     Case: 11-30650     Document: 00511995620         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012

                                       No. 11-30650                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

JOSEPH THEO BABINEAUX, JR.,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 6:02-CR-60065-4


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Joseph Babineaux challenges the terms of his supervised release because
the district court’s written judgment imposed a condition that was not explicitly
stated orally at sentencing and because he claims the condition improperly
delegated authority to the probation officer. Because there is a conflict between
the oral and written sentences, we vacate the sentence in part and remand for
the district court to conform its written judgment to the oral sentence.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30650

                                       I
      Babineaux pleaded guilty to cocaine distribution and was sentenced to
sixty months in prison—to include substance-abuse treatment—and four years
of supervised release. While he was on supervised release, a revocation hearing
was held, and Babineaux admitted that he had violated the terms of his
supervised release in several ways, including using drugs, using a masking
agent during a drug test, and missing substance-abuse treatment sessions. The
court deferred revocation so Babineaux could enter an inpatient substance-abuse
treatment program. Less than a year later, the revocation proceedings were
reopened because of new violations, including additional drug use and missed
treatment. The hearing was postponed so Babineaux could again seek to enter
a substance-abuse treatment facility, but when one was not available, the court
resumed the revocation hearing.        At that hearing, Babineaux’s counsel
represented to the court that, after spending several months in jail, Babineaux
was now “clean” and had completed drug treatment programs. Babineaux
admitted the violations and was sentenced to twenty-four months in prison to
be followed by one year of supervised release, a sentence to which Babineaux
objected on reasonableness grounds.
      The court did not specify any terms of the supervised release during the
hearing. However, the “Minutes of Court” in the district court’s docket, dated
the same date as the hearing, indicated the supervised release had the following
conditions:
            The defendant shall refrain from any unlawful use of a
      controlled substance. The defendant shall submit to one drug test
      within 15 days of being placed on supervised release and at least
      two periodic drug tests thereafter, as directed by the U.S. Probation
      Officer as per the provisions of the 1994 Crime Control Bill and any
      additional conditions as ordered by the probation officer, which may
      include, but is not limited to attendance at community-based



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                                       No. 11-30650

      support groups, participation in individual or group treatment and
      participation in a residential drug treatment program.
The written judgment also included these conditions (listed under “Special
Conditions of Supervision”) in the same form as given in the minutes.
Babineaux appeals on the grounds that (1) the written conditions conflict with
the oral sentence and are therefore invalid, and (2) the conditions improperly
delegate the court’s authority to the probation officer.
                                              II
      Although Babineaux raises his arguments for the first time on appeal, we
review his claims for an abuse of discretion, rather than plain error, because he
did not have an opportunity to object at sentencing to the special condition that
was imposed in the written order.1 The Government contends that we should
review only for plain error because the conditions were included in the “Minutes
of Court” that were filed by the district court after sentencing but several days
before entry of judgment. The Government argues this “placed the defendant on
notice” and gave him an opportunity to object prior to judgment, but it cites no
authority to support the contention that this alters our standard of review or the
defendant’s obligation to object.
      Written minutes are of an entirely different character than an oral
pronouncement in open court with the defendant and counsel present.
Babineaux’s failure to object to the minutes in which the conditions first
appeared does not constitute forfeiture of his objection, so our review is for an
abuse of discretion.




      1
          United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).

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                                      No. 11-30650

                                            III
       A defendant has a constitutional right to be present at his sentencing, so
when the oral and written sentences conflict, the oral pronouncement controls.2
“If the differences between the two sentences create merely an ambiguity,
however, then ‘we must look to the intent of the sentencing court, as evidenced
in the record’ to determine the defendant’s sentence.”3
       The Sentencing Guidelines contain several categories of conditions for
supervised release. “Mandatory conditions” are imposed on all defendants,
“standard conditions” are recommended for all defendants, and “special
conditions” are recommended in certain circumstances.4 With respect to special
conditions, “defendants convicted of certain crimes should be subject to these
conditions as a matter of course while other defendants will only be subject to
these conditions if the district court believes they are ‘appropriate’ in a specific
case.”5 The prohibition of use of a controlled substance and the drug test
requirement included in Babineaux’s conditions are mandatory conditions,6
while substance-abuse treatment is a special condition.7
       “[E]xplicit reference to each and every standard condition of supervision
is not essential to the defendant’s right to be present at sentencing,” so an



       2
        United States v. Bigelow, 462 F.3d 378, 380-81 (5th Cir. 2006) (citing United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam)).
      3
         United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003) (per curiam)
(quoting Warden, 291 F.3d at 365).
      4
         See U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 (2010); see also 18 U.S.C.
§ 3583(d).
       5
         Torres-Aguilar, 352 F.3d at 937 (citing U.S. SENTENCING GUIDELINES MANUAL
§ 5D1.3(d)).
       6
           U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(a)(2), (4).
       7
           Id. § 5D1.3(d)(4).

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                                            No. 11-30650

omission of such a condition from the oral sentence does not create a conflict, as
the written sentence merely clarifies that the standard condition does, in fact,
apply.8 The omission of a special condition presents a more difficult question.
Generally, the failure to impose a special condition orally at the sentencing
hearing creates a conflict, and the written judgment must be amended to
comport with the oral sentence.9 Under appropriate circumstances, however,
special conditions may be “as standard as” the standard conditions.10
       In Torres-Aguilar, a special condition present only in the written judgment
barred the defendant from possessing a dangerous weapon,11 a condition the
Sentencing Guidelines recommends “if the defendant was previously convicted
of a felony.”12 It was undisputed that Torres-Aguilar had previously pleaded
guilty to a felony.13 We concluded that “the judgment’s inclusion of conditions
that are mandatory, standard, or recommended by the Sentencing Guidelines
does not create a conflict with the oral pronouncement” but instead only clarifies
it, so we upheld the condition.14
       We distinguished Torres-Aguilar in United States v. Bigelow.15 In Bigelow,
we considered the court’s failure to recite orally special conditions requiring



       8
         See Torres-Aguilar, 352 F.3d at 936 (quoting United States v. Vega, 332 F.3d 849, 853
n.8 (5th Cir. 2003) (per curiam)).
       9
           Vega, 332 F.3d at 852-53.
       10
         Torres-Aguilar, 352 F.3d at 937 (quoting United States v. Asuncion-Pimental, 290
F.3d 91, 95 (2d Cir. 2002)).
       11
            Id. at 935.
       12
            U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(d)(1) (2010).
       13
            Torres-Aguilar, 352 F.3d at 937.
       14
            Id. at 938.
       15
            462 F.3d 378 (5th Cir. 2006).

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                                        No. 11-30650

participation in a substance-abuse treatment and testing program and a mental
health program. Those conditions are recommended when the court has reason
to believe the defendant is, respectively, a substance abuser or in need of mental
health treatment.16 The record indicated Bigelow had abused drugs in the past
and had “a long history of psychological problems” but that he was not presently
using drugs or suffering from mental illness.17 We compared Torres-Aguilar’s
felony conviction, which was “undisputed and based on objective facts easily
determined from the record,” with the “much more subjective” inquiry into what
the court “ha[d] reason to believe,” and we concluded that the facts “were not so
clear as to transform these special, into standard, conditions.”18 In concluding
the conditions could not be enforced, we also cited our prior holding in United
States v. Martinez that “[t]he district court’s failure to mention mandatory drug
treatment in its oral pronouncement constitutes a conflict, not an ambiguity.”19
       In this case, as in Bigelow, whether the Sentencing Guidelines recommend
the imposition of the substance-abuse treatment condition is a more subjective
question. Another similarity to Bigelow is that Babineaux’s counsel represented
to the district court that Babineaux was “clean,” albeit after spending time in
jail, where he had also completed several drug-treatment programs. Bigelow,
however, did not appear to present the situation in which the defendant was
convicted of a drug charge and had repeatedly violated his supervised release
through drug use and related issues.




       16
            U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(d)(4)-(5).
       17
            Bigelow, 462 F.3d at 382.
       18
            Id.
      19
          Id. at 383 (emphasis omitted) (citing United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001) (per curiam)).

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                                        No. 11-30650

       While this case is not precisely the same as Bigelow, it is dissimilar to
Torres-Aguilar, in which the fact that triggered the Guidelines’ recommendation
was objectively verifiable and undisputed. Bigelow suggests that Torres-Aguilar
may be limited to circumstances such as those, and we decline to extend Torres-
Aguilar further here. As a result, we hold that the oral pronouncement in the
present case conflicts with the written judgment to the extent that the judgment
establishes additional conditions for supervised release that are not mandatory,
recommended, or standard. We therefore vacate the sentence in part and
remand to the district court so that it may conform the written judgment to its
oral pronouncement by removing the language authorizing additional conditions
as ordered by the probation officer, including substance-abuse treatment.20
                                            IV
       Babineaux also challenges the conditions as containing an improper
delegation of authority to the probation officer to determine the conditions of
supervised release, specifically regarding drug treatment. Because we hold that
the district court must remove that portion of the conditions from its judgment,
we need not address this argument.
                                    *        *         *
       For the foregoing reasons, Babineaux’s sentence of supervised release is
VACATED IN PART, and the matter is REMANDED to the district court with
instructions to conform the written judgment to the oral pronouncement at
sentencing, consistent with this opinion.




      20
        See id. at 384 (“Because the judgment[] . . . conflicts with the oral sentence, the
former must be conformed to the latter.”).

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