Case: 21-10817 Document: 00516421458 Page: 1 Date Filed: 08/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 5, 2022
No. 21-10817
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jordan Michael Porter,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CR-270-1
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Don R. Willett, Circuit Judge:
In this sentencing appeal following a child pornography conviction,
Appellant asks us to disturb the district court’s revocation judgment,
claiming the judge (1) relied on unsworn statements by the prosecutor, and
(2) announced conditions of supervised release that conflicted with the
written judgment. But the record belies both claims. For one, ample evidence
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supported the prosecutor’s comments—precluding any legitimate claim of
plain error. Second, the record reveals that the challenged discrepancy
produced nothing more than ambiguity that is resolved by the district court’s
clearly expressed intent: reimposition of the original conditions of supervised
release. We AFFIRM.
I
Jordan Michael Porter pleaded guilty to receipt of child pornography
in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced Porter
to 84 months of imprisonment followed by a 10-year term of supervised
release. Porter unsuccessfully appealed. 1
It took less than a year after his release for Porter to violate the terms
of supervision. Specifically, Porter possessed unauthorized cellular devices,
failed to attend sex offender treatment, 2 failed to report as directed, and
viewed pornographic materials. Porter later attended an administrative
hearing at which his probation officer (and the supervisory probation officer)
“made sure . . . Porter had a clear understanding of all his conditions.”
Thereafter, Porter’s probation officer made an official report to the district
court and recommended no formal action.
Two months passed before Porter again found himself in hot water.
As before, Porter failed to submit his monthly supervision report or
participate in his sex offender treatment. The probation officer also reported
that Porter was found in possession of another unauthorized cell phone,
1
Although we dismissed Porter’s original appeal as frivolous, we ordered a limited
remand for the purpose of correcting a clerical error in the judgment.
2
Porter’s sex offender counselor also reported that “Porter has shown to be
disengaged during his group counseling sessions and his participation in . . . treatment is
considered poor.”
2
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which he initially denied but later admitted. Porter surrendered the phone,
and the resulting search revealed a variety of unauthorized photographs
depicting scantily clad women. It also seemed that Porter erased some of the
phone’s contents before turning it over. The probation officer directed
Porter to schedule a polygraph examination, but Porter never did. Porter’s
probation officer subsequently reported this behavior to the district court
under penalty of perjury and, this time, sought revocation of Porter’s
supervised release. 3
Porter pleaded true to the probation officer’s reports and asked the
court to continue (rather than revoke) his supervision. In support, Porter
offered a host of explanations for his noncompliance, expressed a desire to
get back into treatment, and voiced understanding that the original
conditions of supervised release were mandatory.
The prosecutor was unconvinced. In particular, she explained “[i]t
seems to me that from talking to probation he has not taken [the conditions
of his supervised release] seriously at all.” She also argued that Porter
“doesn’t want to do it, and he may [say] something different today when he
is faced with more prison time,” but “he has given little to no effort according
to probation.” The prosecutor then requested that the court impose a nine-
month custodial sentence and return Porter to “supervised release for the
entire term or what is remaining of the [original] term of supervised release.”
The district court ultimately revoked Porter’s supervised release and
sentenced him to nine months of imprisonment. In particular, the judge
believed revocation was justified by “the record and . . . evidence . . .
produced [during the hearing] . . . as well as that set forth in the [probation
3
Shortly thereafter, the probation officer submitted an addendum detailing yet
another phone-related violation. But the United States later withdrew this allegation.
3
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officer’s] [p]etition.” The judge also commented that he “agree[d] with the
government,” explaining that he had “looked over things and [concluded]
there ha[d] been significant noncompliance.” As for the term of
imprisonment, the judge made clear that the nine-month sentence was “fair,
just, and reasonable” as well as “necessary for deterrence and protection of
the public.”
The judge then stated—twice—that he was “reimpos[ing] the ten
years [of supervised release] that [the court] initially imposed.” Rather than
stop there, the judge also sought clarification from Porter’s probation officer:
“[i]s it necessary for the [c]ourt to read all of these conditions or is it
sufficient . . . to state that [the court] reimposes the conditions previously
imposed?”
Unfortunately, the record does not reflect an answer to this question. 4
But what happened next is still helpful: Porter’s probation officer affirmed
that (1)“they are the same conditions,” and (2) Porter’s counsel affirmed
that Porter was “familiar with those initial conditions.” The judge then
turned his focus directly to Porter, asking “do you know what those
conditions are? The [c]ourt does not want the case to come back . . . because
of some technicality.” “I have no problem reading them into the record,”
the judge went on, “but I want to make certain nothing is going to be said
later on that you were not aware of the terms or conditions of your
supervision.”
4
The transcript indicates that the judge asked an immediate follow-up question:
“[a]re not these conditions officially imposed also?” This transcription is obviously
incorrect given both the context and subsequent answer from Porter’s counsel. The United
States suggests that the judge “might have instead asked, ‘[a]re not these conditions
already imposed also?’” But, as explained in detail below, we need not speculate on what
was said to resolve this case.
4
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It appears the judge did not wait for an answer. Instead, “[o]ut of
abundance of caution,” he read the conditions in an attempt to avoid any
“misunderstanding as to what the [c]ourt imposed.” The following was
among the conditions orally pronounced:
You must not view or possess any visual depiction as defined
by Title 18 United States Code Section 2256(5) including any
photograph, film, video, picture, or computer or computer-
generated image or picture, whether made or produced by
electronic—electronic, mechanical or other means of sexually
explicit conduct as defined in Title 18 United States Code
Section 2256(2).
The written judgment, however, contained the following condition of
supervised release, which also appeared in the court’s original judgment of
conviction:
The defendant shall neither possess nor have under his control
any sexually oriented, or sexually stimulating materials of
adults or children. This includes visual, auditory, telephonic,
electronic media, email, chat communications, instant
messaging, or computer programs. The defendant shall not
patronize any place where such material or entertainment is
available. The defendant shall not use any sex-related
telephone numbers.
Porter filed a timely notice of appeal.
II
Porter argues that the district court erred by (1) relying on the
prosecutor’s unsworn statements to revoke Porter’s supervised release, and
(2) imposing conditions of supervised release in the written judgment that
were more burdensome than those orally pronounced. As explained below,
neither argument has merit.
5
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A
The standard of review governing Porter’s first claim is clear-cut.
Porter made no objection to the district court’s alleged reliance on unsworn
statements, which means Porter must now demonstrate plain error. That is,
he must identify “(1) an error, (2) that is clear or obvious, and (3) that affects
his substantial rights.” 5 Only once these conditions are met may we then
“exercise discretion to correct the error, . . . if (4) th[at] error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” 6
For at least two reasons, Porter cannot shoulder his burden. First, his
claim of error relies principally on United States v. Foley, 946 F.3d 681 (5th
Cir. 2020). But Foley and this case are leagues apart. The district court in
Foley erred by relying on a revocation petition (to which the appellant did not
plead true) that “contain[ed] only bare allegations” and did not “provide any
context regarding the underlying facts and circumstances surrounding [either
his] arrest or his conduct leading to the arrest.” 7 Here, however, the
prosecutor’s comments were not only corroborated by the detailed, sworn
assertions in the revocation petition, but the petition also came with a
potpourri of evidence memorializing Porter’s repeated noncompliance—
ranging from signed notices of program failures to the extraction report that
catalogued each unauthorized image found on the unauthorized device.
Porter’s reliance on Foley is misplaced.
5
See United States v. Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008). See generally
Puckett v. United States, 556 U.S. 129, 135 (2009).
6
Rojas-Luna, 522 F.3d at 504 (internal quotation marks and citation omitted);
accord Puckett, 556 U.S. at 135.
7
946 F.3d at 687.
6
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Second, even were we to assume plain or obvious error, Porter cannot
demonstrate any impact upon his substantial rights. This much is evident in
his concession that “the court might have found that . . . [Porter] lacked
respect for the conditions of supervision even if the [p]rosecutor had not
related the views of [p]robation.” Even the most cursory review of Porter’s
revocation petition demonstrates his indifference to the conditions of
supervision. 8 Neither can we overlook the fact that Porter pleaded true to the
allegations in the revocation petition. 9
B
The standard of review for Porter’s second claim is similarly
straightforward. We review discrepancies between an oral pronouncement
and written judgment for an abuse of discretion when “the defendant had no
opportunity to object to the unpronounced conditions,” and we review for
plain error “if [the defendant] had the opportunity but failed to object.” 10
This case resides in the latter category. Not only did the district court
twice state that it was “reimpos[ing] the ten years [of supervised release] that
[the court] initially imposed,” but the judge subsequently asked Porter’s
8
Before being discharged from group counseling for non-compliance, for example,
Porter was reportedly “disengaged” and his participation was said to be “poor.” Porter’s
probation officer, too, recounted that “interventions to [Porter’s] noncompliance
have . . . been ineffective” and that “[Porter] is nonresponsive to supervision.” The record
also reveals that Porter received, and promptly ignored, formal counseling on his conditions
of release after the first bevy of reported violations.
9
Compare United States v. Hinson, 429 F.3d 114, 119 (5th Cir. 2005) (observing that
“revocation would have been justified based on [the appellant’s] admission alone”), with
Foley, 946 F.3d at 687 (observing that the appellant had not himself corroborated the basis
for revocation).
10
United States v. Gomez, 960 F.3d 173, 179 (5th Cir. 2020); see also, e.g., United
States v. Rouland, 726 F.3d 728, 733–34 (5th Cir. 2013); United States v. Garza, 387 F.
App’x 462, 463 (5th Cir. 2010) (per curiam).
7
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probation officer whether it was “sufficient . . . to state that [the court]
reimposes the conditions previously imposed” and questioned both Porter
and his counsel as to whether Porter was “familiar with those initial
conditions.” 11 We are therefore confident that Porter did not want for an
opportunity to object. 12 Instead, “[h]e didn’t take the bait.” 13
This, of course, brings us to the question du jour: did the oral
pronouncement conflict with the written judgment? Porter answers in the
affirmative, focusing on the no-sexually-explicit-materials condition and
ignoring the district court’s earlier references to reimposition and the
“conditions previously imposed.” The United States, on the other hand,
counters with its own brand of cherry-picking—ignoring all but the first,
general portion of the pronouncement and arguing there can be no resulting
conflict with the written judgment. The correct focus lies in between.
We begin with the obvious: when confronted with a discrepancy
between the oral pronouncement and written judgment, the Constitution
typically requires that the former prevail. 14 But this case is not typical. Here,
the challenged discrepancy grows from an inconsistency within the oral
pronouncement. This brand of discrepancy yields ambiguity, which is often
resolved by looking to the record for the district court’s intent. 15 If the record
11
Porter’s counsel answered in the affirmative.
12
See, e.g., United States v. Diggles, 957 F.3d 551, 558 (5th Cir. 2020) (en banc)
(observing that the “opportunity [to object] exists when the court notifies the defendant at
sentencing that conditions are being imposed,” and holding that oral adoption of the
previously proposed conditions was sufficient).
13
See United States v. Hinojosa, 956 F.3d 331, 334 & n.3 (5th Cir. 2020) (describing
lack of objection to conditions of supervised release).
14
See Diggles, 957 F.3d at 557–58.
15
See, e.g., United States v. Tanner, 984 F.3d 454, 456–57 (5th Cir. 2021) (looking
to the record to resolve the internal inconsistency, disclaiming conflict).
8
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cannot resolve this ambiguity, however, we will vacate and remand for
resentencing—not reformation. 16 This remedial distinction derives from the
fact that only unambiguous pronouncements “control.” 17
Against this backdrop, two points demonstrate that Porter does not
merit relief. First, the record clearly reveals that the district court intended
to reimpose all of Porter’s original terms. The judge (1) stated twice that he
was “reimpos[ing] the ten years [of supervised release] that [the court]
initially imposed,” (2) sought clarification as to whether he could “state that
[the court] reimposes the conditions previously imposed,” (3) sought and
received confirmation that Porter was “familiar with those initial
conditions,” and (4) punctuated this entire exchange by gratuitously reading
the conditions into the record “[o]ut of abundance of caution,” hoping to
prevent Porter’s “case [from] com[ing] back . . . because of some
technicality.” We cannot imagine clearer evidence of intent. As such, the
record erases any ambiguity introduced by the judge’s misstatement.
Second, even were we to assume plain or obvious error, the unusual
facts of this case belie any impact on Porter’s substantial rights. The
Constitution compels a pronouncement requirement because imposing an
16
See, e.g., United States v. Barber, 865 F.3d 837, 842 (5th Cir. 2017) (vacating and
remanding for resentencing because the oral pronouncement was “impermissibly
ambiguous”); United States v. Garcia, 604 F.3d 186, 191 (5th Cir. 2010) (same, citing
unresolvable “ambiguities” within the pronouncement); United States v. Thompson, 254 F.
App’x 278, 280 (5th Cir. 2007) (per curiam) (same, the written judgment conflicted with
the internally inconsistent oral pronouncement); see also, e.g., United States v. Story, 439
F.3d 226, 233 (5th Cir. 2006) (“‘[T]he interest of judicial economy and fairness to all
concerned parties’ require that unclear or ambiguous sentences be vacated and remanded
for clarification.” (citation omitted)).
17
See, e.g., United States v. Zepeda, 329 F. App’x 647, 649 (7th Cir. 2009) (“It is
well-established that an oral pronouncement of sentence, if unambiguous, controls over a
conflicting written one.”).
9
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unexpressed, discretionary condition “is tantamount to sentencing the
defendant in absentia.” 18 Yet Porter was present for the entire
pronouncement—as was the case when the district court first sentenced him
to identical terms of supervised release—and yet he sat idly by while the
judge repeatedly emphasized an intent to reimpose the original terms of
supervised release. This leaves no room to argue Porter was somehow
sentenced in absentia. 19
* * *
AFFIRMED.
18
Tanner, 984 F.3d at 456 (quoting Diggles, 957 F.3d at 557).
19
See, e.g., United States v. Castillo, No. 19-10649, 2021 WL 4237553, at *5 (5th Cir.
Sept. 16, 2021) (per curiam) (finding no plain error when the appellant had notice of the
reimposed conditions because they were a part of her original sentence, she did not object
at the revocation hearing, and she was subject to the same conditions post-revocation); cf.
also, e.g., United States v. Brown, 855 F. App’x 176, 179 (5th Cir. 2021) (per curiam) (finding
no plain error when a special assessment was not orally pronounced at the revocation
hearing because, inter alia, it was “already . . . imposed as part of the final judgment . . . and
need not have been reimposed” upon revocation).
10