     Case: 14-50418       Document: 00513007728         Page: 1     Date Filed: 04/16/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                       No. 14-50418                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    April 16, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

ANTHONY NAVARRO SPENCER,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:13-CR-2506-1


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       After masterminding several criminal schemes involving identity theft,
forgery, and financial fraud, 1 defendant Anthony Navarro Spencer fled the
United States, using his brother’s U.S. passport—which he stole—to enter




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
       1 Spencer’s extensive criminal history includes convictions for forgery; money

laundering; identity theft; making false financial statements (multiple times); writing checks
with insufficient funds (multiple times); obtaining money/property by false pretenses; grand
theft (multiple times); theft; petty theft; theft from an elder or dependent adult; inflicting
corporal injury on his spouse; and carrying a concealed weapon.
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                                       No. 14-50418
Mexico and evade apprehension for some of his previously uncharged criminal
conduct. 2 After the dust settled, Spencer attempted to reenter the United
States using the same stolen passport, but was thwarted at the border because
his brother had reported the passport as lost or stolen. Caught, Spencer pled
guilty to improper use of another person’s passport, in violation of 18 U.S.C. §
1544.
        At the sentencing hearing, the district court noted that Spencer’s lengthy
criminal history “reflects a continuous pattern of criminal conduct that covers
more than thirty years” and is “unrelenting.” After applying the § 3553 factors,
the district court sentenced Spencer to an above-guidelines sentence: thirty
months in prison and three years of supervised release. The district court then
orally pronounced several special conditions of Spencer’s supervised release,
including prohibitions against self-employment and jobs involving the need to
handle financial matters or sensitive information. 3 The district court also
pronounced this restriction on Spencer’s ability to travel:
        As a condition of your supervised release, you are going to be
        prohibited from traveling or residing in Mexico and Canada at any
        time during the term of supervised release. For that matter, you
        are not going to be allowed to travel anywhere in the world without
        the specific permission of your probation officer.
Subsequently, the district court entered a written judgment that includes this
special condition related to travel: “The defendant shall not be allowed to
travel during the term of supervision.” Notably, the special travel condition in




        2 When he absconded, Spencer was under parole supervision; he was still under parole
supervision when he committed the crime underlying this appeal.
         3 The jobs prohibited while on supervised release were real estate agent, sales

representative, real estate broker, loan officer, financial consultant, financial advisor, bank
teller, accountant, property manager, auditor, treasurer, or any other job involving monetary
transactions.
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                                     No. 14-50418
the written judgment omits the phrase from the oral pronouncement that
allows travel with the permission of Spencer’s probation officer.
      Spencer appeals the imposition of these supervised-released conditions.

                      I. Employment-Based Conditions

      Spencer argues that the district court plainly erred in imposing
occupational restrictions as special conditions of his supervised release because
the restrictions are not reasonably related to his offense conduct and are not
imposed to the minimum extent necessary. 4
       There are several statutes and sentencing guidelines that affect our
analysis, see 18 U.S.C. §§ 3553, 3563, 3583; U.S.S.G. §§ 5D1.3, 5F1.5, but the
nub of the case is that there needs to be “a reasonably direct relationship”
between the occupational conditions and “the conduct relevant to the offense
of conviction.” U.S.S.G. § 5F1.5(a)(1); see also 18 U.S.C. § 3583(d)(1) (using the
phrase “reasonably related”); id. § 3553(a)(1), (2).            The imposition of the
conditions also needed to be “reasonably necessary to protect the public
because there is reason to believe that, absent such restriction, [Spencer] will
continue to engage in unlawful conduct similar to that for which [he] was
convicted.” U.S.S.G. § 5F1.5(a)(2); see also 18 U.S.C. § 3553(a)(2)(C).
       After stealing a passport, Spencer represented himself as the person
described on the passport and presented that passport to federal officials in an
attempt to avoid revealing his true identity. The district court’s decision to
restrict Spencer’s access to self-employment and financial services jobs that
involve sensitive information—such as personal identification documents and
private financial records—is related directly to Spencer’s offense conduct.


       4 Spencer did not object to the employment-based supervised-release conditions.
Accordingly, we review his claim for plain error. See United States v. Weatherton, 567 F.3d
149, 152 (5th Cir. 2009).
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                                       No. 14-50418
Moreover, the imposed conditions are reasonably necessary to protect the
public by denying Spencer access to sensitive documents and information while
on supervised release. Given the reasonably direct relationship between the
conduct underlying Spencer’s crime and the employment-based restrictions,
we conclude that the district court did not plainly err in imposing the special
conditions for the term of Spencer’s supervised release. 5

                              II. Travel Conditions

       The written judgment prevents all travel while on supervised release.
The oral pronouncement prevents all such travel “without the prior permission
of [Spencer’s] parole officer.” The parties agree that there is a discrepancy
between the oral pronouncement and the written judgment regarding whether
Spencer can travel with permission or cannot travel at all. 6 However, the
parties    disagree     as    to   whether      the    permission-versus-no-permission
discrepancy is a “conflict” or an “ambiguity.”                Compare United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (stating that the oral
pronouncement controls when a conflict exists between an oral pronouncement
and the written judgment), with United States v. Torres-Aguilar, 352 F.3d 934,
935 (5th Cir. 2003) (stating that the intent of the sentencing court controls
when the discrepancy between the oral pronouncement and written judgment
amounts to an ambiguity).




       5  To the extent that the supervised-release conditions are not the type of “occupational
restrictions” captured by § 5F1.5(a) of the Sentencing Guidelines, the conditions are subject
to lesser standard of scrutiny and would necessarily withstand challenge on appeal. Accord
United States v. Paul, 274 F.3d 155, 171 n.18 (5th Cir. 2001).
        6 Because a defendant has no opportunity to object to conditions of supervised release

that are included for the first time in the written judgment, we review the imposition of such
conditions for an abuse of discretion rather than plain error. United States v. Mudd, 685
F.3d 473, 480 (5th Cir. 2012).
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      In this case, however, this ambiguity-versus-conflict distinction is an
academic matter without palpable, practical implications for Spencer’s
sentence. If the discrepancy amounts to a “conflict,” the written judgment need
only be corrected so that it is consistent with the oral pronouncement. See
Martinez, 250 F.3d at 942. In such case, the written judgment would be
modified to state that Spencer is banned from travel “without the specific
permission of [his] probation officer.” And, if the discrepancy is an “ambiguity,”
the written judgment need only be modified to capture the district court’s
intent regarding the travel restriction. Torres-Aguilar, 352 F.3d at 935. Here,
the best evidence of the district court’s intent is its own statement at
sentencing that Spencer is banned from travel “without the specific permission
of [his] probation officer.” All roads lead to the same conclusion: Spencer
cannot travel without the permission of his probation officer.
      The next question is whether the Court should remand for entry of a
modified/clarified judgment or amend/clarify the judgment here. This Court
has the option to chart either course. See 28 U.S.C. § 2106 (providing that
federal appellate courts “may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it for review, and
may remand the cause and direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to be had as may be just
under the circumstances”). We choose the latter course and modify the special
travel condition in the written judgment, such that it now reads:            “The
defendant shall not be allowed to travel during the term of supervision without
the specific permission of his probation officer.”

                             III. Conclusion

      We AFFIRM the employment-based conditions. We AFFIRM the travel-
based restrictions AS MODIFIED to reflect that Spencer may travel during the
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                               No. 14-50418
term of his supervised release if he obtains the specific permission of his
probation officer.




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