     Case: 13-10242      Document: 00512460748         Page: 1    Date Filed: 12/04/2013




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

                                    No. 13-10242                                   FILED
                                  Summary Calendar                         December 4, 2013
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

RONDRICK LAMAR GRAY,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-23-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       After Rondrick Lamar Gray was convicted of possession of five grams or
more of cocaine base with intent to distribute, his conviction and sentence were
affirmed. United States v. Gray, 669 F.3d 556, 562 n.1, 567 (5th Cir. 2012).
The Supreme Court vacated and remanded pursuant to Dorsey v. United
States, 132 S. Ct. 2321, 2335 (2012) (applying Fair Sentencing Act penalties to
offenders sentenced after effective date of the Act); and, we remanded for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10242       Document: 00512460748   Page: 2   Date Filed: 12/04/2013


                                  No. 13-10242

resentencing under the Fair Sentencing Act. Gray v. United States, 133 S. Ct.
151 (2012); United States v. Gray, 501 F. App’x 329 (5th Cir. 2012). On remand,
Gray was sentenced to 41-months’ imprisonment with six years of supervised
release, including a special condition requiring his participation in a drug-
treatment program. Gray challenges the judgment of conviction and sentence
imposed on remand.
      Regarding his sentence, Gray contends the written judgment of
conviction conflicts with the oral pronouncement of sentence. He asserts the
written judgment broadens the special condition of supervised release
pronounced at sentencing that requires his participation in a drug-treatment
program because the written judgment further provides the drug-treatment
program “will include” drug testing. Gray acknowledges drug testing is also a
mandatory condition of his supervised release, but he contends the mandatory
condition imposes a limited number of drug tests and is distinguishable from
the special condition.
      Generally, when a district court’s written judgment contains a special
condition of supervised release that was not contained in the court’s oral
pronouncement of sentence, the written judgment should be reformed by
deleting the special condition that was not pronounced orally. United States v.
Vega, 332 F.3d 849, 852-53 (5th Cir. 2003). If the differences between the oral
and written judgments “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”. United States v. Torres-Aguilar, 352 F.3d
934, 935 (5th Cir. 2003) (citation and internal quotation marks omitted).
      Because Gray could not object to a special condition included only in the
written judgment, we review for abuse of discretion. Id. (citation omitted). The
record reflects that drug testing is both a mandatory and a special condition of



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                                  No. 13-10242

Gray’s supervised release. The mandatory condition requires him to “submit
to one drug test within 15 days of release from imprisonment and at least two
periodic drug tests thereafter, as directed by the probation officer”. The special
condition requires him to “participate in a program . . . for treatment of
narcotic, drug, or alcohol dependency, which will include testing for detection
of substance use or abuse”. We have previously explained that “drug testing is
a likely component of any drug treatment program”. Vega, 332 F.3d at 854.
As a result, the inclusion of the drug-testing component in the drug-treatment
special condition did not go beyond the conditions “properly and clearly applied
at [Gray’s] sentencing hearing”. Id. Thus, the drug-testing component of the
drug-treatment special condition does not broaden the restrictions or
responsibilities of Gray’s supervised release, and there is no conflict that
warrants remand. E.g., United States v. McDaniel, No. 13-10397, 2013 U.S.
App. LEXIS 22739, at *3-4 (5th Cir. 8 Nov. 2013) (citing United States v.
Mireles, 471 F.3d 551, 558 (5th Cir. 2006); Vega, 332 F.3d at 852-54).
      Regarding his conviction, this matter was remanded only for
resentencing. Nevertheless, Gray raises the same challenges presented in his
initial appeal, concerning the denial of his motion to suppress and the
admission into evidence of photographs of his holding a revolver. These two
challenges were resolved against him. See Gray, 669 F.3d at 567, vacated on
other grounds, 133 S. Ct. 151 (2012). Gray acknowledges these challenges are
barred by the law-of-the-case doctrine. See United States v. Agofsky, 516 F.3d
280, 283 (5th Cir. 2008). He raises them only to preserve them for possible,
further review.
      AFFIRMED.




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