     Case: 15-50174   Document: 00513906326        Page: 1   Date Filed: 03/10/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                 United States Court of Appeals
                                    No. 15-50174                          Fifth Circuit

                                                                        FILED
                                                                  March 10, 2017
UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellee

v.

CHANDA HUOR, also known as Kevin Thorn,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
      Chanda Huor was convicted of failure to register as a sex offender under
the Sex Offender Registration and Notification Act (“SORNA”). His sentence
included a prison term followed by ten years of supervised release during which
he would be subject to various conditions. His appeal challenges five of the
conditions imposed. We find the district court acted within its discretion by
imposing a special condition requiring Huor to undergo sex offender treatment
but abused its discretion by imposing a special condition prohibiting purchase,
possession, or use of sexually stimulating materials. The district court also
erred, as a matter of law, by imposing a special condition requiring the
defendant to “follow all other lifestyle restrictions . . . imposed by the
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                                 No. 15-50174
therapist.” Further, the judgment must be reformed to omit a special condition
prohibiting Huor from “residing or going to places” frequented by minors
without permission from his probation officer because that special condition
was not pronounced orally at sentencing. Similarly, the judgment must be
reformed to omit a “standard” sex offender treatment condition that largely
overlaps with, but materially differs from, the similar “special” condition that
was orally pronounced at sentencing and included separately in the written
judgment.
      In light of our rulings, only the treatment condition will stand. The
defendant also challenges a discrete aspect of this condition, which provides:
“After an initial evaluation if the doctor finds that treatment isn’t necessary
and the defendant is not a danger, the Court will amend and abate this special
condition of supervised release.” Because the district court retained its power
to sentence the defendant and did not improperly delegate it to the doctor, we
uphold this aspect of the treatment condition.
                            I.    BACKGROUND
      In 1998, at the age of 16, defendant Chanda Huor pleaded guilty to
raping a four-year-old girl. In addition to a lengthy prison sentence, he was
required to register as a sex offender for life. Huor got out of prison in 2005.
Since then, he has updated his registration several times but not with the
diligence required by law; he has multiple failure-to-register convictions.
      Huor updated his registration with the Virginia State Police in early
2013. In March of that year, he moved to San Antonio, Texas and did not
update his registration. When the deadline to do so passed, a warrant for
Huor’s arrest issued out of Virginia. U.S. Marshals eventually tracked him to
Texas, where he had moved to be with a girlfriend. After the relationship
ended, he lived with a woman named Crystal Quesada and her eight-year-old
son for nearly a year. Marshals contacted Quesada and learned that she knew
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Huor as Kevin Thorn. They did not find Huor until several days later. When
they did, he was living with a new girlfriend and her two young daughters.
This third girlfriend, Rosemary Valdez, was unaware that Huor was a
convicted sex offender and also knew him as Kevin. Huor was at Valdez’s
residence when the Marshals arrived and was arrested without incident.
      Huor was charged in a one-count indictment with violating 18 U.S.C.
§ 2250(a) as a person required to register under SORNA who had traveled in
interstate commerce and knowingly failed to register or update his
registration. He pleaded guilty. The district court sentenced Huor to 24
months of imprisonment and ten years of supervised release. Much of the
sentencing hearing concerned the propriety of sentencing conditions,
particularly the requirement that Huor undergo sex offender treatment and
the ban on sexually stimulating materials.     The district court acknowledged
that Huor had not committed any sex offenses since being released from prison
and had indeed shown no “propensity at least in the last ten years . . . to
reengage in the kind of behavior that put him where -- where he is today.”
      Huor’s counsel objected to the sex offender treatment condition. The
district court explained that it was imposing the special condition primarily
because Huor had lied to two different women, earned a place in those women’s
homes by the deceit, and thereby placed himself under the same roof as small
children.   This combination of events, a scenario SORNA is specifically
designed to prevent, satisfied the district court that Huor required continuing
sex offender treatment. In response to Huor’s objection, however, the district
court agreed that such treatment may be unnecessary and qualified the special
condition as follows: “I’m going to amend that condition, at this time, to require
that he undergo at least an initial evaluation, and if the psychiatrist or
psychologist believes that under the circumstances a -- further treatment is
not necessary, then I will amend and abate the condition.”          This “initial
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evaluation qualification” is challenged on appeal along with the special
condition itself.
      Huor’s counsel also objected to the special condition prohibiting sexually
stimulating materials. When Huor’s counsel noted the absence of any link to
pornography in Huor’s case, the district court replied, “No, he didn’t have child
pornography. He just raped a four year old.” The district court also relied on
evidence heard in prior cases that sexually stimulating materials contribute to
recidivism in pedophiles. The special condition, however, was amended and
made subject to the initial evaluation qualification.
      Other conditions imposed at sentencing provoked no objection. Pertinent
here, Huor’s counsel did not object to a condition requiring Huor to “follow all
other lifestyle restrictions or treatment requirements approved by the
therapist, psychiatrist, or psychologist and continue those restrictions as they
pertain to avoiding risk situations throughout the course of his supervision.”
And the written judgment, when handed down, included another special
condition to which Huor’s counsel had no opportunity to object—a special
condition prohibiting Huor from “residing or going to places” frequented by
minors without permission from his probation officer. The written judgment
also included, as “Standard Condition 14,” sex offender treatment largely
redundant of the sex offender treatment separately imposed as a special
condition but lacking the “initial evaluation qualification.”          Huor timely
appealed.
                               II.     DISCUSSION
                    A.   Standard of Review and Essential Law
   When challenged on appeal, conditions of supervised release are reviewed
for an abuse of discretion. United States v. Morin, 832 F.3d 513, 516 (5th Cir.
2016).


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     [S]uch conditions must be reasonably related to one of the
     following statutory factors: (i) the nature and circumstances of the
     offense and the history and characteristics of the defendant; (ii) the
     need to afford adequate deterrence to criminal conduct; (iii) the
     need to protect the public from further crimes of the defendant;
     and (iv) the need to provide the defendant with needed training,
     medical care, or other correctional treatment in the most effective
     manner.
United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citing 18 U.S.C.
§ 3553(a)(1)–(2)).
      Supervised release conditions must be “reasonably related to any of the
four factors” and “cannot involve a ‘greater deprivation of liberty than is
reasonably necessary’ to achieve the statutory goals.” Id. (quoting United
States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001)). Sentencing courts have an
obligation to explain why each special condition has been imposed. Id.
      To the extent Huor challenges conditions to which he did not object at
sentencing, we review only for plain error. See id. at 448. To satisfy this
standard of review, Huor “must show ‘(1) an error (2) that is clear or obvious,
(3) that affects substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’”     United States v.
Mendoza-Velasquez, Case No. 16-40194, 2017 WL 414363, at *2 (5th Cir. Jan.
30, 2017) (quoting United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014)).
He bears the burden as to each of these four questions, and carrying that
burden “is difficult, as it should be.” Id. (quoting Puckett v. United States, 556
U.S. 129, 135, 129 S.Ct. 1423, 1429 (2009)).
                       B.    The “Treatment Condition”
      Huor’s first challenge is to the treatment condition. He argues that
treatment is “unnecessary” and not supported by findings reasonably related
to the § 3553(a) factors. We disagree. The district court adequately articulated
why the treatment condition is reasonably related to the nature and

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circumstances of Huor’s crime, the need to protect the public from further
crimes, and the need to provide Huor with treatment.              See 18 U.S.C.
§ 3553(a)(1)–(2).
      The district court explained: “the reason for the imposition . . . is his
false—and lying to these women and resulting in his placing himself within a
home with small children.” The district court was concerned because Huor’s
failure to register led to precisely the risk of harm that SORNA is designed to
prevent—a convicted sex offender living in a home with small children under
a false name and without informing the children’s mother of his past. Huor
previously raped a small child and has since violated SORNA with the
consequence (and perhaps purpose) of embedding himself into the household
of a woman with small children. The district court determined, based on this
specific conduct, that sex offender treatment was warranted, and this
determination was not an abuse of discretion.
      Huor also challenges, on appeal, the initial evaluation qualification,
which provides that “[a]fter an initial evaluation if the doctor finds that
treatment isn’t necessary and the defendant is not a danger, the Court will
amend and abate this special condition of supervised release.” There being no
objection at sentencing to this aspect of the special condition, our review is for
plain error.
      It is proper for a court to decide that “the manner and means” by which
a condition of supervised release is implemented may be determined by a
probation officer or therapist. Morin, 832 F.3d at 516–17. A court may not,
however, delegate the duty of determining whether a condition will be imposed
at all. See id. at 518. Rather, the court must “retain and exercise ultimate
responsibility” for that sentencing decision.     Id. (quoting United States v.
Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006) (alterations omitted)). Thus,
for example, giving a therapist power to impose “lifestyle restrictions” on a
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defendant “[w]ithout the supervision of the district court” represents a
violation, but there is no violation if the district court retains a supervisory
role. See id.
      In Morin, we rejected a special condition that required the defendant to
“follow all other lifestyle restrictions or treatment requirements imposed by the
therapist, and continue those restrictions as they pertain to avoiding risk
situations throughout the course of supervision.” Id. at 515–17 (emphasis
added). In United States v. Lomas, the challenged special condition required
the defendant “to participate in a mental health program as deemed necessary
and approved by the probation officer,” and we vacated and remanded for
clarification, instructing that if the district “court intends to leave the issue of
the defendant’s participation in therapy to the discretion of the probation
officer, such a condition would constitute an impermissible delegation of
judicial authority and should not be included.” 643 F. App’x 319, 324–25 (5th
Cir. 2016) (per curiam) (emphasis added). Lomas was recently followed in a
published opinion, United States v. Franklin, 838 F.3d 564 (5th Cir. 2016). In
all three cases, we focused on the wording of the condition in determining its
propriety. Morin, 832 F.3d at 517 (reviewing the condition “as presently
constructed”); Lomas, 643 F.App’x at 322 (focusing on the “wording” of the
special condition at issue); Franklin, 838 F.3d at 567 (same).
      Huor’s arguments largely ignore the actual wording of the written
judgment, imbuing the reviewing doctor with sentencing power not reflected
in the judgment. Thus, Huor argues that “the conditions take effect, by default,
if a doctor finds that treatment is necessary,” that the “conditions take effect
even if the doctor is undecided about the necessity for treatment,” that the
“conditions abate only upon a finding that treatment is unnecessary,” and that
“[e]ither way, it is the doctor who has the power to decide whether Huor will
be subject to” the special conditions. Not so.
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      It is the district court that “will amend and abate this special condition
of supervised release” if a “doctor finds that treatment isn’t necessary and the
defendant is not a danger.” Thus, the district court has retained ultimate
supervisory power as required by Morin, 832 F.3d at 518; see also Mickelson,
433 F.3d at 1056 (“Conditions delegating limited authority to non judicial
officials . . . are permissible so long as the delegating judicial officer retains
and exercises ultimate responsibility.”). It is the district court that does the
sentencing, and that is all Article III requires.
      While the judgment’s wording rightly preserves the judiciary’s power to
impose the sentence, its if/then structure creates the concerning impression
that the judge may act as an automaton upon receiving the findings of the
doctor.   “[P]reserving the judiciary’s exclusive authority to impose sentences
is an area in which it is important for courts to be vigilant.” Morin, 832 F.3d
at 518. We have held that the district court committed no improper delegation
precisely because it did not delegate the power to sentence. We emphasize that
the district court must retain that power in a meaningful way. “[I]n every
delegation, the court must retain the right to review findings and to exercise
ultimate authority for resolving the case or controversy.” United States v.
Johnson, 48 F.3d 806, 809 (4th Cir. 1995). The judge’s role must not be reduced
to the clerical; the doctor’s role must not be elevated to the judicial. Under our
reading of the special condition, the doctor makes findings on the necessity of
treatment and danger of the defendant, and the judge retains the authority
and responsibility to review the doctor’s findings and to adjust the sentence if,
in its considered view, the findings so merit.         See id. (“It has long been
recognized that courts may utilize masters and commissioners in connection
with factfinding, and the Supreme Court has affirmed Congress’ delegation of
factfinding functions to an administrative agency.”).


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             C.   The “Sexually Stimulating Materials Condition”
      Huor also challenges the sexually stimulating materials condition
requiring the defendant to “refrain from purchasing, possessing, or using any
sexually stimulating or sexually oriented materials including but not limited
to written, audio and visual depictions, such as, pornographic books,
magazines, photographs, films, videos, DVDs, computer programs, or any
other media for portrayal of the same.” Relying primarily on Salazar, he
contends that the record does not support a prohibition of sexually stimulating
materials.
      Our analysis starts with the reasons given by the district court and
analysis of their relationship to the § 3553(a) factors. As mentioned previously,
the district court imposed the sexually stimulating material condition because
Huor previously raped a small child and because, from evidence presented in
prior cases, the district court was concerned that sexually stimulating
materials may contribute to recidivism in pedophiles.        The first of these
reasons bears an inadequate relationship to the statutory factors. The second
reason reflects a failure to tailor the special condition to the individual
defendant and is unsupported by the record.
      The sexually stimulating materials condition was imposed, in part,
because Huor “raped a four-year-old.”      This rationale relates to the first
§ 3553(a) factor, the nature and circumstances of the offense and the history
and characteristics of the defendant. “[A] special condition that is not related
to the crime of conviction will nevertheless be upheld as long as it is justified
by a defendant’s criminal history,” and it is therefore proper to consider Huor’s
1998 rape conviction. Salazar, 743 F.3d at 452. Under Salazar, however, that
“singular and now-remote sexual offense” does not justify a ten-year sexually
stimulating materials condition. See id.


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       Like Huor, the defendant in Salazar had been convicted of one sex-
related offense years prior—a conviction that subjected him to SORNA’s
registration requirements. Id. at 447. And like Huor, the conviction leading
to imposition of supervised release and the concomitant sexually stimulating
materials condition was failure to register. Id. As here, “[n]othing in Salazar’s
history suggest[ed] that sexually stimulating materials fueled his past crimes,”
and there was no evidence that Salazar was “a repeat offender of sex crimes or
that access to pornographic materials contributed to his original offense.” Id.
at 452. Indeed, Huor was only 16 at the time of his crime, and the only evidence
regarding its catalyst is that he was himself the victim of a similar crime when
he was 5 years old. Neither the past offense, nor the new conviction, nor the
two of them considered in tandem, “justify the imposition of this restriction.”
Id.; see also United States v. Windless, 719 F.3d 415, 422 (5th Cir. 2013). 1
       The district court explained the second reason for imposing a sexually
stimulating materials condition: based on testimony heard in other cases,
“exposure to sexually explicit materials for these kinds of individuals can in
fact result in an acceleration of [the] process” toward recidivism. This rationale
can be classified as deterrence, protection of the public, and therapeutic—the
final three § 3553(a) factors. Nonetheless, on this record, imposition of the
special condition fails to pass muster.
       “[S]pecial conditions must be tailored to the individual defendant and
may not be based on boilerplate conditions imposed as a matter of course in a




       1 Windless was decided on the grounds that the challenged condition of supervised
release involved a greater deprivation of liberty than was reasonably necessary to achieve
the statutory aims. 719 F.3d at 422. Salazar did not reach that question, instead finding the
challenged condition not reasonably related to any of the four factors. See 743 F.3d at 451.
While Huor has argued both points, our decision rests on the relationship between the
condition and the statutory factors. Windless took a different analytical approach but is
illuminating nonetheless.
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particular district.” United States v. Caravayo, 809 F.3d 269, 276 (5th Cir.
2015) (per curiam). Thus, district courts are required “to set forth factual
findings to justify special probation conditions.” Salazar, 743 F.3d at 451
(quoting United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)). “Factual
findings made in support of a sentencing determination must be supported by
a preponderance of the evidence.” United States v. McCaskey, 9 F.3d 368, 372
(5th Cir. 1993). This includes factual determinations justifying conditions of
supervised release. See Windless, 719 F.3d at 420.
      Early in the sentencing hearing, the district court stated that it did not
“know whether [Huor] would be classified as a pedophile or not.” Nonetheless,
it went on to discuss how “[t]hey’re notoriously hard to treat and have a pretty
high recidivism rate from all the testimony I’ve heard over the many years
from psychiatrists and psychologists and those who treat sex offenders.” The
district court returned to this topic when justifying the sexually stimulating
materials condition:
      I’ve -- over the years, I’ve heard testimony from psychiatrists and
      psychologists, I can’t even begin to tell you how many times, about
      how these individuals who have these predilections, it’s very
      difficult to treat them. There’s a very high recidivism rate, and
      that exposure to sexually explicit materials for these kinds of
      individuals can in fact result in an acceleration of that process.
      The district court’s approach is not the “tailored,” individualized
approach required by the law. See Caravayo, 809 F.3d at 276. Rather, the
district court based his sentencing decisions on evidence heard in other cases—
evidence with uncertain relevance to Huor.        In short, the district court
sentenced Huor as a pedophile after acknowledging uncertainty regarding
whether Huor actually is a pedophile. This was error. The factual basis
supporting the special condition was not supported by a preponderance of the
evidence.   See Windless, 719 F.3d at 420.         Indeed, the district court

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acknowledged that many of the facts it considered most important in imposing
the sexually stimulating materials condition—whether Huor would be
classified as a pedophile, whether Huor was “regressing,” whether viewing
pornography would contribute to his risk of recidivism—were unknown at the
sentencing hearing.    Conditions of supervised release must be “narrowly
tailored” and supported by the record. United States v. Duke, 788 F.3d 392, 403
(5th Cir. 2015). The sexually stimulating materials condition is neither and
cannot stand.
      The government’s meager defense of the sexually stimulating materials
condition only confirms our ruling. The government distinguishes Salazar
primarily on the basis that Salazar “concluded that the district court erred by
not explaining how the supervised release condition was reasonably related to
the goals of supervised release,” whereas here “the district court identified and
explained its reasons for imposing the special conditions and how they related
to the goals of supervised release.” An explanation is necessary, but it is not
sufficient. Thus, Salazar did more than vacate and remand for lack of an
explanation; it also found that the record could not support imposition of the
sexually stimulating materials condition. See 743 F.3d at 452–53. Here, the
district court gave reasons, but they were inadequate under Salazar and other
cases, and our review of the record yields “insufficient evidence of a reasonable
relationship between the condition and the statutory factors.” Id. at 453.
      The government also points out that, unlike Salazar, Huor previously
violated the terms of his parole by viewing pornography. Thus, this case is
closer than Salazar: it cannot be said of Huor (as it was of Salazar) that there
is “no indication in the record [of] an unhealthy relationship with such
materials” and no evidence that he “ever used pornography.”          Id. at 452.
Nonetheless, a defendant’s right to possess and view sexually stimulating
materials is not defeated by evidence that the defendant has in fact viewed
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sexually stimulating materials. While it is worrisome that Huor violated the
terms of his parole to view such material, it remains “hard to imagine how
preventing [Huor] from accessing sexually stimulating materials would
prevent future criminal conduct.” See id. Conditions of supervised release
must serve the purposes of § 3553(a) and may not merely represent stumbling
blocks.
      The district court did not mention Huor’s past pornography-related
parole violation as a basis for imposing the sexually stimulating materials
condition, and this is not a case where “clear evidence in the record” allows us
to conclude that the condition “was reasonably necessary.” See Caravayo, 809
F.3d at 276. On remand, the district court is free to consider the past parole
violation in view of the § 3553(a) factors when deciding whether to re-impose
the special condition.
      The government’s remaining arguments in support of the sexually
stimulating material condition are generic and lack merit. The government
contends that “given Appellant’s designation as a ‘violent sex offender’ and the
court’s desire to deter him from this conduct in the future, the condition
prohibiting him from access to sexually stimulating material was not an abuse
of discretion.”   Similarly, it argues that “because Appellant had committed a
crime that was sexual in nature it was reasonable for the district court to
restrict Appellant’s access to sexually stimulating material in an effort to
prevent future crimes or aid in his rehabilitation.” These blanket arguments
were rejected in Salazar, see 743 F.3d at 450–51, and are inconsistent with the
individualized approach the law requires, see Caravayo, 809 F.3d at 276.
      The primary case upon which the government relies, United States v.
McGee, 559 F.App’x 323 (5th Cir. 2014), is unpublished and distinguishable.
In a footnote, McGee acknowledged that Salazar involved “a similar special
condition imposed in a SORNA failure-to-register case” but nonetheless found
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the condition warranted. Id. at 330 n.33. The difference, we explained, was
that the defendant McGee had a “significant criminal history involving several
sexual assaults and his pattern for quickly reoffending following release.” Id.
Huor’s offense was grave and disturbing, but it is the “singular and now-remote
sexual offense” of Salazar rather than the multiple offenses of McGee. Salazar
is far more similar to this case than is McGee. See also United States v. Prieto,
801 F.3d 547, 552–53 (5th Cir. 2015) (per curiam) (discussing Salazar and
McGee). Other cases cited by the government fare no better. The government
points us to United States v. Ellis, 720 F.3d 220 (5th Cir. 2013) (per curiam).
But Ellis involves a defendant who was tried and convicted for possession of
child pornography. 720 F.3d 220 at 223. Unlike the defendant in Ellis and
just like the defendant in Salazar, “[n]othing in [Huor’s] history suggests that
sexually stimulating materials fueled his past crimes” and there is no evidence
“that access to pornographic materials contributed to his original offense.” 2
Salazar, 743 F.3d at 452. Finally, the government cites United States v.
Weatherton, 567 F.3d 149 (2009). That case involved the plain error standard
of review and a defendant with a “lengthy history” of crime including multiple
violent sex offenses. Id. at 151, 154. It does not aid the government.
                           D.     Delegation and Plain Error
      We return to Article III’s prohibition on the delegation of core judicial
functions. According to Huor, the district court erred by imposing a special
condition requiring the defendant to “follow all other lifestyle restrictions or
treatment requirements imposed by the therapist, and continue those
restrictions as they pertain to avoiding risk situations throughout the course
of supervision.” Because he did not object to this condition at sentencing, our
review is for plain error.


      2   In Prieto, as here, we distinguished both McGee and Ellis. See 801 F.3d at 552–53.
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                                  No. 15-50174
      The   challenged    condition   is      identical   to   the   condition   found
impermissible in Morin. Accordingly, there is error, and it is plain. See Morin,
832 F.3d at 518; see also United States v. Escalante-Reyes, 689 F.3d 415, 423
(5th Cir. 2012) (en banc) (“[W]here the law is unsettled at the time of trial but
settled by the time of appeal, the ‘plainness’ of the error should be judged by
the law at the time of appeal.”). Further, under Prieto, we “easily conclude that
the district court’s error affected [Huor’s] substantial rights” because “[h]ad
the error not occurred, [Huor] would not have been subjected to the
unwarranted special condition.” 801 F.3d at 553. Morin also establishes the
requisite effect on Huor’s substantial rights. See 832 F.3d at 517 (explaining
that the condition “extends to a therapist the authority to impose, without
court review, independent conditions of supervised release that might extend
beyond the period of supervised release and that could serve as the basis for
violations of the terms of supervised release separate and apart from non-
compliance with the treatment program”).
      The only remaining question is “whether the error affects ‘the fairness,
integrity, or public reputation of judicial proceedings’ such that the appellate
court should exercise its discretion to correct the error.” Escalante-Reyes, 689
F.3d at 425 (quoting Puckett, 556 U.S. at 135, 129 S.Ct. at 1429). Here we
confront a judgment that cedes the judiciary’s exclusive sentencing power to a
therapist. Such an error necessarily “undermines the integrity of the judicial
proceedings.” United States v. Renteria-Martinez, Case No. 16-50033, 2017 WL
465299, at *4 (5th Cir. Feb. 2, 2017).
      Given the error’s stark impact on the fairness, integrity, and public
reputation of judicial proceedings, we will exercise our discretion to correct it.
In doing so, we are not alone. See United States v. Pitts, Case No. 15-50850,
2016 WL 6832953 (5th Cir. Nov. 18, 2016) (per curiam) (correcting, on plain
error review, an identical error involving the same special condition); see also
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                                   No. 15-50174
United States v. Alaniz, Case No. 16-40321, 2016 WL 7187378, at *2 (5th Cir.
Dec. 9, 2016) (per curiam) (“Because such an error involves ‘core judicial
functions,’ see Franklin, 838 F.3d at 568, we find the exercise of this court’s
discretion to correct the error is warranted under these circumstances.”).
                 E.     Conflicts Between the Oral Pronouncement
                      at Sentencing and the Written Judgment
         The written judgment includes a special condition prohibiting Huor from
“residing or going to places” frequented by minors without permission from his
probation officer. This     condition   was   not     announced     at   sentencing.
Defendants have a constitutional right to be present at their sentencing, and
the government concedes that the judgment must be reformed to conform to
the oral sentence. United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(per curiam) (“[W]hen there is a conflict between a written sentence and an
oral pronouncement, the oral pronouncement controls.”).
         The same body of law governs Huor’s next argument, that Standard
Condition 14 conflicts with the oral sentencing. As a general rule, standard
conditions need not be orally pronounced. See United States v. Torres-Aguilar,
352 F.3d 934, 936 (5th Cir. 2003). This rule, however, does not resolve the
issue.    Huor’s argument is not premised on the notion that the standard
condition was unannounced and therefore necessarily conflictual with all that
was pronounced. See, e.g., Martinez, 250 F.3d at 942 (“The district court’s
failure to mention mandatory drug treatment in its oral pronouncement
constitutes a conflict, not an ambiguity.”). Huor’s argument is that Standard
Condition 14 conflicts with the sex offender treatment as pronounced (and
“amend[ed]”) at sentencing. In Huor’s view, this is not a case where “[t]he
written judgment simply clarifie[s] the meaning of that sentence by specifying
what the supervision [is meant] to entail.’” Torres-Aguilar, 352 F.3d at 938
(alterations in original) (quoting United States v. Warden, 291 F.3d 363, 365

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                                    No. 15-50174
(5th Cir. 2002)). Rather, this is a case where the written judgment muddles
the picture. We agree with Huor. The special conditions are nearly redundant
but not quite identical, and only the orally pronounced condition should be part
of the written judgment.
      The Government argues that if the conditions are read together, there is
no conflict because the sex offender treatment required by Standard Condition
14 is necessarily contingent on the initial evaluation qualification included in
the special treatment condition. This argument would prevail if we perceived
ambiguity rather than conflict. See United States v. Bigelow, 462 F.3d 378,
381 (5th Cir. 2006) (“If . . . the difference between the [the oral pronouncement
and the written judgment] is only an ambiguity, we look to the sentencing
court's intent to determine the sentence.”).        Here, however, the asserted
ambiguity is created by nothing more than a simple conflict: one condition
imposes sex offender therapy subject to the initial evaluation qualification; one
condition flatly imposes sex offender therapy. Only the first of these two
conditions was pronounced at oral sentencing, and only it may remain. The
judgment must be reformed to conform to the oral pronouncement, and
Standard Condition 14 must be excised. See Martinez, 250 F.3d at 942.
                              IV.     CONCLUSION
      For the foregoing reasons, we REMAND for resentencing. The treatment
condition stands, but all other challenged conditions are VACATED. The
district court may reconsider imposing the sexually stimulating materials
condition in light of this opinion.




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