Case: 18-40624 Document: 00514918621 Page: 1 Date Filed: 04/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40624 FILED
Summary Calendar April 16, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JHOANNA RAMOS, also known as JoJo,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:17-CR-121-3
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Following her guilty plea conviction for conspiracy to possess with the
intent to distribute methamphetamine, Jhoanna Ramos was sentenced to 135
months of imprisonment, followed by a five-year term of supervised release.
At sentencing, the district court advised that she would be required to comply
with the mandatory and special conditions of supervised release set forth in
the PSR. Its written judgment specified, under the heading of “special
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40624 Document: 00514918621 Page: 2 Date Filed: 04/16/2019
No. 18-40624
conditions of supervised release,” that Ramos would be required to provide the
probation officer with any requested financial information for purposes of
monitoring her efforts to maintain lawful employment and that she must
participate in, and pay for, a program of testing and treatment for drug abuse.
Ramos now argues that the district court abused its discretion in
imposing, as part of its written judgment, the two special conditions which had
been listed in the PSR but were not orally pronounced at sentencing. The
Government’s assertion that review is limited to plain error is incorrect. See
United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018) (reviewing
for abuse of discretion under identical facts and finding cases applying plain
error review where defendants were afforded a “unique opportunity to object,”
including United States v. Rouland, 726 F.3d 728, 734 (5th Cir. 2013), to be
distinguishable).
A defendant “has a constitutional right to be present at sentencing.”
United States v. Bigelow, 462 F.3d 378, 380-81 (5th Cir. 2006) (internal
quotation marks and citation omitted). If there is a conflict between the
sentence imposed in court and the written judgment, the oral pronouncement
controls. United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). There
is no conflict between the written judgment and oral pronouncement if the
judgment includes supervised release conditions that are mandatory,
standard, or recommended by the Sentencing Guidelines, even if the conditions
were not orally pronounced at sentencing. United States v. Torres-Aguilar,
352 F.3d 934, 938 (5th Cir. 2003). However, when the written judgment
contains a special condition of supervised release that was not in the oral
pronouncement of sentence, a conflict exists, the oral pronouncement controls,
and the written judgment should be reformed by deleting the special condition.
See id. at 936.
2
Case: 18-40624 Document: 00514918621 Page: 3 Date Filed: 04/16/2019
No. 18-40624
Here, the district court abused its discretion in imposing the
unpronounced financial-information provision when such condition was not
recommended under the Guidelines, is not a mandatory condition adopted by
the Eastern District of Texas, and is not the equivalent of any standard
condition. See Rivas-Estrada, 906 F.3d at 348, 350-51; Torres-Aguilar,
352 F.3d at 938; see also U.S.S.G. § 5D1.3(d)(3). The district court similarly
abused its discretion when it imposed the mandatory-drug-treatment provision
without specifically announcing it at sentencing. 1 See Rivas-Estrada, 906 F.3d
at 348-51. Although the record indicates that Ramos had a history of drug
abuse and thus that treatment could be recommended under § 5D1.3(d)(4), the
written judgment form adopted by the district court, form AO 245B, specifically
lists the drug-treatment condition as a “special” rather than “standard”
condition and thus creates a conflict between the written judgment and oral
pronouncement of sentence. See id; Rouland, 726 F.3d at 736-37; Bigelow,
462 F.3d at 381-82; see also Martinez, 250 F.3d at 942.
Accordingly, the district court’s judgment is VACATED IN PART AND
REMANDED for the district court to amend its written judgment to conform
to its oral sentence by removing the two unpronounced special conditions of
supervised release.
1 The Government’s assertion that this court should not review Ramos’s challenge to
the imposition of the drug-treatment condition because she invited or waived the error by
requesting drug treatment during incarceration is not well-taken. Ramos’s request to
participate in an approved drug-treatment program while in custody did not waive her right
to object to the imposition of a special condition of supervised release, included in the
judgment but not announced at sentencing, requiring her to participate in, and pay for,
substance abuse treatment while on supervision following her release from custody, nor did
such request invite any error related thereto. See United States v. Salazar, 751 F.3d 326,
332 (5th Cir. 2014); see also United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002).
3