                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 02-20134


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                         PABLO A. CASAS,

                                             Defendant-Appellant.
_________________________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
                         (H-01-CR-673-1)
_________________________________________________________________
                        November 12, 2002

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     This appeal by Pablo A. Casas is from a judgment revoking his

supervised release and re-sentencing him.   Primarily at issue are

whether the district court reversibly erred:    (1) by including, in

its written judgment of conviction and sentence, special conditions

of supervised release different from those orally pronounced at

sentencing; and (2) by delegating to Casas’ probation officer the

authority to set the amount and timing of payments for court-




     *
      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this opinion should not be published and is not precedent except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.
ordered “drug/alcohol          detection    and   treatment”   and   electronic

monitoring services.       VACATED AND REMANDED.

                                       I.

     After Casas pleaded guilty in the United States District Court

for the Central District of Illinois (Illinois district court) to

knowingly possessing, with intent to distribute, 1000 kilograms or

more of     a   mixture   or    substance    containing    marijuana,   he    was

sentenced in March 1996 to 84 months’ imprisonment and a five-year

term of supervised release.         His term of imprisonment was reduced

to 46 months following the Government’s motion under FED. R. CRIM.

P. 35(b).

     Casas was released from prison in January 1999 and began his

term of supervised release.         In August 2000, the Illinois district

court revoked Casas’ supervised release because of his possession

and use of a controlled substance.           He was sentenced to 12 months’

imprisonment and a three-year term of supervised release.                    That

second term of supervised release began in May 2001, following his

second release from prison.

     That August, jurisdiction over Casas’ supervised release was

transferred to the United States District Court for the Southern

District of Texas (Texas district court).                 That September, the

probation office for that district filed a petition to revoke

Casas’ supervised release.          He pleaded “true” to the allegations

made by the probation office.          The Texas district court revoked



                                       2
Casas’   supervised    release   and     sentenced   him   to   12   months’

imprisonment and to a supervised release term of three years.

                                   II.

     Casas contends:    the Texas district court reversibly erred in

imposing certain special conditions of supervised release; and the

statute under which he was originally convicted, 21 U.S.C. § 841,

is facially unconstitutional in the light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

                                   A.

     For the challenged special conditions, Casas contests:            terms

in the written judgment different from those orally pronounced at

sentencing; and, the district court’s delegating to the probation

office the authority to set the amount and timing of payments for

court-ordered drug/alcohol detection and treatment and electronic

monitoring related to home detention.

     The imposition of special conditions for supervised release is

reviewed for an abuse of discretion.            E.g., United States v.

Warden, 291 F.3d 363, 364, 365 n.1 (5th Cir. 2002); United States

v. Bird, 124 F.3d 667, 684 (5th Cir. 1997), cert. denied, 523 U.S.

1006 (1998).   (Casas’ objection was raised for the first time on

appeal because he had no opportunity to object to new special

conditions imposed by the written judgment.          Thus, we review under

the usual abuse of discretion standard.         See Warden, 291 F.3d at

365 n.1).   A district court abuses its discretion if it bases its


                                    3
decision on “an error of law or a clearly erroneous assessment of

the evidence”.    United States v. Mann, 161 F.3d 840, 860 (5th Cir.

1998), cert. denied, 526 U.S. 1117 (1999).

                                      1.

     Casas contends that, because certain special conditions in the

written judgment differ from those orally pronounced at sentencing,

the written judgment must be revised to conform to the conditions

orally imposed.

     At the sentencing hearing, the Texas district judge stated

that Casas would be sentenced to supervised release “on the same

conditions   as   [imposed    by   the     Illinois       district    court   and]

contained in the initial supervised release form together with any

additional   matters   that    will       be   in   the    final     judgment   of

revocation....”    The district judge then stated that additional

conditions of Casas’ supervised release would, inter alia, “include

home confinement with electronic monitoring for one year following

his release [and] drug treatment which will be required”.

     In addition to ordering drug treatment and home confinement,

the written judgment provides:

          The defendant shall further submit to drug
          detection techniques in addition to those
          performed by the treatment agency, as directed
          by the probation officer. The defendant will
          incur costs associated with such drug/alcohol
          detection and treatment, based on ability to
          pay as determined by the probation officer.

          ...


                                      4
          If   electronic  monitoring   is  used, the
          defendant will incur costs associated with
          such monitoring, based on ability to pay as
          determined by the probation officer.

(Emphasis added.)

     Casas concedes that certain portions of the written judgment’s

special conditions of supervision “arguably embody” the orally-

pronounced condition of drug treatment.        On the other hand, he

claims that the written judgment impermissibly expands upon the

oral pronouncement by requiring: (a) submission to drug detection

techniques, as directed by the probation officer; and (b) payment

of costs associated with drug/alcohol detection and electronic

monitoring, as determined by the probation officer.

                                 a.

     For the claimed variation concerning the additional drug

testing, Casas contends the issue is governed by United States v.

Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (“In this circuit, it

is well settled law that where there is any variation between the

oral and written pronouncements of sentence, the oral sentence

prevails.”).

     In Martinez, the district court orally imposed imprisonment,

supervised release, and 100 hours of community service.       Id. at

941-42. The written judgment, however, also required participation

in a drug/alcohol program.   See Id. at 942.   Martinez held that the

oral pronouncement and written judgment were in conflict because,

at sentencing, the district court did not include mandatory drug

                                 5
treatment as a special condition of supervised release; the case

was remanded for the district court to amend the judgment.           See id.

     The Government contends the facts at hand can be distinguished

from those in Martinez.       It asserts that, here, the written

judgment does not impose a new condition because, in its oral

pronouncement, the Texas district court incorporated the conditions

of Casas’ original supervised release, as imposed by the Illinois

district court.

     That initial judgment provides that, as a special condition of

supervision, Casas “shall participate in a program for substance

abuse treatment/counseling including testing to determine whether

[he has] used controlled substances and/or alcohol, under a plan to

be established by the U.S. Probation Office” (treatment/counseling

provision). (Emphasis added.) That initial judgment also requires

Casas to “submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as

directed by the probation officer” (testing provision).

     The   Government   contends:       the    Illinois   district   court’s

treatment/counseling provision does not explicitly refer to testing

by a treatment agency, but instead calls for participation in a

“program” including testing under a “plan to be established by the

U.S. Probation Office”; thus, the provision allows testing at the

discretion of the probation officer.          Contrary to the Government’s

contention, however, that treatment/counseling provision apparently


                                    6
refers to testing in connection with a treatment and counseling

agency’s program.     Further, although the Illinois district court’s

testing   provision    allows   the       probation    officer   to   require

additional drug testing, it specifies the timing of tests and

minimum number to be performed.

     Considering the original testing provision, its adoption by

the Texas district court, and that court’s written judgment, the

judgment creates a minor conflict between the oral pronouncement

and judgment with respect to such testing.            It is clear that, like

the Illinois district court, the Texas district court intended,

through its written judgment, that Casas be required to submit to

drug tests in addition to those performed by the treatment agency,

at the direction of the probation officer.            The Illinois district

court, however, imposed more specific requirements for drug testing

at the direction of the probation officer:            one test in the first

15 days; and, at least two tests thereafter.

     Because the Texas district court’s written judgment places no

limits on the probation officer’s discretion to require more than

one test within the first 15 days, the judgment allows testing

beyond that prescribed by the Illinois district court’s testing

provision.   In addition, unlike the Illinois district court’s

testing provision, the written judgment does not require at least

two tests after the first 15-day period.




                                      7
       To the extent there is conflict between the oral pronouncement

and written judgment, the former controls.             Martinez, 250 F.3d at

942.    In sum, the written judgment must be conformed to the oral

pronouncement, including the incorporated special conditions on

testing imposed by the Illinois district court.

                                       b.

       Casas also contends that the Texas district court’s written

judgment differs from its oral pronouncement to the extent the

former imposes payment requirements.         Again, the judgment requires

Casas to pay for costs associated with drug/alcohol detection and

treatment and with electronic monitoring.

       Casas’ contention is precluded by Martinez, as applied by

Warden, 291 F.3d at 363.         Warden applied the rule of Martinez under

facts closely analogous to the case at hand.           The district judge in

Warden orally pronounced that the defendant was required to undergo

various forms of treatment and counseling as conditions of his

supervised release.         Id. at 364.     In the written judgment, the

district    court   added    a    requirement   that    Warden   incur   costs

associated with the treatment and counseling “based on ability to

pay as determined by the probation officer”.           Id.   Warden contended

that the district court committed reversible error by adding the

payment condition.     Id. at 365.

       Our court determined that the difference between the oral

pronouncement and written judgment “create[d], if anything, an


                                        8
ambiguity”.      Id.    Because there was ambiguity, “the entire record

[had to]    be    examined      to    determine      the      district   court’s   true

intent”.    Martinez, 250 F.3d at 942.              Looking to the intent of the

sentencing court, Warden determined that “the requirement that

Warden   bear    the    costs    of    the       ordered   treatments     is   clearly

consistent with the district court’s intent that he attend [the

ordered treatment and counseling], as evidenced in the statements

made by the court at the sentencing hearing”.                    Warden, 291 F.3d at

365.

       Similarly, as a condition of Casas’ supervised release, the

district   court       orally   required         Casas   to    undergo   drug/alcohol

treatment and monitoring and to submit to home detention with

electronic monitoring.          The written judgment specifying that Casas

incur costs associated with these special conditions is consistent

with the district court’s intent in imposing them. In this regard,

Casas has not shown an abuse of discretion.

                                          2.

       Alternatively, Casas contends the district court impermissibly

delegated to the probation office the task of setting the amount

and timing of payments.              Casas bases this on 18 U.S.C. § 3672,

which provides in relevant part:

            Whenever the court finds that funds are
            available for payment by or on behalf of a
            person furnished such services, training, or
            guidance, the court may direct that such funds
            be paid to the Director. Any moneys collected
            under this paragraph shall be used to

                                             9
            reimburse the appropriations obligated and
            disbursed in payment for such services,
            training, or guidance.

     Casas maintains that, because § 3672 refers to “the court”, it

contemplates a judicial, not a probation officer’s, finding and

order concerning a defendant’s ability to pay. Section 3672 simply

establishes   the      powers   and    duties   of   the    Director   of   the

Administrative Office of the United States Courts and is permissive

rather than mandatory. It does not require judicial determinations

of ability to pay, nor does it prevent the district court from

delegating such determinations to probation officers.

     Casas also relies on United States v. Albro, 32 F.3d 173, 174

(5th Cir. 1994), which held that a determination of restitution

payments is a judicial function that cannot be delegated to a

probation officer.

     Casas’ assertion is foreclosed by Warden, 291 F.3d at 365-66,

which rejected an argument that the district court “impermissibly

delegated its authority to the probation officer to determine [the

defendant’s] ‘ability to pay’ the costs of ... treatments”. Warden

noted that the authority of the probation officer was limited to a

determination     of     Warden’s     ability   to   pay,     “a   factfinding

determination made by probation officers in other contexts”.                Id.

at 366. Warden distinguished Albro because it involved restitution

payments,   not   drug    treatment    costs.     See   id.   Similarly,    the

probation officer’s discretion in the case at hand is limited to

                                       10
determining ability to pay, and this case deals with drug treatment

costs, not restitution.

                                    B.

     Although Casas’ notice of appeal states he is appealing the

revocation judgment and sentence, he also challenges the validity

of his underlying conviction and sentence.        As was done in Warden,

291 F.3d at 366, this challenge is premised on the notion that the

statute     of   conviction,   21    U.S.C.   §     841,   is   facially

unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.

466 (2000) (facts that increase penalty beyond statutory minimum

must be submitted to jury and proved beyond a reasonable doubt).

     A threshold issue, however, is whether, in a revocation

proceeding, Casas may challenge his underlying conviction and

sentence.    This question was left open in United States v. Teran,

98 F.3d 831, 833 n.1 (5th Cir. 1996).

     Assuming arguendo Casas can now challenge the validity of his

underlying conviction, his challenge fails.        Casas claims that 21

U.S.C. § 841 is facially unconstitutional under Apprendi because

the statute, consistent with the intent of Congress, treats drug

type and quantity as sentencing factors.      On the other hand, and as

was done in Warden, 291 F.3d at 366, Casas concedes that his claim

is foreclosed in this circuit by United States v. Slaughter, 238

F.3d 580, 582 (5th Cir.) (“We see nothing in the Supreme Court

decision in Apprendi which would permit us to conclude that 21

                                    11
U.S.C. §§ 841(a) and (b), 846, and 860(a) are unconstitutional on

their face.”), cert. denied, 532 U.S. 1045 (2001).   He seeks only

to preserve the issue for further review.

                              III.

     For the foregoing reasons, the judgment is VACATED and this

case is REMANDED to the district court for it to amend its written

judgment to conform to its oral pronouncement of sentence.

                                            VACATED AND REMANDED




                               12
