     Case: 16-50555      Document: 00513953184         Page: 1    Date Filed: 04/14/2017




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

                                    No. 16-50555
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          April 14, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

ADAM PATRICK DYER, also known as Adam P. Dyer,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-759-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Adam Patrick Dyer pleaded guilty to failure to register as a sex offender.
He appeals his sentence with respect to the imposition of ten special conditions
of supervised release that were not orally pronounced at sentencing, but were
included as special conditions in the written judgment. He seeks to have his
sentence vacated in part and remanded to the district court for modification of
the written judgment by removing the ten special conditions of supervised


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50555

release not announced at sentencing.         Dyer argues that the ten special
conditions are not mandatory, standard, or recommended by the Guidelines
and, therefore, the judgment must be modified to delete the special conditions.
The Government argues that three of the conditions, the requirement of sex
offender treatment, submission to polygraph testing, and submission to
searches of person and property by law enforcement and the probation officer,
having reasonable suspicion of a violation or unlawful activity, are included in
the Standing Order of the Western District of Texas (Standing Order) 1 and,
thus, Dyer had notice of these special conditions.
      Because the special conditions were not pronounced at sentencing, Dyer
had no opportunity to object to them and, thus, the alleged errors are reviewed
for an abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006).
      Because a defendant has a constitutional right to be present at
sentencing, if there is a conflict between the oral pronouncement and the
written judgment, it is the oral pronouncement that will control. United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). There is no conflict if the written
judgment includes conditions not orally pronounced if the conditions are
mandatory or standard. United States v. Torres-Aguilar, 352 F.3d 934, 938
(5th Cir. 2003).     A condition of supervised release recommended in the
Guidelines may be treated as a standard condition if the defendant meets the
specific requirements stated in the Guidelines. Id. at 937-38. The special
conditions may also be contained in a standing order of the district court.
United States v. Vega, 332 F.3d 849, 853-54 (5th Cir. 2003).




      http://www.txwp.uscourts.gov/USPO/Supervision%20Documents/Order%20-
      1

%20Conditions%20of%20Probation%20and%20SR%202011.pdf.


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                                  No. 16-50555

      The condition that Dyer must reside in a residence approved, in advance,
by the probation officer is listed in U.S.S.G. § 5D1.3(c)(5) and, thus, may be
treated as a standard condition. See Torres-Aguilar, 352 F.3d at 937-38.
      Although the condition of having sex offender treatment, that includes
submission to polygraph testing, is a condition included in the Standing Order,
the condition is not a mandatory or standard condition. The failure to register
is not categorized as a sex offense in the Guidelines. See U.S.S.G. § 5D1.2,
comment. (n.1); United States v. Segura, 747 F.3d 323, 329-30 (5th Cir. 2014).
The determination whether to impose the condition is subjective, and the
district court must show the condition is reasonably related to the factors in 18
U.S.C. § 3583(d). See Bigelow, 462 F.3d at 380. In the absence of specific notice
at the sentencing, Dyer was denied his constitutional right to be “present” to
comment on or object to the proposed special condition. Bigelow, 462 F.3d at
381; Vega, 332 F.3d at 852. Thus, the judgment must be modified to delete the
sex offender treatment condition, which included polygraph testing.
      For those same reasons, the stand-alone polygraph condition and the
search condition contained in the written judgment were in direct conflict with
the oral pronouncement and should be deleted from the judgment. Bigelow,
462 F.3d at 381. Further, the search condition in the Standing Order expressly
provides that the condition must be imposed by the judge at the time of
sentencing. Thus, it does not fall within the definition of the special condition
in the Standing Order.
      Other than condition five related to residence approval, the remaining
six special conditions in the written judgment are not listed as mandatory or
standard conditions in § 3583(d), § 5D1.3, or the district court’s standing order.
Thus, the inclusion of these conditions raises a direct conflict with the oral




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                                 No. 16-50555

pronouncement and, therefore, the judgment should be modified to delete those
special conditions. Bigelow, 462 F.3d at 381.
      Dyer’s conviction is AFFIRMED.          Except with respect to special
condition five addressing advance residential approval by the probation officer,
the judgment is VACATED insofar as the special conditions contained in the
written judgment are in conflict with the oral pronouncement, and the case is
REMANDED to the district court to conform the written judgment to the oral
pronouncement made at sentencing. See Bigelow, 462 F.3d at 384.




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