                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                         F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                          June 18, 2007
                         FOR THE FIFTH CIRCUIT
                         _____________________                        Charles R. Fulbruge III
                                                                              Clerk
                              No. 05-11123
                         _____________________

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee
     v.

TIMOTHY JOE EMERSON
                                                           Defendant-Appellant

                        ----------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                            (6:98-CR-103)
                        ----------------------
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge*:

     After    being   convicted,        Defendant-Appellant       Timothy        Joe

Emerson was sentenced to a term of imprisonment and a term of

supervised    release.    In     the    written    entry    of   judgment,       the

district   court    imposed   four     special    conditions     of    supervised

release on    the   defendant.         The   district   court,    however,       had

failed to pronounce these four conditions orally during Emerson’s

sentencing hearing.

     After serving his full term of imprisonment, Emerson was



     *
       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this opinion should not be published and is not precedent except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.
released and reported to the United States Probation Office,

where he was told that he had to abide by the four special

conditions.    Emerson refused, contending that he was relieved of

these obligations by the district court’s failure to impose them

orally at sentencing.

     In response, the government filed a motion for the district

court to hold a modification hearing and amend the conditions of

Emerson’s supervised release by orally adding the four special

conditions.    The district court held the modification hearing and

orally imposed the special conditions at that time, after finding

that they were warranted by Emerson’s criminal history.

     Emerson    now   appeals      this   modification   of   his   supervised

release.      Satisfied     that   the    district   court    did   not   commit

reversible error, we affirm.

                       I.    FACTS AND PROCEEDINGS

     In August 2002, a federal grand jury indicted Emerson on

three counts of possessing a firearm while under a restraining

order, in violation of 18 U.S.C. §§ 922(g)(8), 924(a)(2).                   That

October, a jury returned a guilty verdict on all three counts.

In January 2003, the district court held a sentencing hearing, at

which time it sentenced Emerson to thirty months imprisonment and

three years of supervised release.

     During the sentencing hearing, the district court stated,

                                          2
“Upon your release from incarceration, I am ordering that you

serve a 3-year term of supervised release.             You will get a copy

of   the   judgment   so   you   will    know   what   the    conditions   of

supervision are.      There are some standard conditions, as well as

special    conditions.”      The    district     court,      however,   never

identified or expressly imposed any special conditions during the

sentencing hearing.

      On the same day as the sentencing hearing, the district

court rendered its written entry of judgment.                In the written

judgment, the district court imposed the following four special

conditions:

      1.   The defendant shall participate in sex offender
      treatment services as directed by the U.S. Probation
      Officer until successfully discharged. These services
      may include pyscho-physiological testing to monitor the
      defendant’s compliance, treatment progress, and risk to
      the community.    The defendant is further ordered to
      contribute to the costs of services rendered (co-
      payment) at a rate of at least $10.00 per month.

      2.   The defendant shall not access or loiter near
      school grounds, parks, arcades, playgrounds, amusement
      parks, or other places where children under the age of
      18 may frequently congregate unless approved in advance
      by the U.S. Probation Officer.

      3.   The defendant shall neither seek nor maintain
      employment or volunteer work at any location and/or
      activity where minors under the age of 18 would
      congregate without prior permission of the U.S.
      Probation Officer.

      4.   The defendant shall not date or befriend anyone
      who has children under the age of 18, unless approved

                                     3
      in advance by the U.S. Probation Officer.

      Emerson completed his term of incarceration in April 2005

and began to serve his term of supervised release.                  The following

month, he met with U.S. Probation Officer Paul Grover.                      Emerson

and   Grover    reviewed    the    conditions       of     supervised       release

contained in the written entry of judgment, and Emerson signed an

acknowledgment of these conditions.

      Approximately two weeks later, Grover went to Emerson’s home

to discuss sex offender programs.             At this time, Grover was

informed by Emerson that, as he had not been provided notice of

the four special conditions during his sentencing hearing, he

considered that they were not applicable to him, so he would not

comply   with   them.      Three   months    later,       Emerson     refused    to

stipulate to a joint modification of his supervised release to

include the special conditions.

      In September 2005, Grover filed a petition requesting that a

summons be issued and a hearing held to modify the conditions of

Emerson’s supervised release.         Grover specifically requested that

the same four terms originally included in the written entry of

judgment   be   imposed     orally.        Grover        ventured    that     these

modifications were necessary because (1) they were part of the

original judgment, and (2) as reflected in the original Pre-

Sentence Investigation Report (“PSR”), Emerson had a prior arrest

                                       4
and   conviction       for     sexual     assault             against    a    minor.        The

government      subsequently        filed          its    own    motion      to     amend   the

conditions      of   Emerson’s      supervised            release,      echoing       Grover’s

concerns.

      Later that month, the district court held a hearing on the

motions    to   amend,       and   Emerson         was    present.           U.S.   Probation

Officers Ricky Chittum, who had prepared the PSR, and Grover, who

was   handling       Emerson’s     supervised            release,       testified      at   the

hearing.

      Chittum testified that (1) the PSR included information that

Emerson had pleaded guilty in 1987 to sexually assaulting his

eight-year old step-daughter by digitally penetrating her vagina

over 100 times, which he was sentenced to a ten-year term of

deferred    adjudication;          (2)    based          on    his   conversations          with

Emerson prior        to   learning       the       details      of   the     sexual    assault

offense, he understood that Emerson did not accept responsibility

for the offense, explaining that he was only teaching his step-

daughter to perform self-breast examinations; (3) he knows from

his professional experience with sex offenders that they have a

recidivism rate of approximately 70% and thus are likely to re-

offend; and (4) the addition of the four special conditions was

necessary in Emerson’s case to meet the objectives and goals of

supervised release.

                                               5
       On cross-examination, Chittum acknowledged that Emerson’s

trial counsel had not been provided with pre-sentencing notice

that the four special conditions were being sought, because the

special    conditions      did     not    appear        in    the   PSR,    but    only    in

Chittum’s sentencing recommendation to the district court.

       Grover   recounted        the    facts    and     circumstances         surrounding

Emerson’s post-incarceration opposition to the special conditions

and acknowledged that he was unaware whether Emerson had received

a copy of the written supervised release conditions prior to

Grover’s    visit.         He    also    testified           that   Emerson     owned     two

computers,      which      could       easily      be        used    to    access     child

pornography, and that, while Emerson was visiting his mother at

her retirement home in May 2005, he had contact with his ten-year

old daughter, in violation of his divorce decree.                          Lastly, Grover

recommended that the district court modify the terms of Emerson’s

supervised      release     to     include       the     four       special    conditions

originally included in the district court’s written entry of

judgment.

       At the conclusion of the modification hearing, the district

court    granted     the    motions       to     amend       and    modified      Emerson’s

supervised release conditions to add four special conditions that

were    substantially       identical       to     the       ones    contained      in    the

original written entry of judgment.

                                            6
     Emerson timely filed a notice of appeal.

                             II.    LAW AND ANALYSIS

A.   Standard of Review

     We     review      a    district          court’s    decision        to   impose

discretionary     terms       of    supervised        release       for    abuse    of

discretion.1       Questions        concerning      statutory       interpretation,

however, are reviewed de novo.2

B.   Merits

     1.     Presence at Sentencing

     Emerson’s initial issue on appeal is his contention that the

district     court’s    original         imposition      of   the    four      special

conditions     solely   by    way   of    a    written   judgment     violated     his

constitutional right to be present at sentencing, such that the

four conditions cannot be considered as part of his original

sentence.     We agree.

     A defendant has a constitutional right to be present at his

sentencing.3     This right stems from the Confrontation Clause of

the Sixth Amendment, but is also protected by the Due Process

Clause of the Fifth Amendment when the defendant is not actually



     1
          United States v. Ferguson, 369 F.3d 847, 852 (5th Cir.
2004).
     2
         United States v. Naranjo, 259 F.3d 379, 381 (5th Cir. 2001).
     3
         United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006).

                                           7
confronting witnesses or evidence against him.4                     It has also been

codified in Federal Rule of Criminal Procedure 43(a)(3).5                             Thus,

if   a     written     entry        of    judgment      conflicts     with       an   oral

pronouncement at a sentencing hearing, the oral pronouncement

controls and the written entry of judgment must be conformed to

the oral pronouncement.6

      If the differences between the two are merely ambiguities,

we look to the district court’s intent to determine the actual

sentence.7      We     have     previously         held,   however,       that    such    a

difference in a special condition of supervised release presents

an   actual    conflict,       not       just    an    ambiguity,    for     sentencing

purposes.8

      Here,    all    four     of    the    conditions      at    issue    are    special

conditions.          Thus,    they       present      conflicts    between    the     oral

pronouncement and the written entry of judgment.                          Accordingly,

the district court erred in imposing the four conditions in its

written     entry    of   judgment         without     having     announced      them    at


      4
          Id. at 381.
      5
          Fed. R. Crim. P. 43(a)(3).
      6
          Bigelow, 462 F.3d at 381, 383.
      7
          Id. at 381.
      8
      United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(concluding that participation in a drug treatment program was a
special condition and thus presented a conflict).

                                             8
Emerson’s      sentencing      hearing.       Therefore,    Emerson’s     original

sentence must be redacted to conform to the oral pronouncement at

his original sentencing hearing.              The four special conditions are

therefore excised from Emerson’s original sentence.

       Notwithstanding the fact that the original imposition of the

four       special   conditions    violated      his   constitutional      rights,

Emerson offers no valid reason why the district court could not

lawfully modify his sentence at a post-incarceration hearing, as

permitted under 18 U.S.C. § 3583(e).               Thus, to the extent that

any such argument might exist, Emerson has waived it.9

       2.      Modification Hearing

       Emerson’s second issue on appeal is his contention that the

district      court’s   post    hoc   order    modifying    the   terms    of   his

supervised release violated United States Sentencing Guidelines

(“U.S.S.G.”) § 5F1.5, because the four special conditions did not

have a “reasonably direct relationship” to the offense for which

he was convicted.

       Section 3583(e)(2) vests a district court, after considering

the factors set forth in § 3553(a), with broad discretion to

modify a defendant’s conditions of supervised release by adding

special      conditions   at    any   time     prior   to   the   expiration    or



       9
           United States v. Valles, 484 F.3d 745, 758 (5th Cir. 2007).

                                          9
termination of the term of supervised release.                          In doing so, the

district        court   must        afford       the     defendant         the    procedural

safeguards       specified         in     Federal      Rule     of   Criminal       Procedure

32.1(c), and the special conditions must be reasonably related to

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant, (2) the need to afford

adequate deterrence to criminal conduct, (3) the need to protect

the public from further crimes of the defendant, and (4) the need

to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the

most effective manner.10                 To the extent that the district court

does impose special conditions, they may not involve a greater

deprivation of liberty than is reasonably necessary to achieve

the need        to   deter       criminal      conduct,       protect   the      public,   and

provide    the       defendant          with   training,        care,      or    correctional

treatment.11

     One of the special conditions that a district court has at

its disposal is an “occupational restriction.”                          U.S.S.G. § 5F1.5,

however,     imposes         a    higher       standard       for    the     imposition    of

occupational         restrictions.12                 Section         5F1.5       specifically

     10
          18 U.S.C. § 3583(e)(2).
     11
          Id.
     12
          United States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992).

                                                10
provides:

      (a) The court may impose a condition of probation or
      supervised release prohibiting the defendant from
      engaging in a specified occupation, business, or
      profession, or limiting the terms on which the
      defendant may do so, only if it determines that:

             (1) a reasonably direct relationship existed
             between the defendant’s occupation, business, or
             profession and the conduct relevant to the offense
             of conviction; and

             (2) imposition of such a restriction is reasonably
             necessary to protect the public because there is
             reason to believe that, absent such restriction,
             the defendant will continue to engage in unlawful
             conduct similar to that for which the defendant
             was convicted.

      (b) If the court decides to impose a condition of
      probation   or   supervised   release    restricting a
      defendant’s engagement in a specified occupation,
      business, or profession, the court shall impose the
      condition for the minimum time and to the minimum
      extent necessary to protect the public.13

The purpose behind an occupational restriction is not to punish

the   defendant,    but    to   prevent       the   defendant’s    continued    or

repeated illegal activities while avoiding a bar to employment

that exceeds that needed to achieve the result.14

      Emerson     contends      that    the     second   and      third   special

conditions      (i.e.,    access   to     where     children    congregate     and

employment      where     children      congregate)       are      impermissible


      13
           U.S.S.G. § 5F1.5 (emphasis added).
      14
           Mills, 959 F.2d at 519.

                                        11
occupational      restrictions.         This   contention       is       based   on    the

“reasonably       direct    relationship”      language     of       §    5F1.5(a)(1).

Emerson asserts that, as his offense of conviction was possessing

a firearm while under a restraining order, these two prohibitions

are not reasonably related to his firearm conviction.                         Rather, he

insists, these occupational restrictions were sought because of

his prior sexual assault conviction and are reasonably related

only to that offense.          Thus, contends Emerson, § 5F1.5 disallows

the second and third special conditions imposed by the district

court.    We disagree.

     Emerson glosses over the fact that § 5F1.5 only applies to

prohibiting a defendant from engaging in “a specified occupation,

business,    or    profession,     or   limiting   the    terms          on   which    the

defendant may do so.”15            A “specified occupation” as used in §

5F1.5 is one that is the defendant’s primary means of supporting

himself, not any endeavor from which the defendant has merely

earned some money.16         Neither is § 5F1.5 concerned with whether a

special    condition       might   possibly    deprive    the    defendant            of   a

potential occupational opportunity in the future.                          Rather, its

     15
          U.S.S.G. § 5F1.5 (emphasis added).
     16
        United States v. Paul, 274 F.3d 155, 171 n.18 (5th Cir.
2001) (providing that if the defendant’s “primary means of
supporting himself” were involved, then he would entitled to the
higher degree of scrutiny for occupational restrictions under §
5F1.5).

                                         12
focus is on whether a defendant would be deprived of his pre-

existing primary occupation.

       These conclusions are supported by the purpose of § 5F1.5.

Conditions that would impose occupational restrictions are held

to a higher standard because Congress did not want to deprive

defendants of their livelihoods without significant justification

and thereby mete out additional punishment.17                  By the same token,

nothing suggests that Congress had any intention of imposing a

higher standard on the imposition of restrictions with merely

speculative future occupational opportunities or any activities

that        might   incidentally     involve        a     future     occupational

opportunity.        Otherwise,     Congress   would       have   unwittingly    and

inevitably      transformed   all    space    and       time   restrictions    into

occupational restrictions, necessitating the application of the

higher standard.      This cannot be what Congress intended.

       According to the PSR, Emerson is a medical doctor, but he

has not practiced since December 1998 because of poor health.

Although restricting Emerson’s access to and employment at places

where children congregate could place some tangential hardship on

his ability to practice medicine, it does not prevent him from

pursuing his present primary means of support.



       17
            Mills, 959 F.2d at 519.

                                       13
     In addition, Emerson has not shown with any specificity how

the two relevant special conditions will restrict his ability to

serve as a medical doctor.18            Emerson has offered nothing more

than raw speculation and conclusional statements to support his

claim that these special conditions will affect his livelihood.

Thus, the two relevant special conditions are not occupational

restrictions for purposes of § 5F1.5, and thus are not entitled

to a higher standard.

     As    Emerson   does     not    contend   that    the   imposition    of    the

special    conditions    violated      the     requirements     of   §   3583,   we

conclude the district court did not err in imposing the second

and third special conditions at issue.             Moreover, even if it had,

we still would not have found an abuse of discretion.

                               III.    CONCLUSION

     We acknowledge that the district court violated Emerson’s

constitutional       rights     by     imposing       special   conditions        of

supervised release in its written entry of judgment when it had

failed to pronounce them orally at sentencing.                   This error was

rendered nugatory, however, when the district court held a post-

incarceration modification hearing and orally amended Emerson’s

sentence to include the special conditions.                  Given that none of



     18
          United States v. Rearden, 349 F.3d 608, 622 (9th Cir. 2003).

                                        14
the   four   special   conditions    constituted   an   occupational

restriction, none was subject to a higher standard, rendering the

conditions subject to the standard § 3583 sentence-modification

requirements.   Based on the applicable law and our extensive

review of the parties’ briefs and the record on appeal, we are

satisfied that the district court did not abuse its discretion

under § 3583(e) in imposing the special conditions of supervised

release at the conclusion of the modification hearing convened

and conducted for that purpose.

AFFIRMED.




                                    15
