     Case: 16-50105      Document: 00513760419         Page: 1    Date Filed: 11/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 16-50105                        United States Court of Appeals
                                   Cons. w/ 16-50110                              Fifth Circuit

                                                                                FILED
                                                                        November 15, 2016
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

MARISOL FLORES,

              Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                    USDC Nos. 2:15-CR-315 & 2:15-CR-316


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Marisol Flores appeals the special condition of her
supervised release, arguing that the condition as it appears in the district
court’s written judgment conflicts with that in its oral pronouncement, and
thus must be amended to conform to the pronouncement. Because the written
judgment broadened the restrictions of the oral pronouncement by making the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50105 c/w No. 16-50110
special condition mandatory rather than conditional, we VACATE the special
condition in the written judgment and REMAND the case with instructions to
the district court to conform the written judgment to its oral pronouncement.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In February 2015, following nolo contendere pleas, Defendant–Appellant
Marisol Flores was convicted in two separate cases for (1) criminal damage to
property 1 and (2) assaulting, resisting, or impeding certain officers or
employees. 2 Flores was sentenced in federal district court in Kansas 3 to two
concurrent one-year probation terms, during which she was required to comply
with various conditions of supervision.             Later that month, the case was
transferred to federal district court in Texas because Flores had since moved
from Kansas to Texas.
       In November 2015, Flores’s probation officer filed petitions alleging that
Flores had violated several conditions of her probation and recommending that
Flores’s probation be revoked. On January 20, 2016, the district court held a
hearing on the petitions, at the conclusion of which it found that Flores had
violated her probation. Accordingly, the district court revoked her probation
and resentenced her to consecutive terms of 180 days’ imprisonment and 9
months’ imprisonment. The district court also imposed a one-year term of
supervised release following Flores’s prison terms. 4 In addition to the standard
conditions of supervised release adopted by a standing order of the U.S.




       1 See 18 U.S.C. § 13; Kan. Stat. Ann. § 21-5813. Because the damage involved less
than $1,000, this is a Class B misdemeanor.
       2 See 18. U.S.C. § 111(a)(1). Because her conviction involved simple battery, this is a

Class A misdemeanor. 18 U.S.C. § 3559(a)(6).
       3 Flores was convicted in federal court because the charged conduct took place on a

federal military base.
       4 This supervised release was exclusively in relation to Flores’s Class A misdemeanor

conviction.
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District Court for the Western District of Texas, 5 the district court also
imposed a special condition on Flores’s supervised release:
       Now, I’m showing that you don’t have a place to live when you get
       out of these sentences. If that’s the case, if we do not have an
       approved place for you to live, Ms. Flores, then the first six months
       of your term of supervision you will reside in a residential reentry
       center for a period of those six months, and you shall observe the
       rules of that facility. Further, once employed, you shall pay 20–25
       percent of your weekly gross income for your subsistence, as long
       as that amount does not exceed the daily contract rate.[6]
Flores did not object to this condition at sentencing. A few days later, the
district court issued its written judgment, which mirrored its oral
pronouncement at the hearing except in one respect. With regard to the special
condition of supervision, the district court’s written order provided: “[Flores]
shall reside in a Residential Reentry Center for a period of six (6) months and
shall observe the rules of that facility.” Flores timely appealed.
                            II. STANDARD OF REVIEW
       Normally, when an issue is raised for the first time on appeal, we review
it for plain error. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.
2006). However, when a special condition of supervised release in the written
judgment is alleged to conflict with that in the oral sentence, the defendant
“had no opportunity at sentencing to consider, comment on, or object to the
special condition[].” Id. Accordingly, we review the district court’s imposition
of that special condition for abuse of discretion. Id. A district court abuses its
discretion in imposing a special condition of supervised release if the condition



       5  See Conditions of Probation and Supervised Release (W.D. Tex. July 18, 2011),
http://www.txwp.uscourts.gov/USPO/Supervision%20Documents/Order%20-%20Conditions
%20of%20Probation%20and%20SR%202011.pdf.
        6 The U.S. Sentencing Guidelines provide that “on a case-by-case basis . . . [r]esidence

in a community treatment center, halfway house or similar facility may be imposed as a
condition of supervised release.” U.S.S.G. § 5D1.3(e)(1).
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in its written judgment conflicts with the condition as stated during its oral
pronouncement. United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per
curiam). This is because “a defendant has a constitutional right to be present
at sentencing.” Id. This right is rooted in the Confrontation Clause of the
Sixth Amendment, but is also protected by the Due Process Clause of the Fifth
Amendment when “the defendant is not actually confronting witnesses or
evidence against him.” Bigelow, 462 F.3d at 381 (quoting United States v.
Gagnon, 470 U.S. 522, 526 (1985)); see also Fed. R. Crim. P. 43(a)(3) (“[T]he
defendant must be present at . . . sentencing.”). If a special condition 7 appears
in a written judgment but was not included in the oral pronouncement at the
sentencing hearing, or conflicts with that in the oral pronouncement, the
defendant is deprived of her “constitutional right to be effectively present
because [s]he did not receive sufficient notice that th[is] . . . special condition[]
would be imposed in the written judgment.” Bigelow, 462 F.3d at 382. This
lack of notice deprives the defendant of the ability to “object or provide evidence
why those conditions were not warranted.” Id. (citing Gagnon, 470 U.S. at
526).       “Therefore, if the written judgment conflicts with the sentence
pronounced at sentencing, that pronouncement controls.” Id. (citing United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam)). In the event
of such a conflict, we vacate the conflicting condition contained in the written


        7This rule does not apply to “mandatory, standard, or recommended” conditions of
supervised release. United States v. Torres–Aguilar, 352 F.3d 934, 938 (5th Cir. 2003) (per
curiam). The presence of such conditions in the written judgment but not the oral
pronouncement does not create a conflict. Id. However, residence in a reentry center is not
a mandatory or recommended condition of supervised release. See 18 U.S.C. § 3583(d);
U.S.S.G § 5D1.3(c). Nor is it one of the standard conditions contained in the standing order
of the District Court for the Western District of Texas. See Conditions of Probation and
Supervised Release, supra, at 2–4. Rather, both the standing order and the Sentencing
Guidelines explicitly identify “Community Confinement” (i.e., residence in a reentry center)
as a special condition. Id. at 4; U.S.S.G. § 5D1.3(e)(1). Both parties agree that the condition
at issue here was not such a “mandatory, standard, or recommended” condition but rather a
special condition.
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                         No. 16-50105 c/w No. 16-50110
judgment and remand the case with instructions that the district court
conform the written judgment to the oral pronouncement. See United States
v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012); Bigelow, 462 F.3d at 384. If,
however, we determine that the discrepancy between the two is merely an
ambiguity, we examine the entire record to determine the sentencing court’s
intent in imposing the condition. See United States v. Warden, 291 F.3d 363,
365 (5th Cir. 2002).
                       III. CONFLICT OR AMBIGUITY?
      Flores argues that the discrepancy in the special condition between the
oral pronouncement and the written judgment is a conflict rather than a mere
ambiguity, and thus the written judgment should be amended to conform to
the oral pronouncement. We agree.
      In addressing discrepancies between the oral pronouncement and the
written judgment, “[t]he key determination is whether the discrepancy
between the [two] is a conflict or merely an ambiguity that can be resolved by
reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006). The crucial factor upon which we have relied in differentiating
between a conflict and an ambiguity is whether the written judgment
“broadens the restrictions or requirements of supervised release,” id., or
“impos[es] a more burdensome requirement” than that of the oral
pronouncement, Bigelow, 462 F.3d at 383. If so, we have repeatedly found a
conflict, rather than a mere ambiguity, between the oral pronouncement and
the written judgment. See United States v. Alainz–Allen, 579 F. App’x 255, 256
(5th Cir. 2014) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from dating or cohabitating with minors and from
possessing explicit photos of children while written judgment prohibited dating
or cohabitating with anyone with minor children and from possessing any
explicit materials in any medium); United States v. Tang, 718 F.3d 476, 487
                                       5
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                        No. 16-50105 c/w No. 16-50110
(5th Cir. 2013) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from cohabitating with anyone with children under the
age of 18 while written judgment prohibited both cohabitation with or dating
such an individual); Mudd, 685 F.3d at 480 (finding conflict where oral
pronouncement merely “recommended . . . treatment instead of testing” while
written judgment required defendant to submit to testing); Bigelow, 462 F.3d
at 383–84 (finding conflict where oral pronouncement required defendant to
merely notify his probation officer before obtaining any form of identification
while the written judgment required the defendant to obtain prior approval
before doing so); United States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003)
(per curiam) (finding conflict where oral pronouncement required defendant to
perform 120 hours of community service within the first year of supervised
release while written judgment required 125 hours within two years); United
States v. Ramos, 33 F. App’x 704, at *3–4 (5th Cir. 2002) (per curiam) (finding
conflict where oral pronouncement required substance abuse treatment while
written judgment required substance abuse treatment and testing).
      Similarly, the district court’s written judgment here “broadens the
restrictions or requirements of [Flores’s] supervised release,” Mireles, 471 F.3d
at 558, and “impos[es] a more burdensome requirement” on Flores than the
oral pronouncement, Bigelow, 462 F.3d at 383, by eliminating her ability to
live in approved housing of her choosing. When a right is acknowledged in the
oral pronouncement but extinguished in the written judgment, the two conflict
because the written judgment is more burdensome than the oral
pronouncement. See Mudd, 685 F.3d at 480; Bigelow, 462 F.3d at 383–84.
Here the district court’s oral pronouncement stated that Flores would be
afforded the ability to live in an approved place of her choosing upon her
release, but the written judgment extinguished this possibility. Flores had the
right to find an approved place to live under the terms of the oral
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                            No. 16-50105 c/w No. 16-50110
pronouncement but lost that right under the terms of the written judgment.
Therefore the two conflict and the oral pronouncement controls. Because we
conclude that this discrepancy is a conflict rather than a mere ambiguity, the
Government’s argument that we must examine the record to discern the
district court’s intent is inapposite. See Warden, 291 F.3d at 365.
       We disagree with the Government’s position that the special condition
as articulated in the district court’s oral pronouncement need not be
interpreted as conditional. The Government argues that the word “if” in the
district court’s oral pronouncement need not imply a conditional statement but
rather can be used to mean “given that” or “because.” The Government cites
no support for its interpretation and, furthermore, this interpretation defies
common grammatical usage.             Grammatically, “if” is widely understood to
introduce a conditional clause, which is a clause that “state[s] a condition or
action necessary for the truth or occurrence of the main statement of a
sentence.” PORTER G. PERRIN, WRITER’S GUIDE AND INDEX TO ENGLISH 500
(rev. ed. 1950); see Condition, BLACK’S LAW DICTIONARY (10th ed. 2014) (using
the word “if” to describe examples of conditions); BRYAN A. GARNER, GARNER’S
MODERN AMERICAN USAGE 436 (3d ed. 2009) (“Use if for a conditional idea . .
. .”); id. at 916 (using “if” in its example of a conditional sentence); PERRIN,
supra, at 601 (“If is a subordinating conjunction introducing a condition . . . .”).
So too should it be understood in the district court’s oral pronouncement.
                                    IV. CONCLUSION
       For the foregoing reasons, we VACATE the special condition in the
written judgment and REMAND the case with instructions to the district court
to conform the written judgment to its oral pronouncement. 8


       8  In view of the fact that Flores’s release date—December 17, 2016—is imminent, the
district court may decide, after proper notice to the parties, to determine whether Flores has
an approved place to live upon her release.
                                              7
