                                                         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ordered the original opinion withdrawn and this opinion filed to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.




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