     Case: 14-11213      Document: 00513409335         Page: 1    Date Filed: 03/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                      No. 14-11213
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             March 7, 2016

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

SHANNON RENEE WILEY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-162


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Shannon Renee Wiley pleaded guilty to assaulting a federal officer in
violation of 18 U.S.C. § 111(a)(1).          She was sentenced to eight years of
imprisonment and three years of supervised release. On appeal, she argues
that aspects of the district court’s written judgment concerning restitution
conflict with the court’s oral pronouncement of her sentence. We affirm the
district court’s judgment with one modification.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        I.
      In March 2014, while incarcerated in a Federal Bureau of Prisons facility
in Fort Worth, Texas, Wiley initiated an oral confrontation with a correctional
officer. Despite the correctional officer’s attempts to defuse the situation,
Wiley struck the officer in the face with a pencil, injuring the officer. On the
basis of this incident, Wiley was charged with forcibly assaulting a federal
officer engaged in the performance of her official duties, in violation of 18
U.S.C. § 111(a)(1).
      Wiley waived indictment and pleaded guilty to the one-count felony
information without a plea agreement. A Presentence Report (PSR) was then
prepared, to which Wiley lodged no objections. On October 14, 2014, the
district court, adopting the PSR’s Sentencing Guidelines calculations, orally
sentenced Wiley to 96 months of imprisonment and three years of supervised
release. The court did not impose a fine, but ordered that Wiley pay restitution
to the victim “provided that the Government files that information within the
time period provided by statute.”       In addition to standard conditions of
supervised release, the court stated:
      If upon commencement of the term of supervised release there is
      any . . . part of any restitution unpaid, [Wiley] shall make
      payments on such amount at the rate of at least $50 per month no
      later than 60 days after her release from confinement and every
      month thereof until paid in full.
      A written judgment was signed and entered on October 14, 2014. Its
description of restitution as a condition of supervised release essentially
restated the oral pronouncement, but added the following language: “Any
unpaid balance of the restitution ordered by this judgment shall be paid in full
60 days prior to the termination of the term of supervised release.” In a
separate section titled “Fine/Restitution,” the judgment noted that the amount
of restitution had not yet been determined, and that non-payment of

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restitution would “not be a violation of defendant’s conditions of supervised
release so long as defendant pays as provided in defendant’s conditions of
supervised release.” The court directed counsel for the parties to meet and
confer on the issue of restitution in accordance with 18 U.S.C. § 3664.
       About two weeks later, the parties stipulated to restitution in the
amount of $3,830.28. On November 6, 2014, the district court entered an
amended written judgment ordering restitution in that amount. The condition
of supervised release relating to monthly payment of restitution, as well as
much of the language in the “Fine/Restitution” section, remained the same as
in the original written judgment. But in the “Fine/Restitution” section, the
amended judgment adds: “If, upon commencement of the term of supervised
release, any part of the $3,830.28 restitution ordered by this judgment remains
unpaid, the defendant shall make payments on such unpaid amount at the rate
of at least $100 per month . . . .” This appeal followed.
                                             II.
       Although the parties agree this appeal is properly before us, we pause to
resolve one complexity regarding Wiley’s notice of appeal. In a handwritten
letter signed October 14, 2014 (the same day the oral judgment and original
written judgment were entered), Wiley clearly stated her intent to appeal her
sentence. 1 That notice of appeal references the original written judgment
entered on October 14—not the amended written judgment entered about
three weeks later. Most of the conditions that Wiley challenges are contained



       1  The Government does not argue that Wiley’s notice of appeal—postmarked
November 5, 2014, and stamped as filed by the district court clerk on November 6, 2014—
was untimely as to the original judgment, and affirmatively states that Wiley timely filed a
notice of appeal. Therefore, timeliness poses no bar to our consideration of this appeal. See
United States v. Ortiz, 613 F.3d 550, 554 (5th Cir. 2010) (“The pro se notice of appeal was
untimely. The government notes the untimeliness but does not object to considering the
merits. The time limit for appeal can be waived. We will review the merits of Ortiz’s claims.”
(citation omitted)).
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                                 No. 14-11213
in both written judgments. But as to the requirement that Wiley pay at least
$100 a month in restitution, contained only in the amended judgment, the
question arises whether Wiley’s appeal complies with Federal Rule of
Appellate Procedure 3(c)(1)(B), which requires a party to “designate the
judgment, order, or part thereof being appealed.”
      “Rule 3 must be liberally construed in favor of appeals . . . .” United
States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006). Thus, “a mistake in
designating a judgment appealed from should not bar an appeal as long as the
intent to appeal a specific judgment can be fairly inferred and the appellee is
not prejudiced or misled by the mistake.” Turnbull v. United States, 929 F.2d
173, 177 (5th Cir. 1991). Moreover, “[f]ailure to properly designate the order
appealed from is not a jurisdictional defect, and may be cured by an indication
of intent in the briefs or otherwise.” United States v. Rochester, 898 F.2d 971,
976 n.1 (5th Cir. 1990). Here, it is clear that Wiley intended to appeal her
sentence, and the Government does not dispute that the amended judgment is
properly before us, or assert any prejudice from the arguably insufficient notice
of appeal. Indeed, the Government has fully briefed the issue arising from the
amended judgment. See United States v. Winn, 948 F.2d 145, 153–56 (5th Cir.
1991) (considering the merits when a notice of appeal failed to refer to a later-
imposed sentence, but the government identified no prejudice from the
arguable deficiency and the sentencing issues were fully briefed). Therefore,
we proceed to the merits. See United States v. Cheal, 389 F.3d 35, 51–53 (1st
Cir. 2004).
                                      III.
      Wiley argues that we should vacate and remand her sentence because
the district court’s written judgment conflicts with its oral pronouncement of
her sentence in several ways. Wiley “had no opportunity at sentencing to
consider, comment on, or object to the special conditions later included in the
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written judgment.” United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
So even though she raises these issues for the first time on appeal, we review
for abuse of discretion, not plain error. See id.
      A criminal defendant has a constitutional right to be present at
sentencing.   Id. at 380–81.     So if “there is a conflict between the oral
pronouncement and the written judgment, the oral pronouncement controls.”
United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). But “[i]f the written
judgment simply clarifies an ambiguity in the oral pronouncement, we look to
the sentencing court’s intent to determine the sentence.” Id. A conflict rather
than an ambiguity exists “[i]f the written judgment broadens the restrictions
or requirements of supervised release.” United States v. Mireles, 471 F.3d 551,
558 (5th Cir. 2006). Here, Wiley submits that there are three conflicts between
her orally pronounced sentence and the amended written judgment.
                                        A.
      First, Wiley argues that there is a conflict between (1) the oral
pronouncement that if any restitution is unpaid when she is released, Wiley
“shall make payments on such amount at the rate or at least $50 per month”;
and (2) the amended written judgment’s requirement that Wiley pay “at least
$100 per month.” As stated, the original written judgment and a different
section of the amended judgment also reflect a $50 per month minimum
payment. The Government agrees that these figures are “at odds,” and asks
us to “reform the sentence . . . by changing ‘$100’ to ‘$50.’” Our review of the
record reveals nothing that would lead us to question the Government’s view
that the inclusion of the $100 per month provision in the amended written
judgment is a typographical error that conflicts with Wiley’s orally pronounced
sentence. Therefore, we will modify the judgment to conform the minimum
monthly payment to the $50 pronounced at sentencing, and affirm the
judgment as modified. See 28 U.S.C. § 2106 (“[A]ny . . . court of appellate
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                                      No. 14-11213
jurisdiction may affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review . . . .”); United
States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009) (reforming
and affirming a district court’s judgment).
                                             B.
       Next, Wiley argues that the written requirement that any unpaid
balance of restitution be paid in full sixty days prior to the termination of her
supervised release conflicts with the oral pronouncement, which did not
mention any such requirement. We disagree. At sentencing, the district court
ordered that Wiley pay restitution in an amount to be determined, and that if
any restitution remains unpaid when her supervised release begins, she must
make payments of at least $50 per month during her period of supervised
release “until paid in full.” The district court’s written judgment clarifies that,
if Wiley has not satisfied her entire restitution obligation through monthly
payments as she nears the end of her term of supervised release, she must pay
it in full no later than sixty days before that term expires. Cf. United States v.
Cipolla, 531 F. App’x 185, 186 (2d Cir. 2013) (unpublished) (holding that a
district court’s written requirement that a defendant pay $25 per quarter
toward restitution if he earned income from a certain source, not mentioned at
sentencing, “merely clarified [his] payment schedule in the event that he
earned income from” that source). 2 This part of the written judgment therefore
clarified a matter not specifically addressed in the oral pronouncement, and
was not error. See Tang, 718 F.3d at 487.




       2  We note that Wiley does not argue that the requirement that she pay the $3,830.28
in full before the end of her supervised release is unreasonable in light of her financial
situation. Cf. United States v. Calbat, 266 F.3d 358, 366 (5th Cir. 2001) (holding that a
district court erred in requiring a defendant to pay $250,000 in restitution as a term of his
three-year supervised release without considering the defendant’s financial resources).
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                                 No. 14-11213
                                      C.
      Finally, Wiley challenges as conflicting with the district court’s oral
sentence the written statement that “non-payment [of restitution] will not be
a violation of defendant’s conditions of supervised release so long as defendant
pays as provided in defendant’s conditions of supervised release.” But this
statement does not “broaden[] the restrictions or requirements of supervised
release.” Mireles, 471 F.3d at 558. It merely clarifies that any delay in paying
restitution only violates Wiley’s terms of supervised release if she fails to
comply with the payment schedule prescribed by the district court. Therefore,
it does not conflict with the oral pronouncement of Wiley’s sentence.
                                      IV.
      For the foregoing reasons, we MODIFY the district court’s amended
written judgment to reflect a minimum monthly restitution payment of $50 per
month during Wiley’s term of supervised release, and AFFIRM that judgment
as modified.




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