                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         December 28, 2006
                                    TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                            Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff - Appellee,

 v.                                                        No. 05-4157
                                                             (D. Utah)
 DONALD EUGENE CHALUPA also                        (D.Ct. No. 2:03-CR-706-PGC)
 known as Donald W illiam C haupa,
 also know n as “H oss” Chalupa, also
 known as Donald E.W . Chalupa,

           Defendant - Appellant.



                               OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
      On M ay 13, 2005, Donald Chalupa was charged with violating his

supervised release based on (1) his arrest for driving under the influence of

alcohol (DUI) and driving with an expired registration, (2) his consumption of

alcohol, and (3) his failure to submit to drug testing. After Chalupa admitted to

all three allegations, the district court revoked his supervised release and

sentenced him to eight months imprisonment followed by twenty-eight months of

supervised release. On appeal, Chalupa claims the district court improperly

considered his unadjudicated DUI arrest as a basis for revoking his supervised

release and imposing sentence. He also contends the district court’s written order

erroneously added a condition on his sentence that was not included in the oral

pronouncement of sentence. Exercising jurisdiction pursuant to 18 U.S.C. § 3742

and 28 U.S.C. § 1291, we AFFIRM .

Background

      After serving a thirty-five month sentence of imprisonment for possession

of a firearm by a convicted felon, Chalupa w as placed on supervised release for a

period of thirty-six months. In June, 2004, Chalupa was charged with violations

of the terms of his supervised release, including absconding from supervision and

failure to submit to drug and alcohol testing. The district court did not re-

imprison Chalupa, but reinstated the remaining balance of his supervised release

with the special condition that he “participate . . . in a program of substance abuse

treatment which may include testing for substance abuse and contribute to the

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cost of treatment in an amount to be determined by the [United States Probation

Office].” (R. Supp. Vol. I, Doc. 14 at 2.) The court also ordered Chalupa to

“abstain from all use of alcohol or alcoholic beverages.” (Id.)

      Less than one year later, Chalupa was again charged with violating the

terms of his supervised release. The allegations included his arrest by the Utah

Highway Patrol for DUI and expired registration, his admission to law

enforcement officers that he had consumed alcohol, and his failure to submit to

scheduled drug testing on three different occasions. The presentence report

further indicated “the defendant failed to notify the United States Probation

Office of [the DUI] arrest immediately following his release from jail . . . .” (R.

Vol. III at 2.) At sentencing, Chalupa admitted to all three allegations but

insisted there were legitimate reasons for his failure to report for the drug

testings. He also asserted he had sent the DUI paperwork to his probation officer

the day after his arrest.

      The presentence report determined each allegation constituted a Grade C

violation. W ith a criminal history category of III, the report calculated the

guideline range as five to eleven months imprisonment. Chalupa requested that

the court sentence him to eleven months imprisonment and terminate any

supervised release. The district court denied his request, finding “the best way

[for Chalupa] to move on with [his] life is to comply with the conditions [of

supervised release].” (Vol. II at 8.) The district court then sentenced Chalupa to

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eight months imprisonment followed by twenty-eight months supervised release.

In addition to the standard conditions of supervised release, the district court

orally ordered Chalupa to “submit to drug and/or alcohol testing” and “participate

in drug and/or alcohol abuse treatment as directed by the probation office.” (Id.

at 9.) However, in the written order, the district court stated “[t]he defendant will

submit to drug/alcohol testing, as directed by the probation office, and pay a one-

time $115 fee to partially defer the costs of collection and testing[.]” (Vol. I,

Doc. 23 at 2.) Chalupa appeals from this sentence.

Discussion

      Chalupa raises two issues on appeal. First, he contends the district court

erred in considering his DUI arrest as a basis for revoking his supervised release

and at sentencing. Second, he maintains the requirement that he pay $115.00 to

offset the costs of drug testing was not part of the district court’s oral

pronouncement and therefore should be stricken from the written sentencing

order. W e address each argument in turn.

      1.     Consideration of Arrest as a Supervised Release Violation

      Chalupa did not object to the court’s consideration of his arrest at the

revocation hearing. Therefore, we review for plain error. United States v.

M itchell, 429 F.3d 952, 961 (10th Cir. 2005). “U nder the plain error test, there

must be (1) an error (2) that is plain and (3) that affects substantial rights. Even

if all three elements are present, we may exercise discretion to notice the forfeited

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error only if the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Crockett, 435 F.3d 1305, 1312 (10th

Cir. 2006) (citations omitted).

      On appeal, Chalupa posits that the fact he was arrested did not violate any

condition of his supervised release. In addition, the mere fact of an arrest is

generally not considered probative as to whether the underlying act occurred.

United States v. Robinson, 978 F.2d 1554, 1559 (10th Cir. 1992); see also

M ichelson v. United States, 335 U.S. 469, 482 (1948) (“Arrest without more does

not, in law any more than in reason, impeach the integrity or impair the

credibility of a witness. It happens to the innocent as well as the guilty.”); United

States v. Pino, 827 F.2d 1429, 1431 (10th Cir. 1987) (same). W hile Chalupa

concedes he violated other conditions of his supervised release, he contends the

error in considering his DUI arrest as a violation is plain error because it was “so

serious in comparison to the other violations” that “it is almost a certainty [it] had

an effect on [his] sentence.” (A ppellant’s Op. Br. at 5.) Therefore, he argues w e

must remand his case for resentencing. See United States v. Curtis, 237 F.3d 598,

604 (6th Cir. 2001) (when charges of supervised release violations may have been

improperly reinstated, remand w as required when it was not clear what role the

reinstated charges played in the sentence).

      The government admits Chalupa’s arrest, by itself, was not a violation of

his supervised release conditions but maintains it is unclear whether the district

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court determined Chalupa violated his supervised release based on his arrest or a

violation based on his failure to report it. See USSG §5D1.3(c)(11). A careful

review of the record, however, reveals that a failure to report the arrest was never

included in the allegations providing the basis for revocation. In addition, the

written order of the court observes that Chalupa admitted to each allegation.

Because the district court apparently found Chalupa guilty of all three allegations

and the first allegation was not a violation of his supervised release, we find the

court erred and the error was plain.

      “Satisfying the third prong of plain-error review - that the error affects

substantial rights - usually means that the error must have affected the outcome of

the district court proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727,

732 (10th Cir.) (quotations omitted) (en banc), cert. denied, 126 S.Ct. 795 (2005).

W e need not determine whether Chalupa can satisfy this burden by merely

claiming that the removal of the allegation might have changed his sentence

“because even if he were to meet the third prong, he must also satisfy the fourth

prong to obtain relief.” Id. at 736. Chalupa fails to do so.

      “Under the fourth prong of plain-error review , a court may exercise its

discretion to notice a forfeited error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. W e will notice a

non-constitutional error only when the defendant demonstrates the error is

“particularly egregious” and a failure to correct it would result in “a miscarriage

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of justice.” Id. (quotations omitted). In his brief on appeal, Chalupa makes no

effort to argue either prong of this dual standard. M oreover, the uncontradicted

facts establish the admitted allegations were Grade C violations. Under USSG

§7B1.4, one G rade C violation (coupled w ith Chalupa’s criminal history category

of III), by itself, would result in the same recommended term of imprisonment —

five to eleven months. Because Chalupa admitted to two legitimate Grade C

violations, his sentence is well “within th[e] national norm.” Id. at 738. Since

“there is no record evidence to support a lower sentence,” we conclude Chalupa

has not shown his “sentence is particularly egregious or a miscarriage of justice.”

Id. at 738-39. Accordingly, we decline to remand this case for resentencing.

      2. Discrepancies Between the Oral and W ritten Judgment

      Chalupa contends the requirement to pay $115.00 to defray the costs of

drug/alcohol testing contained in the district court’s w ritten order conflicts w ith

the district court’s silence on this condition at his sentencing hearing. Generally,

we review the conditions of supervised release for an abuse of discretion, even

absent an objection at the hearing, when the defendant was not provided an

adequate opportunity to object. United States v. Bartsma, 198 F.3d 1191, 1197-

98 (10th Cir. 1999). In this case, however, the district court’s discretionary

authority is preceded by a question of law. “It is a firmly established and settled

principle of federal criminal law that an orally pronounced sentence controls over

a judgment and commitment order when the two conflict.” United States v.

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Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc). It is only when “an

orally pronounced sentence is ambiguous [that] the judgment and commitment

order is evidence which may be used to determine the intended sentence.” Id. at

1451. Thus, our initial inquiry is whether a the oral judgment is ambiguous or

w hether it conflicts w ith the w ritten judgment, a legal question on which we

undertake plenary review. See United States v. Wolfe, 435 F.3d 1289, 1297 (10th

Cir. 2006) (discussing plenary review and review for abuse of discretion as

applied to separate issues.)

      The government points to cases from other circuits that expressly hold the

failure to include the payment of the costs of drug testing and treatment in the

oral pronouncement does not conflict with the written order’s requirement to do

so. See United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); United States v.

Warden, 291 F.3d 363, 365 (5th Cir. 2002); United States v. Bull, 214 F.3d 1275,

1279 (11th Cir. 2000). The reasoning of these courts is that the obligation to pay

for substance testing and treatment is consistent with the court’s order to

participate in such testing and treatment. Bull, 214 F.3d at 1279. In the

alternative, these courts have concluded that the omission of the payment for

treatment or testing in the oral pronouncement as compared to the written order

creates an ambiguity, allowing consideration of the written judgment to “ascertain

the court’s intention.” Id. (quotations omitted).

      Our case law suggests a different approach. In Villano, the defendant and

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two co-defendants were sentenced on three counts by the same federal judge on

the same day. W hen sentencing Villano’s co-defendants, the court ordered the

sentences on each count to run consecutively. W hen sentencing Villano,

however, the district court mistakenly stated only two of the counts would run

consecutively, unlike the sentence imposed upon his co-defendants. Because the

court’s silence on the third count raised the presumption it would run concurrent

with his other two sentences, Villano’s oral sentence totaled eight years. In

contrast, the written judgment stated Villano’s sentence was ten years, identical to

that of his co-defendants. On appeal, he argued his sentence should be reduced to

reflect the court’s oral pronouncement. W e agreed, even though the district court

clearly stated he intended to sentence Villano to ten years. W e stated, “[b]ecause

there [was] no ambiguity in [the oral judgment] and there [was] a conflict

between the oral sentence and the written judgment, . . . the oral sentence

controls.” Villano, 816 F.2d at 1451.

      In so holding, we rejected the argument that the presence of a conflict

initiates an “attempt to discern the sentencing judge’s intentions.” Id. An intent-

based approach w ould dilute the principles that underlie the traditional rules —

the defendant’s right to be present at sentencing. Id. In other words, an

unambiguous oral sentence will stand despite the intent of the sentencing court as

set forth in the written judgment.

      “[T]he law continues to be that the legally effective sentence is the oral

                                         -9-
sentence” and “the true function of the written document is to help clarify an

ambiguous oral sentence by providing evidence of what was stated.” Id. at 1452

(emphasis added). The en banc Villano decision included three concurring

opinions which raised the difficulties inherent in the many forms ambiguity can

take, specifically, judicial silence. Id. at 1454 (M cKay, J., concurring) (“The

majority opinion noticeably omits silence from its list of ambiguities.”); Id. at

1458 (Logan, J., concurring) (“W hat if the orally pronounced sentence is silent or

ambiguous on an important matter?”); Id. at 1460 (Anderson, J., concurring)

(relying on his dissent in United States v. Earley, 816 F.2d 1428, 1443 (10th Cir.

1987) (“I see no difference between ambiguous silence and ambiguous words.”)).

      In this instance, Chalupa’s prior supervised release required he “contribute

to the cost of treatment . . . which may include testing for substance abuse.” (R.

Supp. Vol I, Doc. 14 at 2.) During the oral disposition of his current violation of

conditional release, after hearing arguments on Chalupa’s request for termination

of supervised release after imprisonment, the district court stated his inclination

was to “continue the supervision with the conditions that are recommended [in the

presentence report].” (R. Vol. II at 8.) The recommendation in the presentence

report stated: “If supervised release is revoked and the term of imprisonment

imposed is less than the maximum term of imprisonment imposable upon

revocation, the defendant may . . . be ordered to recommence supervised release .

. . .” (R . Vol. III at 5.) Chalupa was aware of his previous requirement to

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contribute to costs. Thus, at most, the differences between the district court’s

oral and written pronouncements create an ambiguity clarified by the written

judgment. Accordingly, we AFFIRM the district court’s judgment and sentence.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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