     Case: 13-10861       Document: 00512609406          Page: 1     Date Filed: 04/28/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                     No. 13-10861                                  April 28, 2014
                                   Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

GEORGE HENRY MARK,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:13-CR-24


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       After violating the terms of his supervised release, George Henry Mark
was sentenced to 18-months’ imprisonment and 18-months’ supervised release.
At his revocation hearing, the district court ordered Mark to participate in drug
treatment. He asserts the subsequent written judgment improperly added a
special condition that he submit to drug testing as part of the drug-treatment




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                No. 13-10861

program, thereby broadening the drug-treatment condition announced at his
revocation hearing.
      Because Mark could not have objected at the revocation hearing to the
condition imposed in the subsequent judgment, review is for abuse of
discretion. E.g., United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003). “The key determination is whether the discrepancy between the oral
pronouncement and the written judgment is a conflict or merely an ambiguity
that can be resolved by reviewing the rest of the record.” United States v.
Mireles, 471 F.3d 551, 558 (5th Cir. 2006). A conflict arises if the written
judgment differs from the orally pronounced sentence by either adding a
special condition or broadening a condition. See id.; Torres-Aguilar, 352 F.3d
at 936. Where there is a conflict, the district court is required to reform the
judgment by deleting the special condition not pronounced orally. Mireles, 471
F.3d at 558.
      Drug testing is both a special condition and a mandatory condition of
Mark’s supervised release.    The mandatory condition, which he does not
challenge, requires him to “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”. (Emphasis added.)      In announcing the special
condition, the district court ordered Mark to “participate in a program
approved by the United States Probation Office for the treatment of narcotic,
drug, or alcohol dependency”.    The written judgment mandated the drug-
treatment program “include testing for the detection of substance use or
abuse”. Because drug testing is generally a component of drug-treatment
programs and a properly imposed mandatory condition of Mark’s supervised
release, the judgment’s inclusion of this requirement, in the context of the
special condition that he participate in drug treatment, did not add a new



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                                  No. 13-10861

condition or broaden the special condition pronounced orally. See, e.g., Mireles,
471 F.3d at 558–59; United States v. Gray, No. 13-10242, 2013 WL 6247433
(5th Cir. 4 Dec. 2013) (unpublished), petition for cert. filed, No. 13-8996 (U.S. 4
Mar. 2014).
      AFFIRMED.




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