Case: 18-40096        Document: 00515509782             Page: 1      Date Filed: 07/30/2020




             United States Court of Appeals
                  for the Fifth Circuit
                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit

                                                                                        FILED
                                                                                    July 30, 2020
                                    No. 18-40096                                   Lyle W. Cayce
                                  Summary Calendar                                      Clerk



 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Terence Millsaps,

                                                               Defendant—Appellant.



                  Appeal from the United States District Court
                       for the Eastern District of Texas
                            USDC No. 1:17-CR-35-1


 Before JOLLY, ELROD, and GRAVES, Circuit Judges.
 Per Curiam:*
         Terence Millsaps appeals the sentence imposed following his guilty-
 plea conviction for assaulting a federal officer.              Specifically, Millsaps
 contends that there is an impermissible conflict between the district court’s



         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 18-40096      Document: 00515509782         Page: 2     Date Filed: 07/30/2020




                                  No. 18-40096


 oral pronouncement of sentence and the written judgment imposing two
 special conditions of supervised release.
        Because a defendant “has a constitutional right to be present at
 sentencing,” an orally pronounced sentence controls in the case of a conflict
 with the written sentence. United States v. Martinez, 250 F.3d 941, 942 (5th
 Cir. 2001). Such a conflict may arise where “a sentencing court omits certain
 [supervised release] conditions from its oral pronouncement but includes
 them in its written judgment.” United States v. Vasquez-Puente, 922 F.3d
 700, 703 (5th Cir. 2019). On the other hand, if there is merely an ambiguity
 between the oral and written versions of a condition, “the entire record must
 be examined to determine the district court’s true intent.” Martinez, 250
 F.3d at 942.
        Since the district court expressly adopted at sentencing, and thereby
 orally pronounced, the special conditions listed in the presentence report
 (PSR), Millsaps had an opportunity to object to those conditions. See United
 States v. Diggles, 957 F.3d 551, 559-62 (5th Cir. 2020) (en banc). Because he
 failed to do so, the plain error standard of review applies. See id.; see also
 Puckett v. United States, 556 U.S. 129, 135 (2009) (holding that the plain error
 standard requires the defendant to show a clear or obvious error that affected
 his substantial rights).
        Given that the special conditions listed in the PSR and adopted by the
 district court at sentencing are identical to those in the written judgment,
 there is no apparent conflict between the oral and written sentences. See
 Vasquez-Puente, 922 F.3d at 703. Even if it is assumed arguendo that the
 district court created ambiguity by describing the two adopted special
 conditions in abbreviated terms, the record does not indicate that the district
 court intended thereby to alter the terms of those special conditions. See
 Martinez, 250 F.3d at 942. The district court did not, therefore, create a clear




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Case: 18-40096     Document: 00515509782        Page: 3     Date Filed: 07/30/2020




                                 No. 18-40096


 or obvious conflict between the oral and written supervised release
 conditions. See Puckett, 556 U.S. at 135; Vasquez-Puente, 922 F.3d at 703.
 Because Millsaps has failed to demonstrate plain error, see Puckett, 556 U.S.
 at 135, the judgment of the district court is AFFIRMED.




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