     Case: 12-50517   Document: 00512339216     Page: 1   Date Filed: 08/13/2013




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

                                                                   FILED
                                                                 August 13, 2013

                                No. 12-50517                     Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,
v.

ROGER WAYNE ROULAND, also known as Roger Rouland,

                                           Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Western District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Roger Wayne Rouland (“Rouland”) appeals his 30-
month, within-Guidelines sentence and several conditions of his supervised
release. For the following reasons, we AFFIRM.
                                      I.
      On January 19, 2012, Rouland pleaded guilty to possessing and
attempting to possess child pornography, in violation of 18 U.S.C. §§
2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A), after an investigation revealed
images of child pornography stored on Rouland’s computer media devices. Prior
to sentencing, a probation officer prepared a presentence investigation report
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                                       No. 12-50517

(PSR), which calculated a total offense level of 19, and a criminal history
category of I, and recommended a Sentencing Guidelines range of 30 to 37
months’ imprisonment. Rouland did not object to the PSR but subsequently
filed a 169-page sentencing memorandum with the district court, contending
that a probationary sentence was appropriate given his advance educational and
professional achievements, religious faith, familial ties, and history of back pain
and surgeries.
       At the sentencing hearing on May 16, 2012, the Government sought to
introduce Government Exhibit 1 (“the Exhibit”), which was a memorandum from
the probation officer to the Assistant United States Attorney recommending nine
special conditions to be imposed during Rouland’s supervised release. At this
point, the district court asked Rouland’s counsel whether he had any objections
to the Exhibit, to which he responded, “No objections.” The district court
admitted the Exhibit and sentenced Rouland to 30 months of imprisonment, to
be followed by a five-year term of supervised release, and imposed a fine of
$1,000 and a $100 special assessment. The court did not explain its sentence or
orally pronounced any conditions of Rouland’s supervised release.
       On May 22, 2012, the court issued a written judgment, which included
special, mandatory, and standard conditions of Rouland’s supervised release.1
Of relevance to this appeal, the district court imposed the following conditions
that were listed in the Exhibit and designated as special conditions:
             The defendant shall follow all other lifestyle restrictions or
       treatment requirements imposed by the therapist, and continue
       those restrictions as they pertain to avoiding risk situations
       throughout the course of supervision. This includes not residing or
       going to places where a minor or minors are known to frequent
       without prior approval of the probation officer.

       1
       Although the written judgment contains other special and standard conditions of
Rouland’s supervised release, the conditions discussed in this opinion are the only conditions
Rouland challenges on appeal.

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                                  No. 12-50517

            The defendant shall not associate with any child or children
      under the age of 18 except in the presence and supervision of an
      adult specifically designated in writing by the probation officer. The
      probation officer will notify the designated adult of risks occasioned
      by the defendant’s criminal record or personal history or
      characteristics. The defendant shall permit the probation officer to
      make such notifications.

           The defendant shall reside in a residence approved, in
      advance, by the probation officer. Any changes in the residence
      must be pre-approved by the probation officer.

            The defendant shall not reside within 1,000 feet of the real
      property comprising a public or private elementary, vocational, or
      secondary school or a public or private college, junior college,
      university or playground or a housing authority owned by a public
      housing authority or within 100 feet of a public or private youth
      center, public swimming pool or video arcade facility, without prior
      approval of the probation officer.

            The defendant shall refrain from purchasing, possessing, or
      using any sexually stimulating or sexually oriented materials
      including but not limited to written, audio and visual depictions,
      such as, pornographic books, magazines, photographs, films, videos,
      DVDs, computer programs, or any other media for portrayal of the
      same.

      Furthermore, the written judgment included standard conditions of
supervised release that were not contained in the Exhibit but were imposed
pursuant to a standing order of the Western District of Texas for defendants on
supervised release. These conditions are as follows:
             The defendant shall submit to an evaluation for substance
      abuse or dependency treatment as directed by the probation officer,
      and if deemed necessary by the probation officer, the defendant
      shall participate in a program approved by the probation officer for
      treatment of narcotic addiction or drug or alcohol dependency which
      may include testing and examination to determine if the defendant
      has reverted to the use of drugs or alcohol. During treatment, the
      defendant shall abstain from the use of alcohol and any and all


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                                       No. 12-50517

       intoxicants. The defendant may be required to contribute to the cost
       of the services rendered (copayment) in an amount to be determined
       by the probation officer, based upon the defendant’s ability to pay.

             The defendant shall submit to an evaluation for mental health
       counseling as directed by the probation officer, and if deemed
       necessary by the probation officer, the defendant shall participate
       in a mental health program approved by the probation officer. The
       defendant may be required to contribute to the cost of the services
       rendered (copayment) in an amount to be determined by the
       probation officer, based upon the defendant’s ability to pay.

             The defendant shall participate in a cognitive behavioral
       treatment program as directed by the probation officer, and if
       deemed necessary by the probation officer. Such program may
       include group sessions led by a counselor or participation in a
       program administered by the probation office. The defendant may
       be required to contribute to the cost of the services rendered
       (copayment) in an amount to be determined by the probation officer,
       based upon the defendant’s ability to pay.

              The defendant shall participate in workforce development
       programs and services as directed by the probation officer, and if
       deemed necessary by the probation officer, which include
       occupational/career development, including but not limited to
       assessment and testing, education, instruction, training classes,
       career guidance, job search and retention services until successfully
       discharged from the program. The defendant may be required to
       contribute to the cost of the services rendered (copayment) in an
       amount to be determined by the probation officer, based upon the
       defendant’s ability to pay.

This appeal followed.2




       2
          We granted Rouland’s motion for partial dismissal of his appeal on the issue of
whether the factual basis was sufficient to support his guilty plea. See United States v.
Rouland, No. 12-50517 (5th Cir. filed May 9, 2013) (order granting partial dismissal of appeal
as to the first issue).

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                                            II.
                                            A.
       Rouland makes three arguments on appeal. Rouland first contends that
the district court procedurally erred in imposing his sentence because it failed
to adequately respond to his request for a non-Guidelines sentence. Rouland
next claims that the special conditions of his supervised release must be deleted,
as the written judgment conflicts with the oral pronouncement.                    Finally,
Rouland contends that his imposed standard conditions of mental-health,
substance-abuse, and cognitive-behavior treatment, and participation in a
workforce development program are special conditions, which required an oral
pronouncement, and that the district court did not “ha[ve] a reason to believe”
that such conditions were warranted.3 For the reasons explained more fully
below, Rouland’s arguments are without merit.
                                            B.
       In challenging the reasonableness of his 30-month within-Guidelines
sentence, Rouland contends that the district court’s failure to respond to his
argument in support of a probationary sentence amounted to procedural error
because the court was required to explain the reasons supporting the sentence
under Gall v. United States, 552 U.S. 38, 51 (2007).
       We review the district court’s sentencing for reasonableness under a
bifurcated process. United States v. Teuschler, 689 F.3d 397,398–99 (5th Cir.
2012) (citations omitted). First, the appellate court must ensure that the district
court did not commit any “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the

       3
        Rouland only contests the participation in a workforce development program condition
on the ground that this condition was not pronounced at sentencing.

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                                   No. 12-50517

chosen sentence-including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51. If the district court’s decision is procedurally
sound, this court will then “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.
      The sentencing court “must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Id. at 50 (citation omitted). “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted).
A sentence within the Guidelines range will require “little explanation,” United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), but where a party “presents
nonfrivolous reasons for imposing a different sentence . . . the judge will
normally go further and explain why he has rejected those arguments,” Rita,
551 U.S. at 357.
      Although Rouland requested a probationary sentence, Rouland did not
lodge any objections after he was sentenced. Because Rouland failed to apprise
the district court of the alleged error he complains of on appeal, our review is for
plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009) (“A party must raise a claim of error with the district court in such a
manner so that the district court may correct itself and thus, obviate the need
for [this court’s] review.” (citation and internal quotation marks omitted)).
      To succeed on plain error review, Rouland must show (1) a forfeited error
(2) that is clear or obvious and (3) that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009) (citations omitted). If he makes that
showing, this court may exercise its discretion “to remedy the error . . . only if
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks, alteration, and citation omitted).

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        In Mondragon-Santiago, we considered whether a district court committed
procedural error by failing to adequately explain a within-Guidelines sentence
even though the defendant “raised arguments before the district court
concerning his family, his work history, and his prior convictions.” 564 F.3d at
363.     In applying plain-error review, we first noted that the district court’s
failure to adequately explain its sentence constituted error but ultimately
concluded that such error did not impair Mondragon-Sanitago’s substantial
rights, as the district court imposed a within-Guidelines sentence. Id. at 364–65
(citing United States v. Izaguirre-Losoya, 219 F.3d 437, 441–42 (5th Cir. 2000)).
Accordingly, we held that Mondragon-Santiago failed to demonstrate reversible
plain error, as he failed to show how an explanation by the district court would
have changed his sentence. Id. at 365.
        In the instant case, the district court’s failure to provide any explanation
of reasons supporting Rouland’s sentence amounts to clear error. See id. at 364.
We note, however, that this error does not constitute reversible plain error
because Rouland was sentenced to a within-Guidelines sentence of 30 months
and Rouland has failed to demonstrate how a fuller explanation would have
altered his sentence. See id. at 365. We thus reject this contention, as Rouland’s
substantial rights were not affected.
                                         C.
         Rouland next asserts that the district court abused its discretion by
imposing special conditions in the written judgment that were not pronounced
at sentencing and that these conditions must be deleted from the written
judgment, as they conflict with the oral pronouncement.
        Contrary to Rouland’s argument, the Government contends that our
review should be for plain error. The Government notes 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

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                                  No. 12-50517

opportunity to object to the later-imposed special conditions. Therefore, in
recognition of the defendant’s constitutional right to be present at sentencing,
special conditions later appearing in the written judgment must be deleted
because the oral pronouncement controls. The Government, argues, however
that the facts in this case are distinguishable because Rouland stated “[n]o
objections” to the admission of the Exhibit, which included the special conditions
he now challenges.     As a result, the Government urges us to uphold the
challenged special conditions because Rouland had notice and an opportunity to
contest these conditions at the sentencing hearing.         We agree with the
Government.
      We have consistently noted that where there is a conflict between the
written judgment and oral pronouncement, our review of special conditions is for
abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006)
(citations omitted).   Notably, as argued by the Government, the premise
supporting such review is that the defendant could not raise this issue in the
district court because the defendant “had no opportunity at sentencing to
consider, comment on, or object to the special conditions later included in the
written judgment.” Id. Importantly, “a defendant has a constitutional right to
be present at sentencing.” United States v. Vega, 332 F.3d 849, 852 (5th Cir.
2003) (citation omitted). “Th[is] constitutional right . . . is rooted to a large
extent in the Confrontation Clause of the Sixth Amendment, but . . . is [also]
protected by the Due Process Clause in some situations where the defendant is
not actually confronting witnesses or evidence against him.” Bigelow, 462 F.3d
at 381 (alterations in original) (quoting United States v. Gagnon, 470 U.S. 522,
526 (1985)). “Therefore, if the written judgment conflicts with the sentence
pronounced at sentencing, that pronouncement controls.” Id. (emphasis
removed).



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      Although there is a conflict between the oral sentence and the written
judgment in this case, we are persuaded by the Government’s argument that the
present matter is factually distinguishable from previous cases requiring us to
conform the written judgment to the oral pronouncement. The 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. The colloquy specifically proceeded as follows:
            [Government]: Your Honor, we just have Government’s
            Exhibit No. 1 which we would offer now as part of [the]
            record, the personal conditions in this case.

            The Court: I assume there are no objections?

            [Defense Counsel]: No objections.

            The Court: That would be admitted (Exhibit admitted:
            G1.)

            The Court: Do you know of any legal reason why
            sentence should not be imposed . . . ?

            [Defense Counsel]: No, Your Honor.

            The Court: The Court will impose a period of
            incarceration of 30 months to be followed by five years
            of supervised release, a fine of $1,000, and there is $100
            mandatory assessment under the Victims of Crime Act.

      Our review, therefore, is for plain error, as the rationale underpinning
abuse of discretion review is not implicated in the case sub judice. See, e.g.,
Bigelow, 462 F.3d at 381 (citations omitted). Moreover, a result inconsistent
with our conclusion would necessarily excuse Rouland’s duty to object in the
district court, and would permit him a second opportunity to raise this alleged
error that could have been presented to the district court. See United States v.



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                                     No. 12-50517

Broussard, 669 F.3d 537, 553 (5th Cir. 2012) (“[W]e review an error [not] argued
in the district court . . . for plain error.”).
      Assessing Rouland’s claim under plain error review, we conclude that his
argument is unavailing. Assuming arguendo that Rouland can demonstrate that
the district court committed an “error” that was “plain,” Rouland has failed to
make a showing under the substantial rights prong, as his counsel conceded this
point at oral argument. Because Rouland cannot demonstrate that any error
affected his substantial rights, we reject his challenge to the district court’s
imposition of the special conditions.
                                           D.
      With respect to his final argument, Rouland challenges standard
conditions of his supervised release relating to mental-health, substance-abuse,
and cognitive-behavioral treatment, and participation in a workforce
development program. As previously noted, Rouland argues, with the exception
of the workforce development program condition, that these conditions are
special under U.S.S.G. §§ 5D1.3(d)(4), (5) and only become standard if the
district court “has reason to believe” that such conditions are warranted.
Rouland further contends that these conditions were improperly imposed
because the PSR indicated he was not suffering from mental-health issues or
substance-abuse problems. The Government counters this assertion by claiming
that the district court “had a reason to believe” that such conditions were
warranted because Rouland had previously had “above range” opiate blood
levels, was a long-term user of Oxycontin and other narcotics, and was
prescribed antidepressants.
      As a preliminary matter, our review of the challenged standard conditions
is for abuse of discretion because—unlike the special conditions discussed supra
in Part II.C—Rouland did not have an opportunity to object to these conditions



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                                    No. 12-50517

at the sentencing hearing. See United States v. Warden, 291 F.3d 363, 364–65
n.1 (5th Cir. 2002).
      “[E]xplicit reference to each and every standard condition of supervision
is not essential to the defendant’s right to be present at sentencing.” United
States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (internal quotation
marks and citation omitted). Therefore, the district court’s omission of such a
condition from the oral pronouncement at sentencing does not create a conflict,
as the written judgment clarifies that the standard conditions apply to the
defendant’s supervised release term. Id. (citation omitted). However, “if the
district court fails to mention a special condition at sentencing, its subsequent
inclusion in the written judgment creates a conflict that requires amendment of
the written judgment to conform with the oral pronouncement.” Id. (quoting
Vega, 332 F.3d at 852–53). Despite this distinction, special conditions may be
tantamount to standard conditions under the appropriate circumstances,
thereby precluding the need for an oral pronouncement. Id. at 937 (citing United
States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002) (“The fact that the
condition . . . is labeled ‘special’ by the Guidelines is irrevelant.”)).
      In Torres-Aguilar, we considered whether there was a conflict between the
written judgment and the oral pronouncement regarding a condition that was
only included in the written judgment and was listed as special under U.S.S.G.
§ 5D1.3(d)(1). Id. at 935–38. The special condition at issue in Torres-Aguilar
prohibited the defendant from possessing “any other dangerous weapon” during
supervised release if the defendant was convicted of a felony. Id. at 936.
Although we acknowledged that the condition was listed as “special” under the
Guidelines, we concluded that the condition was in fact “standard.” Id. at 938.
We reasoned that it was undisputed that the defendant had pled guilty to a
felony offense, and “[i]n these circumstances, the ‘special’ condition
recommended in § 5D1.3(d)(1) is as standard as those conditions in § 5D1.3(c),

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which the Sentencing Guidelines specifically refer to as the ‘standard’ conditions
of supervised release.” Id. at 937 (citation omitted). Accordingly, we held,
              [B]ecause the Sentencing Guidelines recommend that
              all defendants who have been convicted of a felony be
              prohibited from possessing any “dangerous weapon”
              during the term of supervised release, we find that this
              condition of Torres-Aguilar’s sentence was standard
              and did not conflict with the district court’s oral
              pronouncement of sentence.
Id. at 938.
      As further support, our decision was “reinforced” by our observation in
Vega that “the Mandatory and Standard Conditions of Supervision set forth in
[the] judgment form . . . [were] formally adopted as the standard conditions of
supervised release in the Southern District of Texas.” Id. at 938 n.3 (quoting 332
F.3d at 853) (internal quotation marks omitted). It therefore was “[i]mportant[]”
that the district court “used [the] form [judgment] in the instant case, and the
prohibition against Torres-Aguilar’s possession of a ‘dangerous weapon’ is one
of the conditions appearing on the form.” Id.
      In Bigelow, we considered a similar issue as presented in Torres-Aguilar
with respect to special conditions of mental-health and substance-abuse
treatment under U.S.S.G. §§ 5D1.3(d)(4), (5). 462 F.3d at 380–83. During
sentencing, the district court failed to impose mental-health and substance-
abuse treatment conditions after Bigelow and his counsel informed the district
court that Bigelow had a prior history of abusing drugs and a “long history of
psychological problems,” but that he did not presently suffer from such problems.
Id. at 382 (internal quotation marks omitted). These conditions were later
imposed in the written judgment. Id. at 380.
      The Government in Bigelow cited Torres-Aguilar for the proposition that
“where clearly warranted, a § 5D1.3(d) ‘special condition’ is as standard as those
in § 5D1.3(c) (standard conditions of supervised release).” Id. at 381. In


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rejecting this argument and remanding the matter for deletion of these special
conditions, we distinguished Torres-Aguilar by stating,
               In Torres-Aguilar, however, the basis for imposing a
               prohibition against possessing a dangerous weapon was
               undisputed and based on objective facts easily
               determined from the record—whether defendant had
               previously been convicted of a felony. Here, the facts
               supporting imposition of the drug-treatment and
               mental-health programs are much more subjective (i.e,
               “[i]f the court has reason to believe that [Bigelow] is an
               abuser of narcotics” or “is in need of psychological or
               psychiatric treatment”). U.S.S.G. §§ 5D1.3(d)(4), (5).

Id. at 382 (internal citation omitted).
      “Thus, unlike in Torres-Aguilar, factors supporting imposition of the
special conditions for drug-treatment and mental-health programs were not so
clear as to transform these special, into standard, conditions.” Id. We further
distinguished Bigelow from Torres-Aguilar by noting that the Southern District
of Texas’s form judgment listed the condition at issue in Torres-Aguilar as either
mandatory or standard, whereas the form judgment designated mental-health
and substance-abuse treatment under the heading of “SPECIAL CONDITIONS
OF SUPERVISION” in Bigelow. Id. Finally, we noted that our prior decision
in United States v. Martinez, which held that “district court’s failure to mention
mandatory drug treatment in its oral pronouncement constitutes a conflict, not
an ambiguity” was binding. Id. at 383 (quoting Martinez, 250 F.3d 941, 942 (5th
Cir. 2001)).
      Here, there is evidence in the record supporting the district court’s
imposition of mental-health and substance-abuse treatment as conditions of
Rouland’s supervised release. Rouland received treatment at a mental-health
facility, and was also prescribed antidepressants for the treatment of depression
and anxiety. The PSR also notes that a sex-offender evaluation should be


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conducted due to Rouland’s charged offense. With respect to the substance-
abuse treatment condition, the record shows that a physician warned Rouland
that he was receiving “a lot of controlled substances from doctors” and Rouland’s
opiate blood level was “above range.”
      We conclude that this case is factually distinguishable from Bigelow.
Notably, unlike in Bigelow, the conditions imposed by the district court here are
designated as “standard” in the Western District of Texas’s judgment form. It
therefore was “important[]” that the district court “used [the] form [judgment]
in the instant case,” and that these conditions were listed under the heading of
“Standard Conditions.” See Torres-Aguilar, 352 F.3d at 938 n.3. Accordingly,
we conclude that the district court did not abuse its discretion by not orally
pronouncing the challenged standard conditions, where the subject conditions
are categorized as “standard” in the judgment form and there was record
evidence supporting these conditions.
                                        III.
      For the foregoing reasons, we AFFIRM the district court.




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