     Case: 18-11423      Document: 00515096973         Page: 1    Date Filed: 08/29/2019




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

                                    No. 18-11423
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                   August 29, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff–Appellee,

v.

TIMOTHY BENZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-41-1


Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Timothy Benz appeals the sentence imposed following his guilty-plea
conviction for enticing a minor to engage in sexual activity, in violation of
18 U.S.C. § 2422(b). He challenges the district court’s imposition of a special
condition of supervised release requiring him to “refrain from incurring new
credit charges or opening additional lines of credit without approval of the
probation officer unless the probation officer makes a determination that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11423    Document: 00515096973      Page: 2   Date Filed: 08/29/2019


                                 No. 18-11423

defendant is in compliance with the payment schedule.” Benz contends that,
because the district court’s oral pronouncement omitted the phrase “unless the
defendant is in compliance with the payment schedule,” there is a conflict
between the oral pronouncement of sentence and the written judgment,
meaning that the oral pronouncement controls; he further argues that, by
failing to properly limit the borrowing restriction to the payment of restitution
in the oral pronouncement, the district court imposed an unjustified, wide-
ranging ban on his borrowing capacity which constitutes a greater deprivation
of liberty than is necessary to achieve the statutory goals of 18 U.S.C.
§ 3583(d).
      Because Benz had the opportunity to object to the purportedly overbroad
special condition at sentencing but failed to do so, plain-error review applies.
United States v. Rivas-Estrada, 906 F.3d 346, 348-49 (5th Cir. 2018). Under
that standard, Benz must demonstrate a forfeited legal error that was “clear
or obvious, rather than subject to reasonable dispute” and that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he does so, this court has the discretion to correct the error if it seriously
affected the integrity, fairness, or public reputation of the proceedings. Id.
      Benz’s argument that there is a conflict between the written judgment
and oral pronouncement is not well-taken. The special condition imposed is
recommended by the Guidelines when a defendant is ordered to pay restitution
pursuant to an installment schedule. U.S.S.G. § 5D1.3(d)(2). Because Benz
was ordered to pay restitution pursuant to an installment schedule, the
circumstances of his case “meet[] the specific prerequisites enumerated” by
§ 5D1.3(d)(2), meaning that the recommended special condition was essentially
a standard condition of supervised release and that there was no conflict
between the oral pronouncement of sentence and the written judgment. See



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                                       No. 18-11423

United States v. Torres-Aguilar, 352 F.3d 934, 937 (5th Cir. 2003). Thus, the
written judgment merely clarified the oral pronouncement and properly tied
the borrowing restriction to Benz’s compliance with the restitution payment
schedule. See id. Consequently, Benz fails to show any error, much less plain
error, in connection with the district court’s pronouncement of sentence or its
written judgment. 1 See Puckett, 556 U.S. at 135.
       AFFIRMED.




       1  To the extent that Benz challenges the imposition of a special condition restricting
his ability to borrow money, the claim is not ripe for review because it is entirely speculative
whether he will be subject to the borrowing restriction as the restriction will apply only if he
fails to comply with the restitution payment schedule following his release from custody. See
United States v. Magana, 837 F.3d 457, 459 (5th Cir. 2016); United States v. Carmichael, 343
F.3d 756, 761 (5th Cir. 2003).


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