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

                                                 FILED
                                                                            June 29, 2009

                                       No. 08-50624                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

AARON SCOTT ELKINS

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                    for the Western District of Texas, Midland
                             USDC No. 4:07-cr-00197


Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Aaron Scott Elkins pleaded guilty to one count of receipt and
possession of child pornography and one count of possession of child
pornography. The district court sentenced him to 135 months of imprisonment
on the former count and 120 months on the latter count, to run concurrently.
The district court also imposed two concurrent ten-year terms of supervised
release.    Appellant challenges two special conditions of supervised release
imposed by the district court. Finding that one of the challenged conditions in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-50624

the judgment conflicts with the district court’s oral pronouncement, we STRIKE
that condition and AFFIRM as MODIFIED.
       At the sentencing hearing, the district court announced several special
conditions of Elkins’s supervised release. These special conditions were later set
forth in the written judgment. Additionally, the written judgment provided that
Elkins “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.” Elkins contends that the district court erred in imposing
this   additional condition    because   it   conflicted    with   the   court’s   oral
pronouncement of sentence. This claim is reviewed for abuse of discretion
because the defendant did not have the opportunity to object at sentencing.
United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). This Court has
long recognized that “a defendant has a constitutional right to be present at
sentencing.” United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).
If a conflict exists between a written sentence and an oral pronouncement, the
oral statement controls. Id. Further, if the difference between the written
judgment and the oral pronouncement simply constitutes an ambiguity, this
Court “must look to the intent of the sentencing court, as evidenced in the record
to determine the defendant’s sentence.” Id. (internal quotation marks and
citation omitted).
       More to the point, we have held that “[i]f the district court orally imposes
a sentence of supervised release without stating the conditions applicable to this
period of supervision, 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.”        Id. at 938.   Thus, if a condition is
mandatory, standard, or recommended by the applicable guideline, “the written
judgment simply clarifie[s] the meaning of that sentence by specifying what the



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supervision [is meant] to entail.” Id. (alternation in original) (internal quotation
marks and citation omitted).
      In the instant case, the government does not contend that the challenged
condition which prohibits Elkins from associating “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” is mandatory,
standard or recommended by the applicable guideline.             Nonetheless, the
government contends that the challenged condition is not a conflict but an
ambiguity. More specifically, the government argues that it is clear that the
district court intended to restrict Elkins’s contact with minors. Although it is
true that the district court verbally imposed other restrictions with respect to
contact with minors, this condition is more “burdensome” in that it requires an
adult, who has been previously approved by the probation officer, to supervise
Elkins any time he associates with a minor. See United States v. Bigelow, 462
F.3d 378, 383 (5th Cir. 2006) (explaining that “the written judgment conflicts
with the oral pronouncement by imposing a more burdensome requirement of
prior approval, rather than merely notifying the probation officer when applying
for, or having obtained, a new identification document”).
      Relying on United States v. Mireles, 471 F.3d 551 (5th Cir. 2006), the
government asserts that this Court found no conflict between the written
judgment and the oral pronouncement even though the written judgment did not
contain language used in the oral pronouncement. In Mireles, the sentencing
court orally imposed a condition that required the defendant, a truck driver, to
announce to any police officer who stopped his vehicle while he was engaged in
commercial activities that he was on supervised release for drug trafficking so
that the officer could search the vehicle and his person. Id. at 558. However, the
written judgment did not specifically contain the words “engaged in commercial
activities.” Id. Nonetheless, after reviewing the record, this Court determined

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                                      No. 08-50624

that the phrase “truck driving” in the written judgment applied only to
commercial activity. Thus, it found no conflict. Id. at 558–59. In the instant
case, it is clear that the challenged condition cannot be encompassed within any
of the other orally pronounced conditions. Mireles thus offers the government
no succor.
       Here, the challenged condition in the written judgment is more
burdensome than the oral pronouncements in that it requires a pre-approved
adult to supervise Elkins any time he associates with a person less than 18 years
of age. Because the condition in the written judgment is more burdensome than
those imposed at the sentencing hearing, the written judgment conflicts with the
oral pronouncements. Bigelow, 462 F.3d at 383. The district court abused its
discretion in imposing the more burdensome condition. We therefore strike this
condition from the judgment.1
       Finally, in his brief, Elkins argued that the district court plainly erred by
imposing a special condition of supervised release that prohibited his use of a
computer without the prior approval of his probation officer. More specifically,
he contended that the condition involves a greater deprivation of liberty than is
reasonably necessary to achieve statutory goals. Subsequent to the filing of the
briefs in this case, this Court rejected this argument. United States v. Brigham,
--- F.3d ----, No. 08-10315, 2009 WL 1395839, at *10–12 (5th Cir. May 20, 2009).
At oral argument, counsel admitted that Brigham precluded relief on this
contention.




       1
         We note that there are other unchallenged conditions of supervised release providing
that Elkins shall abide by the rules of a mental health and/or sex offender treatment program
and also follow any restrictions or treatment requirements imposed by his therapist. The
excision of the challenged provision does not affect the validity of any of the remaining
conditions of supervised release. Indeed, the remaining conditions may very well support
restrictions on his associations similar to the stricken condition if determined to be
appropriate for his treatment by his therapist.

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                                  No. 08-50624

      For the above reasons, we MODIFY Elkins’s sentence by striking the
following condition of supervised release:
      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 district court’s judgment is AFFIRMED as MODIFIED.




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