     Case: 15-41390      Document: 00513740528         Page: 1    Date Filed: 10/31/2016




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

                                      No. 15-41390
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        October 31, 2016

UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellee

v.

ANSELMO VENEGAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-694-1


Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Anselmo Venegas (“Venegas”) appeals the district court’s written order
of a drug testing special condition as part of his term of supervised release. For
the reasons explained below, we AFFIRM the special condition imposed by the
district court.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-41390
                                        I
      Venegas pleaded guilty to one count of possession of child pornography
that had been shipped and transported in interstate or foreign commerce, in
violation of 18 U.S.C. § 2252(a)(4)(B), (b). The district court sentenced Venegas
to 100 months imprisonment, followed by 20 years of supervised release. The
district court explained the conditions of supervised release at the sentencing
hearing. Although the district court stated that Venegas did not have a
“narcotics issue,” it instructed Venegas “to avoid all illegal narcotics.” Venegas
did not object to his sentence.
      The district court filled out a Form AO 245B written judgment. The
written judgment included a standard condition of supervised release that
“[t]he defendant shall submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined
by the court.” The district court also ordered as a special condition of
supervision that:
      The defendant shall submit to periodic urine surveillance and/or
      breath, saliva, and skin tests for the detection of drug abuse as
      directed by the probation officer. The defendant will incur costs
      associated with such detection efforts based on ability to pay as
      determined by the probation officer.
Venegas filed a timely notice of appeal. He challenges only the imposition of
the drug testing special condition.
                                        II
      Because Venegas did not have the opportunity at sentencing to object to
the special condition included in the written judgment, we review the
imposition of the special condition for an abuse of discretion. United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).




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                                 No. 15-41390
                                      III
      “A defendant has a constitutional right to be present at sentencing.”
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). If the written
judgment conflicts with the oral pronouncement at sentencing, “the oral
pronouncement controls.” United States v. English, 400 F.3d 273, 276 (5th Cir.
2005). A conflict exists “[i]f the written judgment broadens the restrictions or
requirements of supervised release from an oral pronouncement.” United
States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006). But this court must review
the entire record “to determine the intent of the [district] court” if there is
merely an ambiguity between the written judgment and the oral
pronouncement. United States v. Moreci, 283 F.3d 293, 299 (5th Cir. 2002); see
also Scott v. United States, 434 F.2d 11, 20 (5th Cir. 1970) (“The actual
intention of the sentencing judge is to be ascertained both by what he said from
the bench and by the terms of the order he signed, or from his total acts.”).
Standard conditions of supervised release included in the written judgment do
not create a conflict with the district court’s oral pronouncement of supervised
release at sentencing. See United States v. Torres-Aguilar, 352 F.3d 934, 938
(5th Cir. 2003).
      Venegas does not appeal his sentence, term of supervised release, or the
standard condition ordering that he “submit to one drug test within 15 days of
release from imprisonment and at least two periodic drug tests thereafter, as
determined by the court.” This court must determine whether the drug testing
special condition “broadens the restrictions or requirements of supervised
release” compared to the oral pronouncement at sentencing and the drug
testing standard condition included in the written judgment. See Mireles, 471
F.3d at 558. Venegas argues that the drug testing special condition is broader
than the drug testing standard condition because the drug testing special


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                                 No. 15-41390
condition requires: (1) “ongoing” drug testing “of unlimited duration” and (2)
“payment of fees.”
      The drug testing special condition requires that Venegas submit to
“periodic” drug testing. The drug testing standard condition requires that
Venegas submit to “one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter.” Both conditions of supervised
release require “periodic” drug testing. Because it is ambiguous whether the
special condition requires more drug testing than that required by the
standard condition, we review the entire record to determine the district
court’s intent. The district court stated that Venegas did not have a specific
“narcotics issue.” We hold that the district court intended that the “periodic”
drug testing required by the special condition be confined to the “periodic” drug
testing required by the standard condition.
      The drug testing special condition requires that Venegas “incur costs” for
the drug testing “based on ability to pay as determined by the probation
officer.” Venegas argues that the “payment of fees” requirement in the drug
testing special condition is broader than the drug testing standard condition,
which does not mention costs. But the requirement that the defendant bear the
costs of a condition of supervised release, “even if mentioned for the first time
in the written judgment,” does not create a conflict with the oral
pronouncement at sentencing. United States v. Vega, 332 F.3d 849, 852 (5th
Cir. 2003); see also United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002).
The imposition of costs “creates, if anything, an ambiguity.” Vega, 332 F.3d at
852; Warden, 291 F.3d at 365. We resolve this ambiguity by reviewing the
record to determine the district court’s intent. The district court instructed
Venegas at sentencing “to avoid all illegal narcotics.” The district court also
imposed the drug testing standard condition, which Venegas does not appeal.
We hold that the district court intended that Venegas be subject to periodic
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                                 No. 15-41390
drug testing. The requirement that Venegas incur costs for his drug testing is
“consistent with the district court’s intent in imposing the conditions of
supervised release.” Warden, 291 F.3d at 365. No modification of the drug
testing special condition is warranted.
                                      IV
      We AFFIRM.




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