     Case: 19-20252      Document: 00515368445        Page: 1     Date Filed: 04/01/2020




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

                                                                               FILED
                                   No. 19-20252                             April 1, 2020
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

DARRELL WOODS,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 4:17-CR-457-2




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

      Darrell Woods pleaded guilty of aiding and abetting interference with



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 19-20252

commerce by robbery and aiding and abetting the use, carrying, and brandish-
ing of a firearm during and in relation to a crime of violence. Woods was sen-
tenced to 221 months of imprisonment, three years of supervised release
(“SR”), and $37,511.65 in restitution.

      Woods maintains that there is a conflict between the oral pronouncement
of sentence and the written judgment with respect to the restitution order and
a special condition of SR. He asserts that, although the district court orally
pronounced that he was required to participate in drug and alcohol treatment,
the written judgment added the requirement that he was required to pay the
costs of such treatment. He also posits that the written judgment failed to
include the oral pronouncement that he was jointly and severally liable for the
restitution with his codefendants. The government does not seek to enforce
the appeal waiver. See United States v. Story, 439 F.3d 226, 231 (5th Cir.
2006).

      Because a defendant has no opportunity to object to conditions of SR that
are included for the first time in the written judgment, this court reviews the
imposition of those conditions for an abuse of discretion instead of plain error.
United States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012). “[A] defendant has
a constitutional right to be present at sentencing.” United States v. Bigelow,
462 F.3d 378, 380 (5th Cir. 2006) (internal quotation marks and citation omit-
ted); FED. R. CRIM. P. 43(a)(3). “Where there is a conflict between the oral
pronouncement and the written judgment, the oral pronouncement controls.”
United States v. English, 400 F.3d 273, 276 (5th Cir. 2005).

      Because the record reflects that the district court intended for Woods to
attend substance abuse treatment, the requirement that he bear the costs of
such treatment does not create a conflict requiring modification of the sen-
tence. See United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003). But there


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                                 No. 19-20252

is a conflict with respect to the written judgment’s omission of the liability
clause. See United States v. Pacheco-Albarado, 782 F.3d 213, 222−23 (5th Cir.
2015). Therefore, the case is remanded for correction. See id.

      For the first time on appeal, Woods contends that the district court com-
mitted reversible error in applying U.S.S.G. §§ 4A1.1(a) and 4A1.2(k) to his
Texas conviction of burglary of a habitation, which resulted in the imposition
of three criminal history points. As Woods concedes, review is limited to plain
error. See United States v. Carlile, 884 F.3d 554, 556 (5th Cir. 2018). To pre-
vail on plain error review, Woods must show, inter alia, a forfeited error that
is clear or obvious. See Puckett v. United States, 556 U.S. 129, 135 (2009).

      As relevant to this claim, Woods was sentenced to deferred adjudication
probation in Texas for a burglary-of-a-habitation conviction. He was not sen-
tenced to an original term of imprisonment; instead he received a four-year
sentence only following the court’s revocation of his deferred-adjudication
probation. He claims, therefore, that the court plainly erred by calculating his
criminal history under § 4A1.2(k) because a plain reading of “4A1.2(k) ex-
pressly contemplates an ‘original term of imprisonment’” that is not present in
a case involving a deferred adjudication such as his case.

      At best, Woods’s claim is “subject to reasonable dispute” and, therefore,
cannot constitute clear or obvious error. Puckett, 556 U.S. at 135. Accordingly,
the judgment is AFFIRMED. The case is REMANDED for the limited purpose
of conforming the written judgment to the oral pronouncement.




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