United States Court of Appeals
Fifth Circuit
F I L E D
June 2, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
__________________________
No. 01-41019
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VEGA III,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Vega III pleaded guilty to one count
of a two-count indictment charging him with possession with intent
to distribute over 1,000 kilograms of marijuana in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). He now appeals his sentence,
arguing that the district court’s oral and written judgments
conflict because the written judgment includes several special
*
This opinion replaces this panel’s opinion filed on March 17,
2003, see United States v. Vega, 324 F.3d 798 (5th Cir. 2003), the
mandate of which we held, sua sponte. In granting rehearing, we
ordered the original opinion withdrawn and this opinion filed to
replace it.
conditions of supervised release that were not mentioned at the
sentencing hearing. For the following reasons, we affirm.1
I. FACTS AND PROCEEDINGS
Vega alleges that during the sentencing hearing, the district
court never mentioned several special conditions of supervision
that subsequently appeared in the written judgment, including (1)
his responsibility for the costs of drug and alcohol treatment; (2)
a provision requiring inpatient drug treatment, if necessary; (3)
specific drug testing methods; and (4) the requirement that he
comply with the rules and regulations of the drug treatment agency.
Vega argues that because these special conditions are more
restrictive than those originally imposed at sentencing, the oral
and written judgments conflict and the additional requirements
included only in the written judgment must be excised.
II. ANALYSIS
We have previously rejected many of the arguments now
advanced by Vega. First, we have expressly held that 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
1
We review objections to special conditions imposed in a
written judgment for abuse of discretion. United States v. Warden,
291 F.3d 363, 365 n.1 (5th Cir.2002)(explaining that normally
objections raised for the first time on appeal are reviewed for
plain error, but “because [the defendant] had no opportunity to
object to or comment on the special conditions as imposed in the
written order, we will review the district court’s imposition of
special conditions for an abuse of discretion”).
2
written and oral judgments, but “creates, if anything, an
ambiguity.”2 This ambiguity is resolved by examining the record
for evidence of the sentencing court’s intent. As the requirement
that a defendant bear the costs of his drug treatment is “clearly
consistent” with the court’s intent that he attend treatment, the
two judgments do not conflict and no modification of the sentence
is warranted.
Several of Vega’s remaining arguments are similarly meritless.
First, the district court specifically mentioned inpatient
treatment at sentencing, so its inclusion in the written judgment
is entirely consistent with the oral sentence. Second, the
requirement that Vega “comply with all the rules and regulations of
the treatment agency” is, for obvious reasons, consistent with the
drug treatment condition ordered at sentencing.3
The only close issue in this appeal is whether the district
court’s inclusion of the special condition of “further drug-
detection techniques in addition to those performed by the
treatment agency” in the written judgment conflicts with the oral
2
Warden, 291 F.3d at 365.
3
Vega also argues that the district court improperly delegated
authority to the probation officer to determine the length of his
drug treatment. Because the district court gave the probation
officer such authority at sentencing, and Vega did not object, our
review is for plain error only. We conclude that any error by the
district court in this regard was not plain or obvious, as we have
not previously addressed this issue. See United States v.
Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994)(en banc), abrogated
in part, Johnson v. United States, 520 U.S. 461 (1997).
3
sentence —— which specified only that Vega “participate in a
program for drug and alcohol abuse addiction as required by the
probation office, including inpatient if required.”
Although we have not squarely addressed this question in a
published opinion, we have long held that a defendant has a
constitutional right to be present at sentencing.4 This
constitutional right is the foundation of the rule that if there is
a conflict between the oral pronouncement and written judgment, the
oral pronouncement controls.5 Under this reasoning, we have held,
for example, that if the district court fails to mention a special
condition at sentencing, its subsequent inclusion in the written
judgment creates a conflict that requires amendment of the written
judgment to conform with the oral pronouncement.6
At Vega’s sentencing hearing, the district court orally
imposed imprisonment, a five-year term of supervised release, and
200 hours of community service. The court also ordered Vega to
“abide by standard conditions [of supervised release] adopted by
this Court” and to “participate in a program for drug and alcohol
abuse addiction as required by the probation department, including
4
United States v. Martinez, 250 F.3d 941, 941 (5th Cir. 2001)
(citing Fed. R. Crim. P. 43(a)(“The defendant shall be present
at...the imposition of sentence....”).
5
Id.
6
Id. at 942 (“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 its oral sentence.”).
4
inpatient if required.” The “standard conditions” that the court
referred to appear in General Order No. H-1996-10 of the United
States District Court for the Southern District of Texas (the
“General Order”). The General Order, which applies throughout the
Southern District, is a formal adoption of the “Mandatory and
Standard Conditions of Supervision for persons placed on Probation
or Supervised Release as set forth in forms AO 245B, 245C, and
245D.”
In this case, the district court entered the written judgment
using AO Form 245B. That form provides, as a condition of
supervision, that “[t]he defendant shall submit to one drug test
within 15 days of release from imprisonment and at least two
periodic drug tests thereafter, as directed by the probation
officer.” Although this condition is mandatory, it may be
suspended if the court determines that the defendant poses a low
risk of future substance abuse.7 Here, the district court made no
such determination. Because the court advised Vega that he had to
comply with the standard conditions adopted by the court, which
include the conditions listed on AO Form 245B, we conclude that the
drug testing condition was properly applied to Vega at the
sentencing hearing.8
7
See 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(4).
8
Although we require special conditions like drug treatment to
be included in the oral pronouncement of sentence, see Martinez,
250 F.3d at 942, “explicit reference to each and every standard
condition of supervision is not essential to the defendant’s right
5
In addition to adopting particular mandatory and standard
conditions of supervision, the General Order also sets forth eight
special conditions that the district court may apply to the
defendant at the time of sentencing. Special Condition No. 2 of
the General Order, which the district court incorporated verbatim
in the written judgment here, provides:
DRUG TREATMENT: 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 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 such 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.9
Although we initially concluded that the additional “techniques”
to be present at sentencing.” United States v. Truscello, 168 F.3d
61 (2d Cir.), cert. denied, 528 U.S. 933 (1999). This difference
in law reflects the distinction between the general applicability
of the standard (and mandatory) conditions and the discretionary
applicability of the special ones.
9
Emphasis added. The brief that the government filed in this
case was bare bones, to say the least. We were not aware of the
General Order until the government filed its petition for panel
rehearing. As we are limited to deciding cases on the briefs and
the record before us, and as the parties sometimes fail to give us
a complete picture of the proceedings below, it would be helpful in
cases like this one if the sentencers of the Southern District
would expressly refer to the General Order at sentencing when they
intend to incorporate its terms into the written judgment later.
6
provision emphasized above is unrelated to the drug treatment
orally ordered at sentencing and thus constitutes a conflict
between the written and oral judgments, our re-examination of that
conclusion in our own sua sponte “paper” rehearing of the matter
satisfies us that there is no conflict presented, in either the
legal or constitutional sense.
As Vega was already obligated, as a mandatory condition of his
supervised release, to submit to periodic drug testing at the
direction of the probation officer, the inclusion in the written
judgment of the language that Vega challenges did not create a
conflict with the oral pronouncement of sentence. To the contrary,
the provision is a means of reconciling the mandatory condition of
drug testing with the special condition of drug treatment, both of
which were properly and clearly applied at Vega’s sentencing
hearing. Because drug testing is a likely component of any drug
treatment program, the provision simply clarifies that Vega’s
participation in such a program does not free him from his
obligation to submit to drug testing at the direction of his
probation officer —— even if the technique chosen by the probation
officer differs from that of the treatment agency. Thus, when the
provision that Vega challenges is considered in its proper context,
it becomes clear that the written judgment does not impose more
restrictive conditions than those orally expressed at sentencing.
That being the case, we affirm Vega’s sentence as imposed.
7
III. CONCLUSION
For the foregoing reasons, all aspects of Vega’s sentence,
oral and written, are, in all respects,
AFFIRMED.
8