     Case: 16-41213      Document: 00513980060         Page: 1    Date Filed: 05/04/2017




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

                                    No. 16-41213                               FILED
                                  Summary Calendar                          May 4, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BAJUNE MOSEBY, also known as Junebug,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:11-CR-127-13


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Bajune Moseby appeals the imposition of special conditions of supervised
release included in the amended judgment on remand on his jury trial
conviction for conspiracy to possess with intent to distribute marijuana. See
21 U.S.C. §§ 841(a)(1), 846; see also United States v. Romans, 823 F.3d 299,
317-19 (5th Cir.), cert. denied, 137 S. Ct. 395 (2016). Finding no plain error,
we affirm. See Puckett v. United States, 556 U.S. 129, 135-36 (2009); United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41213

States v. Rouland, 726 F.3d 728, 734 (5th Cir. 2013).        We pretermit the
question whether the mandate rule bars Moseby’s claim. See United States v.
Teel, 691 F.3d 578, 583 (5th Cir. 2012); United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
      “[A] defendant has a constitutional right to be present at sentencing.”
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003). Consequently, if the
oral pronouncement and the written judgment are in conflict, the oral
pronouncement controls. United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001).   No conflict arises if the written judgment includes mandatory or
standard conditions not orally pronounced. United States v. Torres-Aguilar,
352 F.3d 934, 938 (5th Cir. 2003).
      Ordinarily, if the defendant challenges a written judgment as containing
a special condition not spoken at sentencing, we review the inclusion of the
special condition for abuse of discretion. United States v. Bigelow, 462 F.3d
378, 381 (5th Cir. 2006). Review is for plain error, however, whenever “the
defendant has the opportunity to seek vindication of [his] rights in district
court” but fails to avail himself of it. Puckett v. United States, 556 U.S. 129,
136 (2009).
      On remand, the probation office revised Moseby’s presentence report and
issued a fourth addendum to it that recommended imposing specified
mandatory and special conditions in addition to standard conditions. The
defense was advised of the special conditions before sentencing, and at
sentencing defense counsel represented that Moseby had no comments,
additions, or corrections to make regarding the revised presentence report.
When pronouncing sentence, the district court re-directed Moseby’s attention
to those special conditions by ordering him to comply with them.
Consequently, the claim Moseby advances in this appeal “could have been



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                                 No. 16-41213

presented to the district court.” Rouland, 726 F.3d at 734; see Puckett, 556 U.S.
at 136.
      The plain error standard requires that, in addition to showing that a
forfeited error was clear or obvious, i.e., not “subject to reasonable dispute,”
Moseby demonstrate that the error affects his substantial rights. Puckett,
556 U.S. at 135. Even if we assume that a clear or obvious error exists, Moseby
fails plain error review because he is unable to demonstrate that his
substantial rights were affected, given that his counsel conceded at sentencing
that Moseby did not object to the revised presentence report containing the
special conditions. See id.; Rouland, 726 F.3d at 734.
      Moseby’s motion for leave to file a supplemental brief pro se is DENIED.
See United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999).
Moseby’s motion for extension of time to file a supplemental brief pro is
DENIED as well.
      AFFIRMED.




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