     Case: 14-50004      Document: 00513190678         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50004                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 11, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellee,                                             Clerk

v.

BRIAN TODD HUDSON,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-192


Before KING, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       Brian Todd Hudson pleaded guilty to possession of child pornography,
and he now appeals his sentence. Because the district court’s written judgment
included special conditions of supervised release that the district court did not
orally pronounce at sentencing, we vacate in part Hudson’s sentence and
remand this case with instructions that the district court conform the written
judgment to its oral pronouncement.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        I.
      Without a plea agreement, Hudson pleaded guilty to possession of child
pornography.      The    revised    presentence    investigation   report   (PSR)
recommended, among other things, the imposition of numerous special
conditions of supervised release. In his written objections to the PSR, Hudson
did not object to the recommended special conditions. At Hudson’s sentencing
hearing, the district court confirmed that Hudson had reviewed the PSR with
his counsel, and the court adopted the PSR’s recommended Guidelines
calculations after counsel stated that there were no issues or inaccuracies other
than those identified in Hudson’s written objections. The district court then
imposed a sentence of 108 months of imprisonment, to be followed by a five-
year term of supervised release. The district court also imposed $5,000 in
restitution, a $1,000 fine, and a $100 mandatory assessment.
      At no time during the hearing and oral pronouncement of sentence did
the district court mention the PSR’s recommended special conditions of
supervised release, much less explain why such special conditions would be
appropriate. Indeed, the district court did not orally pronounce any conditions
of supervised release. The written judgment that the district court entered
after the sentencing hearing, however, contained a number of mandatory,
standard, and special conditions.
      Hudson timely noticed this appeal, and his counsel filed an Anders brief.
We then directed counsel to address the unpronounced special conditions.
Hudson’s counsel responded with a brief seeking vacatur of the special
conditions on the ground that the district court did not include them in its oral
pronouncement.
                                       II.
      The focal point of the parties’ dispute is the standard of review.
Normally, when a written judgment contains special conditions of supervised
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release that the district court did not orally pronounce, we review for abuse of
discretion, and the oral pronouncement controls over any conflicting special
conditions included in the written judgment. 1 See United States v. Mudd, 685
F.3d 473, 480 (5th Cir. 2012); United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006); United States v. Torres–Aguilar, 352 F.3d 934, 936 (5th Cir. 2003);
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003).                         Our oral-
pronouncement rule originates from the defendant’s constitutional right to be
present at sentencing. See Bigelow, 462 F.3d at 380–81; Torres–Aguilar, 352
F.3d at 935; Vega, 332 F.3d at 852. In the event of a conflict, we will vacate
the unpronounced special conditions and remand the case with instructions
that the district court conform the written judgment to the oral
pronouncement. See Mudd, 685 F.3d at 480; Bigelow, 462 F.3d at 384.
       The government, however, hangs its hat on a narrow exception that we
announced in United States v. Rouland, 726 F.3d 728 (5th Cir. 2013), and it
urges plain-error review.         At the sentencing in Rouland, the government
sought to introduce as an exhibit a memorandum from the probation officer to
the prosecutor that recommended nine special conditions of supervised release.
726 F.3d at 730. The government specifically referred to the exhibit as “the
personal conditions in this case.” Id. at 734. The district court asked Rouland’s
counsel whether he had any objection to the exhibit; counsel responded, “No
objections.” Id. at 730. The district court then admitted the exhibit and orally


       1 We have held that a conflict does not arise when the written judgment contains
mandatory or standard conditions that the district court failed to orally pronounce. United
States v. Torres–Aguilar, 352 F.3d 934, 938 (5th Cir. 2003). This is because “it is implicit in
the very nature of supervised release that certain conditions are necessary to effectuate its
purpose,” a district court’s explicit reference to such conditions “is not essential to the
defendant’s right to be present at sentencing,” and the written judgment’s inclusion of
mandatory or standard conditions merely “clarifies the meaning of [the] sentence.” Id. at
936, 938 (internal quotation marks and alterations omitted). A conflict occurs only when the
written judgment contains special conditions that the district court did not pronounce at
sentencing. Id. at 936.
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pronounced Rouland’s sentence. Id. This pronouncement did not include any
special conditions; however, the district court listed special conditions in the
written judgment. Id.
      Although Rouland argued that we should review the discrepancy for
abuse of discretion and vacate the written judgment’s unpronounced special
conditions, the government urged plain-error review.         Id. at 733.     The
government “note[d] that the rationale supporting abuse of discretion in cases
involving a conflict between the written judgment and an oral pronouncement
is based on the defendant’s lack of an opportunity to object to the later-imposed
special conditions.” Id. We agreed, reasoning that “[t]he sentencing colloquy
unequivocally demonstrates that Rouland’s counsel had an opportunity in open
court to object to the admission of the Exhibit, which included the special
conditions.”   Id. at 734.   Applying plain-error review, we concluded that
Rouland had failed to demonstrate that the error affected his substantial
rights, and we affirmed the district court’s written judgment. Id.
      Hudson’s case is readily distinguishable from Rouland.          While the
district court in Rouland asked whether the defendant objected to a
memorandum the exclusive function of which was to recommend special
conditions, and which the government had introduced as “the personal
conditions in this case,” and while the district court in Rouland then admitted
that memorandum as an exhibit, Hudson was never asked any targeted
questions about supervised-release conditions.      Instead, the district court
merely asked Hudson general and routine questions about the PSR, only a
small portion of which was devoted to recommending supervised-release
conditions. The entire discussion of the PSR was as follows:


           THE COURT: Mr. Hudson, you appeared before the Court
      on October the 24th of this year and entered a guilty plea and are

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     here this afternoon for sentencing. Have you had an opportunity
     to review the presentence report in your case?

           THE DEFENDANT: Yes, sir.

           THE COURT: Have you read it or had it read to you and
     discussed it with [your counsel]?

           THE DEFENDANT: Yes, sir.

           THE COURT: Did you find anything in that report that
     you’d like to call to my attention as being inaccurate or incorrect?

          [DEFENDANT’S COUNSEL]: The only things we originally
     saw have already been addressed so there’s no further issues.

           THE COURT: And no legal matters need to be ruled on . . . ?

           [DEFENDANT’S COUNSEL]: No, Your Honor.

           THE COURT: The Court will then adopt the
     recommendation of the probation office that the offense level in
     this case is 30. The criminal history is two. That results in a
     recommended range of 108 to 135 months.


Thereafter, Hudson allocuted, and the district court considered victim-impact
statements and ordered restitution to the victims. Then, the district court
pronounced Hudson’s sentence, making no mention of the special conditions
that it later included in the written judgment.     As the transcript of the
sentencing hearing demonstrates, here, unlike in Rouland, the district court
never gave the defendant a meaningful opportunity to object to the special
conditions that it would later impose; it simply asked a few perfunctory
questions about the PSR—questions that likely would be asked at any
sentencing hearing.
     The government asks us to extend Rouland to the facts of this case, but
doing so would almost entirely displace our oral-pronouncement rule, at least
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in cases where the PSR recommends special conditions and the district court
asks even a perfunctory question about whether the defendant wishes to
comment on the PSR. As we have noted, “a defendant has a constitutional
right to be present at sentencing,” Vega, 332 F.3d at 852, a right that stems
from both the Confrontation Clause and the Due Process Clause, see Bigelow,
462 F.3d at 381. “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.” Vega, 332 F.3d at 852–53.
      While the defendant in Rouland could be deemed to have been “present”
at the time that the district court imposed his special conditions because he
had a clear opportunity to object to them in open court during sentencing, the
same cannot be said of Hudson. The district court’s routine questions about
the PSR in this case did not afford Hudson a meaningful opportunity to object,
in open court, to the special conditions that the district court later imposed in
its written judgment. Because Hudson never had a meaningful opportunity to
object to the unpronounced special conditions during the sentencing hearing,
we will vacate those conditions and remand the case for the district court to
conform the written judgment to the oral pronouncement. See Mudd, 685 F.3d
at 480; Bigelow, 462 F.3d at 384.
                                      III.
      In light of the foregoing discussion, we VACATE IN PART Hudson’s
sentence and REMAND this case to the district court with instructions to
conform the written judgment to the oral pronouncement of sentence,
consistent with this opinion.




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