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there is any variation between the oral and written pronouncements
of sentence, the oral sentence prevails.” United States v. Shaw,
920 F.2d 1225, 1231 (5th Cir. 1991). It is significant that
participation in a drug treatment program was a “special” condition
of supervised release. See United States v. Crea, 968 F. Supp.
826, 833 (E.D.N.Y. 1997) (differentiating a “special” condition
requiring abstention from alcohol and substance abuse treatment
from “standard” conditions that do not impose such significant
restrictions on personal liberty and do not have to be specifically
listed in the oral pronouncement), aff’d, United States v.
Truscello, 168 F.3d 61, 64 (2d Cir. 1999); cf. United States v.
Smith, 45 F. Supp.2d 914, 916-17 (M.D. Ala. 1999) (holding that
even though oral sentence did not specifically state that defendant
had to undergo drug testing, there was no conflict with written
judgment because the judge pronounced that the defendant would have
to comply with the “standard” conditions of release and at that
time drug testing was a standard condition required by statute).
Because the district court failed to mention mandatory drug
treatment, a special condition, at sentencing, we remand the case
for the district court to amend its written judgment to conform to
its oral sentence.
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