United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 16, 2004 December 3, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40055
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
AUGSTIN TORRES-AGUILAR
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:
Defendant Augstin Torres-Aguilar pleaded guilty to illegally
reentering the United States after previously having been
deported, see 8 U.S.C. § 1326(a) (2000), and was sentenced to 250
days imprisonment, time served, and one year of supervised
release. Torres-Aguilar appeals the district court’s judgment,
arguing that it improperly included a special condition of
supervised release not mentioned in the oral pronouncement of
sentence. For the following reasons, we AFFIRM.
I. BACKGROUND
1
During Torres-Aguilar’s sentencing hearing, the district
court stated: “I’ll sentence you to 250 days. You’ll be finished
here today or so, and try not to come back. I’ll place you on
one year of supervised release. If you come back during that
time, you’ll get more time in this case.” Other than warning
Torres-Aguilar not to attempt illegally to reenter the United
States, the district court did not allude to any conditions
applicable to the term of supervised release. In its judgment,
however, the district court instructed, “[t]he defendant shall
not possess a firearm, destructive device, or any other dangerous
weapon” during his supervised release. On appeal, Torres-Aguilar
argues that the condition that he not possess “any dangerous
weapon” during his supervised release must be stricken from the
judgment because it conflicts with the terms of the sentence
orally imposed by the district court.1
II. DISCUSSION
Because Torres-Aguilar “had no opportunity to object to or
comment on the special condition[] . . . imposed in the written
order,” on appeal we “review the district court’s imposition of
[the] special condition[] for an abuse of discretion.” United
1
Torres-Aguilar does not also argue that the judgment’s
prohibition on his possessing either a firearm or a destructive
device conflicts with the oral sentence; instead, because federal
law prohibits convicted felons from possessing both types of
devices, he concedes that these are mandatory conditions of a
felon’s sentence that need not be orally pronounced. See United
States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002).
2
States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
In this circuit, “we have long held that a defendant has a
constitutional right to be present at sentencing.” United States
v. Vega, 332 F.3d 849, 852 (5th Cir. 2003). Our precedents
deduce two important corollaries from this rule. First, “when
there is a conflict between a written sentence and an oral
pronouncement, the oral pronouncement controls.” United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If the
differences between the two sentences create merely an ambiguity,
however, then “we must look to the intent of the sentencing
court, as evidenced in the record” to determine the defendant’s
sentence. Warden, 291 F.3d at 365.
In this case, we are presented with the task of drawing a
line between those omissions creating a “conflict” between an
oral pronouncement and the accompanying judgment and those
omissions that create a mere “ambiguity” in the oral sentence
that can be clarified by viewing the written record. In the
past, we have emphasized the importance of whether the condition
omitted from the oral pronouncement was a standard or a special
condition of supervised release. See Martinez, 250 F.3d at 942.
Our acceptance of a district court’s omission of “standard”
conditions from the oral pronouncement derives from the
observation that it is “[i]mplicit in the very nature of
supervised release . . . that certain conditions are necessary to
3
effectuate its purpose.” United States v. Truscello, 168 F.3d
61, 62 (2d Cir. 1999). Accordingly, we have stated that
“‘explicit reference to each and every standard condition of
supervision is not essential to the defendant’s right to be
present at sentencing.’” Vega, 332 F.3d at 853 n.8 (quoting
Truscello, 168 F.3d at 63). The district court may instead
properly rely on the judgment to clarify that these standard
conditions are indeed applicable to the case at hand. Cf.
Warden, 291 F.3d at 365 (explaining that conditions appearing in
the judgment can be used to clarify the meaning of the district
court’s statements at the sentencing hearing). On the other
hand, however, we have held 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.” Vega, 332 F.3d at 852-53 (emphasis added).
Torres-Aguilar argues that the portion of the judgment
prohibiting him from possessing “any other dangerous weapon”
during the supervised release is a “special” condition that must
be pronounced at oral sentencing. He points out that this
condition is included in the list of “‘special’ conditions of
supervised release” that appears in the United States Sentencing
Guidelines. U.S.S.G. § 5D1.3(d)(1). Torres-Aguilar also
contends that a district court may choose not to prohibit a felon
from possessing dangerous weapons during his term of supervised
4
release because the Sentencing Guidelines merely recommend
imposing this condition on a defendant who has been convicted of
a felony. Id. Therefore, he argues that the dangerous weapon
prohibition is a discretionary condition, not one of the
“standard” conditions that a district court may choose not to
mention during a sentencing hearing.2
The government disagrees and argues that the prohibition on
a felon’s possession of a dangerous weapon is a “standard”
condition of supervised release, which the district court was not
required to mention during the sentencing hearing. First, the
government notes that within the United States District Court for
the Southern District of Texas, the bar on possessing a dangerous
weapon has been made a “standard” condition of supervised release
by a general order of the court. Second, although U.S.S.G.
§ 5D1.3(d) refers to the dangerous weapons bar as one of a list
of “special” conditions, the government notes that the Second
Circuit has held that § 5D1.3(d)’s conditions are nevertheless
“standard” because they are regularly applied by district courts
when a defendant meets the specific qualifying factors listed in
the Sentencing Guidelines. See United States v. Jacques, 321
2
We do not address Torres-Aguilar’s alternative
claim––that the “dangerous weapon” prohibition is unreasonable
and overly broad––because he has abandoned this argument by only
briefly mentioning it in a single footnote of his opening brief,
without providing any legal citations or analysis. See United
States v. Green, 964 F.2d 365, 371 (5th Cir. 1992) (noting that
the failure to provide legal or factual analysis constitutes
waiver of an issue).
5
F.3d 255, 263-64 (2d Cir. 2003) (discussing cases).
In United States v. Asuncion-Pimental, the Second Circuit
recognized that the Sentencing Guidelines’ identification of the
conditions enumerated in § 5D1.3(d) as “special” does not
foreclose the possibility that a district court may properly
include them in its judgment without orally informing the
defendant of the conditions at the sentencing hearing. See 290
F.3d at 94 (“The fact that the condition . . . is labeled
‘special’ by the Guidelines is irrelevant . . . .”). This label
is not meant to suggest that the conditions in § 5D1.3(d) are so
unusual that a defendant might not expect them to be imposed;
rather, the label merely emphasizes that defendants convicted of
certain crimes should be subject to these conditions as a matter
of course while other defendants will only be subject to these
conditions if the district court believes they are “appropriate”
in a specific case. See U.S.S.G. § 5D1.3(d) (“The following
‘special’ conditions of supervised release are recommended in the
circumstances described and, in addition, may otherwise be
appropriate in particular cases.”) (emphasis added). As the
Second Circuit explained in Asuncion-Pimental,
While the “standard” conditions provided in § 5D1.3(c)
are presumed suitable in all cases, the suitability of
the conditions provided in § 5D1.3(d) may be contingent
on the presence of specific factors in each case. Where
these factors are present, however, these “special”
conditions are no different in practical terms from
“standard” conditions, that is, they are generally
recommended.
6
290 F.3d at 94.
Specifically, § 5D1.3(d)(1) of the Sentencing Guidelines
makes the following recommendation to federal district courts:
If the instant conviction is for a felony, or if the
defendant was previously convicted of a felony or used a
firearm or other dangerous weapon in the course of the
instant offense––[impose] a condition prohibiting the
defendant from possessing a firearm or other dangerous
weapon.
Neither side disputes that Torres-Aguilar pleaded guilty to the
felony of illegally reentering the United States after previously
being deported. Therefore, “[i]n these circumstances, the
‘special’ condition recommended in § 5D1.3(d)(1) is as standard
as those conditions in § 5D1.3(c),” which the Sentencing
Guidelines specifically refer to as the “standard” conditions of
supervised release. Asuncion-Pimental, 290 F.3d at 95.
Torres-Aguilar attempts to distinguish Asuncion-Pimental
from the instant case, noting that the Second Circuit’s holding
involved a condition in the judgment barring a felon from
possessing a “firearm,” not a “dangerous weapon.” Without
question, the Second Circuit found support for its conclusion
that the firearm prohibition, found in § 5D1.3(d)(1), was a
standard condition of a felon’s supervised release because “the
specific condition that Defendant not possess a firearm is
largely only a clarification of the more general mandatory
condition that he not break the law.” Id. at 94. Despite
Asuncion-Pimental’s reference to the illegality of a felon’s
7
possessing a firearm, later cases have clarified that this was
not the dispositive factor in the case. Instead, the Second
Circuit has extended its holding to encompass all of the
conditions of supervised release recommended in § 5D1.3(d), as
long as the defendant meets the specific prerequisites enumerated
by the Sentencing Guidelines. See, e.g., United States v.
Thomas, 299 F.3d 150, 154 (2d Cir. 2002) (holding that the
“failure to articulate . . . orally” that conditions
§ 5D1.3(d)(2) and (3) apply to a defendant’s sentence of
supervised release does not create a conflict with the judgment
imposing these conditions); cf. id. at 154-55 (holding that a
condition in the judgment, which does not appear in the
Sentencing Guidelines and is “not necessary to clarify or carry
out any of § 5D1.3’s mandatory or standard conditions,” must be
mentioned in the oral pronouncement of sentence if it prohibits
the defendant from engaging in non-criminal behavior).
We are persuaded by the logic of the Second Circuit’s rule.
If the district court orally imposes a sentence of supervised
release without stating the conditions applicable to this period
of supervision, the judgment’s inclusion of conditions that are
mandatory, standard, or recommended by the Sentencing Guidelines
does not create a conflict with the oral pronouncement. Instead,
“‘[t]he written judgment simply clarifie[s] the meaning of that
sentence by specifying what the supervision [is meant] to
entail.’” Warden, 291 F.3d at 365 (quoting Truscello, 168 F.3d
8
at 63); see also Jacques, 321 F.3d at 265 (“Because these
conditions were ordered in accordance with the Guidelines’
recommendations, . . . their inclusion in the written judgment
presents no conflict with the oral sentence and is
permissible.”). Therefore, because the Sentencing Guidelines
recommend that all defendants who have been convicted of a felony
be prohibited from possessing any “dangerous weapon” during the
term of supervised release, we find that this condition of
Torres-Aguilar’s sentence was standard and did not conflict with
the district court’s oral pronouncement of sentence.3
III. CONCLUSION
Accordingly, the defendant’s judgment is AFFIRMED.
3
Our conclusion is reinforced by this court’s recent
observation, in Vega, that the “Mandatory and Standard Conditions
of Supervision” set forth in judgment form AO 245B have been
formally adopted as the standard conditions of supervised release
in the Southern District of Texas. 322 F.3d at 853 (referring to
General Order No. H-1996-10). Importantly, the district court
used form AO 245B in the instant case, and the prohibition
against Torres-Aguilar’s possession of a “dangerous weapon” is
one of the conditions appearing on the form.
9