United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-20539
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WADE HAMPTON BIGELOW,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CR-117-ALL)
Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Wade Hampton Bigelow does not challenge his conviction in the
United States District Court for the Southern District of Texas.
At issue is only whether the following special conditions for his
supervised release in the written judgment conflict with the oral
pronouncements at his sentencing: (1) participating in drug-
treatment and mental-health programs; and (2) receiving approval
from a probation officer before obtaining any form of
identification. CONVICTION AFFIRMED; SENTENCE VACATED IN PART;
REMANDED.
I.
In February 2005, Bigelow pleaded guilty to knowingly making
a false statement in an application for a passport by using a false
name, and falsely representing a Social Security number to be his
own with the intent to deceive the State Department in order to
receive a passport. Pursuant to a May 2005 sentencing hearing, he
was sentenced, inter alia, to 15 months imprisonment and 36 months
supervised release.
In addition to the standard conditions of supervised release,
the June 2005 written judgment imposed the following special
conditions:
The defendant is required to participate in a
mental health program as deemed necessary and
approved by the probation officer. The
defendant will incur costs associated with
such program, based on ability to pay as
determined by the probation officer.
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 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
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detection and treatment, based on ability to
pay as determined by the probation officer.
The defendant shall not obtain any form of
identification without the prior approval of
the United States Probation Officer.
(Emphasis added.)
At Bigelow’s earlier sentencing hearing, however, the only
special condition of supervised release imposed orally by the
district court was Bigelow’s being required to “tell the probation
officer of every bank account, credit card account, every driver’s
license, every certificate of any kind that you apply for or get.
. . [b]ecause you might lapse back into the same thing. Plus all
the other terms and conditions”. (Emphasis added.)
II.
“[A] defendant has a constitutional right to be present at
sentencing”. United States v. Vega, 332 F.3d 849, 852 (5th Cir.
2003); see FED. R. CRIM. P. 43(a)(3) (requiring “the defendant ...
be present at ... sentencing”). “Th[is] constitutional right ...
is rooted to a large extent in the Confrontation Clause of the
Sixth Amendment, but ... is [also] protected by the Due Process
Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him”. United States v.
Gagnon, 470 U.S. 522, 526 (1985) (internal citation omitted).
Therefore, if the written judgment conflicts with the sentence
pronounced at sentencing, that pronouncement controls. United
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States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If,
however, the difference between the two is only an ambiguity, we
look to the sentencing court’s intent to determine the sentence.
United States v. Warden, 291 F.3d 363, 365 (5th Cir.), cert.
denied, 537 U.S. 935 (2002).
This issue is being raised for the first time on appeal, for
the simple reason that Bigelow had no opportunity at sentencing to
consider, comment on, or object to the special conditions later
included in the written judgment. Accordingly, instead of
reviewing for plain error, we “review the ... court’s imposition of
[those] conditions for an abuse of discretion”. Id. at 365 n.1;
see also United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th
Cir. 2003).
A.
Concerning the district court’s failure to state at sentencing
that Bigelow was required to participate in drug-treatment and
mental-health programs, Bigelow relies primarily on our decision in
Martinez, 250 F.3d at 942. It required the district court to
eliminate participation in a drug-treatment program as a
supervised-release condition because it had not been stated during
the oral sentencing. Id. He also notes drug-treatment and mental-
health programs are listed as “special” conditions under Sentencing
Guideline § 5D1.3(d).
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Bigelow’s claim is consistent with the following language
from Torres-Aguilar: because the court “fail[ed] 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”. 352 F.3d
at 936 (internal quotation omitted; emphasis in original) (noting,
however, “that explicit reference to each and every standard
condition of supervision is not essential to the defendant’s right
to be present at sentencing” (internal quotation omitted; emphasis
added)). Relying on Torres-Aguilar’s holding, the Government
counters that, where clearly warranted, a § 5D1.3(d) “special
condition” is as standard as those in § 5D1.3(c) (standard
conditions of supervised release). Id. at 938.
In Torres-Aguilar, it was undisputed that defendant had
pleaded guilty to the felony of illegally reentering the United
States after having been previously deported. Id. at 937.
Accordingly, although not pronounced at sentencing, the written
judgment imposed the special condition recommended by §
5D1.3(d)(1): “If the instant conviction is for a felony ...
[impose] a condition prohibiting the defendant from possessing a
firearm or other dangerous weapon”. U.S.S.G. § 5D1.3(d)(1). Our
court held: “[B]ecause 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
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supervised release, ... this condition ... was standard and did not
conflict with the district court’s oral pronouncement of sentence”.
Torres-Aguilar, 352 F.3d at 938 (emphasis added).
Furthermore, our court noted its holding was reinforced by the
Southern District of Texas’ adoption of written-judgment form AO
245B, which contains the mandatory and standard conditions of
supervised release for that district: “Importantly, the district
court used form AO 245B in the instant case, and the prohibition
against [defendant’s] possession of ‘a dangerous weapon’ is one of
the conditions appearing on the form”. Id. at 938 n.3 (emphasis
added).
Bigelow was convicted in the Southern District of Texas and
the same judgment form was used. In Torres-Aguilar, however, the
basis for imposing a prohibition against possessing a dangerous
weapon was undisputed and based on objective facts easily
determined from the record — whether defendant had previously been
convicted of a felony. Id. at 937. Here, the facts supporting
imposition of the drug-treatment and mental-health programs are
much more subjective (i.e, “[i]f the court has reason to believe
that [Bigelow] is an abuser of narcotics” or “is in need of
psychological or psychiatric treatment”). U.S.S.G. §
5D1.3(d)(4),(5).
Although the record contains evidence that Bigelow had abused
drugs in the past, he stated at his rearraignment in February 2005
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that he had not used them in “[s]everal years”. Also at
rearraignment, his attorney noted: although Bigelow had “a long
history of psychological problems”, including depression and
possible personality disorders, he was not then suffering such
conditions. Along that line, Bigelow acknowledged at sentencing he
had medical problems and was not being medicated properly at the
time he committed the crime for which he was being sentenced.
Thus, unlike in Torres-Aguilar, factors supporting imposition of
the special conditions for drug-treatment and mental-health
programs were not so clear as to transform these special, into
standard, conditions.
In this regard, although Bigelow participated at his
sentencing, he was unable to effectuate his constitutional right to
be effectively present because he did not receive sufficient notice
that these two special conditions would be imposed in the written
judgment. As noted, by not knowing at sentencing these special
conditions would be imposed later in the written judgment, Bigelow
was unable to object or provide evidence why those conditions were
not warranted. See Gagnon, 470 U.S. at 526 (stating “a defendant
has a due process right to be present at a proceeding whenever his
presence has a relation, reasonably substantial, to the fulness of
his opportunity to defend against the charge” (internal citation
omitted)).
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Furthermore, as discussed, Bigelow was sentenced in the
Southern District of Texas, which uses judgment form AO 245B.
Unlike the prohibition against possessing a dangerous weapon
imposed in Torres-Aguilar, neither the drug-treatment nor mental-
health programs are included as either mandatory or standard
conditions on that form judgment. Instead, they were added to the
form under the heading “SPECIAL CONDITIONS OF SUPERVISION”.
Here, the Government, for the first time on appeal, relied at
oral argument on the district court’s above-quoted, vague,
concluding comment in pronouncing sentence: “Plus all the other
terms and conditions”. The Government asserted the court was
referring to a Southern District of Texas general order, which
lists drug-treatment and mental-health programs as “special
conditions applied to the supervised person by the judge at the
time of sentencing”. General Order No. H-1996-10.
Of course, we have no way of knowing what “other terms and
conditions” the court was referring to, whether to the judgment
form AO 245B or the general order. For this reason, among others,
we generally do not consider assertions made for the first time at
oral argument. See United States v. Ogle, 328 F.3d 182, 191 n.9
(5th Cir. 2003) (“We will generally not consider points raised for
the first time at oral argument.”). Obviously, this is especially
true for undeveloped factual claims of this type. We cannot
consider this belated, speculative assertion.
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Moreover, our decision in Martinez remains binding: “The
district court’s failure to mention mandatory drug treatment in its
oral pronouncement constitutes a conflict, not an ambiguity”. 250
F.3d at 942 (emphasis added). That conviction was also in the
Southern District of Texas. (In so holding, Martinez does not
appear to have had at issue the above-referenced general order’s
listing the drug-treatment program as a special condition, even
though that order was adopted in 1996, well before Martinez’
sentencing in 2000.)
Accordingly, for these two special conditions, the oral
pronouncement, not the written judgment, controls. Id. Therefore,
the judgment must be conformed to that pronouncement by deleting
the drug-treatment and mental-health programs as special
conditions.
B.
Bigelow also contends the written judgment’s requiring him to
receive approval from his probation officer before obtaining any
identification document conflicts with the pronouncement at
sentencing. As noted, the judgment imposed the following
supervised-release special condition: “The defendant shall not
obtain any form of identification without the prior approval of the
United States Probation Officer”. (Emphasis added.) At the earlier
sentencing, however, the court instead ordered Bigelow to “tell the
probation officer of every bank account, credit card account, every
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driver’s license, every certificate of any kind that you apply for
or get ... [b]ecause you might lapse into the same thing”.
(Emphasis added.)
Similarly, in United States v. Thomas, 299 F.3d 150, 154-55
(2d Cir. 2002), the written judgment prohibited the defendant from
possessing any identification in the name of another or assuming
the identity of another person. Id. at 152. This condition was
not pronounced, however, at sentencing. The Second Circuit held
the written condition was not a basic requirement for the
defendant’s release because, inter alia, it encompassed non-
criminal behavior (i.e., carrying a family member’s identification
— even with permission), and was not necessary to clarify or carry
out the mandatory or standard conditions of the defendant’s
sentence. Id. at 155. Accordingly, the court remanded with
instructions “to conform the written judgment to the oral sentence
by striking the offensive condition of release”. Id. at 156.
Here, the written judgment conflicts with the oral
pronouncement by imposing a more burdensome requirement of prior
approval, rather than merely notifying the probation officer when
applying for, or having obtained, a new identification document.
See United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004) (“It
is well settled ... [that] any burdensome punishments or
restrictions added in the written judgment must be removed”.)
(citing Bartone v. United States, 375 U.S. 52, 53 (1963) (rejecting
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additional day added to one-year sentence)). This heightened
burden is well illustrated by the following example offered by
Bigelow:
[U]nder the oral sentence, ... Bigelow could
receive a picture identification for his place
of employment and then inform the probation
officer of its issuance. Under the written
judgment, however, ... Bigelow will be
required to refuse a possible employer’s order
to present himself for purposes of making a
picture identification document until he can
obtain his probation officer’s approval.
Thus, contrary to the Government’s contention, the difference
between the two does not result in a mere ambiguity. As Bigelow
notes, the prior-approval requirement can hinder or postpone his
ability to engage in completely legal activity, such as obtaining
an employment identification card, or even a membership card
allowing him to receive purchase discounts. The notification
requirement in the oral pronouncement achieves the same end of
ensuring he does not attempt to obtain identification in another
name, and does so in a less-burdensome manner than the subsequent
prior-approval requirement in the written judgment. Because the
judgment’s requiring prior approval conflicts with the oral
sentence, the former must be conformed to the latter. See United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003).
III.
For the foregoing reasons, Bigelow’s conviction is AFFIRMED;
his sentence is VACATED in PART; and this matter is REMANDED to
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district court with instructions to conform the written judgment to
the oral pronouncement at sentencing, consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED IN PART; REMANDED
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