UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11239
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CARL GILL,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(5:96-CR-32-1-C)
August 10, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Carl Gill appeals the sentence following revocation of his
probation. We affirm in part, vacate in part and remand.
FACTS AND PROCEDURAL HISTORY
*
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opinion should not be published and is not precedent except under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.
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Carl Gill pleaded guilty to two counts of interstate
transportation of child pornography and was placed on probation for
five years. Gill’s probation was subject to standard and special
conditions, including the condition that he participate in mental
health treatment services, as directed by the probation officer,
and that he contribute to the cost of treatment as determined by
the probation officer. In September 2000, the Government moved to
revoke Gill’s probation, contending that he had violated the
conditions of probation by committing theft, by lying to his
probation officer and by failing to report to his probation officer
that he had been terminated from his job and had secured a new job.
The district court revoked Gill’s probation and sentenced him to
18-month concurrent prison terms and three years’ supervised
release, stating orally in court the term of supervised release
would include standard and special conditions, but did not specify
any special conditions to be imposed.
ANALYSIS
a. Length of Imprisonment
Gill contends that the district court reversibly erred by
imposing concurrent 18-month sentences of incarceration, which is
twice as long as the sentence recommended by U.S.S.G. § 7B1.4. We
will uphold a sentence following a probation revocation unless it
is in violation of law or is plainly unreasonable. United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). The trial court’s
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compliance with sentencing statutes is reviewed de novo. Id.
There are no applicable guidelines for sentencing after
revocation of probation. See U.S.S.G. Ch. 7, Pt.A.1 (“At this
time, the Commission has chosen to promulgate policy statements
only.”). Though the district court need not follow the policy
statements in U.S.S.G. § 7B1.4, it must at least implicitly
consider them and the sentencing factors set forth at 18 U.S.C. §
3553(a). Teran, 98 F.3d at 836. Based on our review of the
record, we conclude that the district court implicitly considered
the factors set forth in § 3553(a) in imposing Gill’s probation-
revocation sentences. Given that the sentences were within the
statutory maximum of the original offense to which Gill pleaded
guilty and there are no applicable Guidelines, Gill’s sentences
were not plainly unreasonable. Id. We find no merit in Gill’s
challenge to the length of his sentences of incarceration.
b. Conditions of Supervised Release
Gill argues on appeal that the special conditions imposed by
the district court violated his due process rights because he was
not given notice and opportunity to challenge their
appropriateness.
The district court’s written judgment, entered three days
after its oral pronouncement, included several special conditions,
none of which were set out during the oral sentencing. The first
special condition requires Gill to participate in mental health
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treatment services and to contribute to the cost of such services
in an amount to be determined by the probation officer; this
condition is substantially the same as the one imposed on Gill’s
probation. The second special condition similarly requires Gill to
participate in sex-offender treatment and to contribute to the cost
of such treatment. The third special condition prohibits Gill from
possessing a computer modem or seeking employment which requires
the use of a computer without prior permission of the probation
officer. The fourth condition prohibits Gill from frequenting a
location or activity where persons under the age of 18 congregate,
or from having unsupervised contact with persons under the of 18,
without the permission of the probation officer. The fifth special
condition prohibits Gill from having “any pornographic matter, or
any matter that sexually depicts persons under the age of 18,”
including matter obtained from a computer. The sixth special
condition prohibits Gill from working or volunteering where persons
under the age of 18 congregate, without permission of the probation
officer.
A defendant has a constitutional right to be present at
sentencing. United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001); see also FED.R.CIRM.P. 43(a)(“The defendant shall be present
. . . at the imposition of sentence . . . .”). Therefore, when
there is a variation between the written sentence and an oral
pronouncement, the oral pronouncement controls. Martinez, 250 F.3d
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at 942.
If there is merely an ambiguity between the two sentences, the
entire record must be examined to determine the district court’s
true intent. Id. The district court’s general reference to
“standard conditions,” while arguably ambiguous, was sufficient to
impose all standard conditions required by statute. Id. Further,
the reference to unspecified “special conditions” could reasonably
have been interpreted as an ambiguous reference to the special
conditions originally appended to Gill’s terms of probation. With
that in mind, we have examined the record and determined that the
court intended to require Gill to participate in mental health
treatment and to contribute to the cost of that service in an
amount to be determined by his probation officer, as set out in the
first special condition. However, the silence of the district
court as to any additional special condition amounts to a conflict
between the oral sentence and the written sentence, rather than an
ambiguity. We must therefore vacate those conditions and remand
the case with instructions to the district court to amend its
written judgment to delete the additional special conditions. Id.
CONCLUSION
For the foregoing reasons, we affirm Gill’s term of
imprisonment, and the standard conditions and first special
condition of supervised release. We vacate the remaining special
conditions and remand for correction of the written judgment.
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AFFIRMED IN PART, VACATE IN PART, AND REMAND.
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