“When the defendant confirms review of the PSR and sentencing goes forward, a court’s oral adoption of PSR-recommended conditions gives the defendant an opportunity to object.”
How later courts described this case
- “When the defendant confirms review of the PSR and sentencing goes forward, a court’s oral adoption of PSR-recommended conditions gives the defendant an opportunity to object.”
- remanding for resentencing when review of the record did not resolve ambiguity
- acknowledging a defendant’s right to be present at resentencing and other proceedings expanding the sentence
- acknowledging a 2 Case: 20-40210 Document: 00515796491 Page: 3 Date Filed: 03/25/2021 No. 20-40210 defendant’s right to be present at sentencing in the context of a revocation hearing
Written by the judges who cited it.
The opinion
Case: 20-40210 Document: 00515796491 Page: 1 Date Filed: 03/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 25, 2021
No. 20-40210 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Wilbert Brown,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:16-CR-74-5
Before Dennis, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Wilbert Brown pleaded guilty to conspiracy to commit wire-fraud. He
was sentenced to thirteen months in custody; three years of supervised
release; and ordered to pay a $100 special assessment and $31,800 in
restitution. The district court also imposed several special conditions of
supervised release related to (1) payment of penalties, (2) financial
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40210 Document: 00515796491 Page: 2 Date Filed: 03/25/2021
No. 20-40210
information, (3) credit, (4) gambling, (5) psychoactive substances,
(6) participation in and payment for drug testing and treatment, and
(7) participation in and payment for mental health treatment and
prescriptions.
Just over a year after Brown began his term of supervised release, it
was revoked for violation of supervised-release conditions. At Brown’s
revocation hearing, the magistrate judge recommended a sentence of twelve
months in custody, two years of supervised release, the same mandatory and
standard conditions included in the original sentence, the same special
condition regarding restitution payment, and the special condition of living
in a residential reentry center for 180 days after his release.
The district judge orally sentenced Brown to serve fourteen months
in custody, serve two years of supervised release, and pay $24,869.11 in
restitution. In its written judgment, the court imposed the same mandatory
and standard conditions as the original written judgment, the same criminal
monetary penalties of a $100 special assessment and $31,800 in restitution,
and the same special conditions. The written judgment imposed fourteen
months in custody; two years of supervised release; and two new special
conditions requiring home detention for 180 days and payment of $24,689.11
in restitution.
Brown challenges the $100 special assessment, the $31,800 restitution
obligation, the special condition requiring payment of $24,689.11 in
restitution, and conditions (2)–(6) of the original special conditions. We
AFFIRM in part, VACATE in part, and REMAND for resentencing.
I.
A defendant has the same right to be present at his sentencing after
revocation of supervised release that he has at his initial sentencing. United
States v. Rodriguez, 23 F.3d 919, 921 (5th Cir. 1994) (acknowledging a
2
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No. 20-40210
defendant’s right to be present at sentencing in the context of a revocation
hearing) (citing United States v. Moree, 928 F.2d 654, 655–56 (5th Cir. 1991)
(acknowledging a defendant’s right to be present at resentencing and other
proceedings expanding the sentence)). We apply one of two standards of
review for sentencing appeals that are grounded in that right to be present.
See United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (citing Fed. R.
Crim. P. 52(b), 51(b)). If the defendant had no opportunity to object, we
review for abuse of discretion; if he had the opportunity but failed to object,
plain error review applies. United States v. Omigie, 977 F.3d 397, 406-07 (5th
Cir. Oct. 7, 2020). Notice is deemed given where a condition is mandatory
or where the court expressly states that it adopts the conditions listed in a
document such as a presentencing report (PSR) which the defendant has had
the opportunity to review. See Diggles, 957 F.3d at 560 (“When the
defendant confirms review of the PSR and sentencing goes forward, a court’s
oral adoption of PSR-recommended conditions gives the defendant an
opportunity to object.”) (citations omitted).
II.
A.
Brown challenges the $100 special assessment. This special
assessment was included in the written judgment imposed following Brown’s
revocation hearing but was not orally announced. This fee is a mandatory
special assessment on any individual convicted of a felony offense against the
United States. 18 U.S.C. § 3013(a)(2)(A). Brown argues that because the
special assessment is not mandatory under 18 U.S.C. § 3583, which governs
the imposition and revocation of supervised release, under the Diggles
framework the court was required to orally pronounce it at his revocation
hearing. We disagree.
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No. 20-40210
Brown cites unpublished opinions from this circuit to argue that
criminal monetary penalties, including special assessments and restitution,
must be explicitly reimposed at the revocation stage or they disappear. But
these unpublished summary opinions are not binding, nor are they
persuasive 1. See United States v. Rodriguez-Albir, 612 F. App’x 783, 784 (5th
Cir. 2015) (unpublished); see also United States v. Bernardez-Avila, 609 F.
App’x 228, 229 (5th Cir. 2015) (unpublished); United States v. Gil-Perez, 605
F. App’x 439, 439 (5th Cir. 2015) (unpublished); United States v. Orduna-
Perales, 530 F. App’x 355, 356 (5th Cir. 2013) (unpublished)). A revocation
sentence does not supplant a defendant’s original final sentence; it is treated
as part of the original sentence. See United States v. Haymond, 139 S. Ct. 2369,
2379-80 (2019) (plurality opinion) (“[A]n accused’s final sentence includes
any supervised release sentence he may receive . . .. [S]upervised release
punishments arise from and are ‘treat[ed] . . . as part of the penalty for the
initial offense.’”) (quoting Johnson v. United States, 529 U.S. 694 (2000).
This is further enforced by this court’s precedents that a defendant “may not
use an appeal of [his] supervised release to attack [his] original sentence[.]”
United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005). To allow Brown
to challenge the $100 special assessment upon appeal of the conditions of his
supervised release after revocation would be to allow just that. This would
also conflict with the clear Congressional emphasis on the finality of
judgments. See 18 U.S.C. § 3582(b) (““Notwithstanding the fact that a
sentence to imprisonment can subsequently be” “appealed,” “modified,”
and “corrected,” “a judgment of conviction that includes such a sentence
1
Additionally, these unpublished cases are distinguishable on the ground that in
each of them the Government conceded that a conflict existed between the oral and written
sentences with regard to the $100 special assessment. See Rodriguez-Albir, 612 F. App’x at
784; Gil-Perez, 605 F. App’x at 439; Bernardez-Avila, 609 F. App’x at 229; Orduna-Perales,
530 F. App’x at 356.
4
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constitutes a final judgment for all other purposes.”).It is thus irrelevant that
the $100 special assessment is not mandatory under 18 U.S.C. § 3583; it had
already been imposed as part of the final judgment against Brown and need
not have been reimposed at Brown’s revocation hearing.
B.
Brown also argues that there is a conflict as to the amount of
restitution he is obligated to make. Unlike the special assessment, the
requirement to pay restitution is a mandatory condition of supervised release.
18 U.S.C. § 3583(d). But there is a distinction between a restitution penalty
itself and a condition of supervised release to pay that restitution. A
restitution penalty imposed as part of an original judgment remains
unmodified by any supervised release conditions imposed upon revocation
for the same reasons that pertain to the $100 special assessment. Here,
Brown was originally ordered to pay a restitution penalty of $31,800, and
payment of that penalty was a special condition of his original term of
supervised release. Upon revocation, the district court orally pronounced
the requirement to pay restitution in the amount of $24,869.11. However, it
is unclear whether this pronouncement was intended to modify the amount
of the original restitution penalty to $24,869.11, or to apply a new special
condition to pay restitution in that amount to his second term of supervised
release. The written revocation judgment is also unclear, as it includes both
$24,869.11 and $31,800 under different headers. We thus vacate the
revocation judgment’s restitution order and remand this issue for
clarification by the district court. See United States v. Juarez, 812 F.3d 432,
437 (5th Cir. 2016) (remanding for resentencing when review of the record
did not resolve ambiguity); accord United States v. Garcia, 604 F.3d 186, 191
(2010).
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No. 20-40210
C.
Of the nine special conditions of supervised release in the written
judgment following revocation, Brown asserts that six were neither orally
pronounced by the court at his revocation hearing nor required by statute:
viz., (1) that he provide the probation officer with access to requested
financial information to monitor payments and employment; (2) that he not
incur new credit charges or open lines of credit without approval of the
probation officer until any financial obligations have been paid in full; (3) that
he not participate in any form of gambling until any financial obligations have
been paid in full; (4) that he not purchase, possess, or use psychoactive
substances; (5) that he participate in a program of testing and treatment for
drug abuse, and pay any cost associated with drug testing and treatment; and
(6) that he participate in mental health treatment programs, take prescribed
medications, and pay costs associated with mental health treatment and
testing. The Government concedes that these six conditions were
discretionary, that the district court was required to orally announced them,
and that it did not. Because the government has thus waived any argument
to the contrary, without addressing the underlying merits of Brown’s claims
as to this issue, we agree that these six conditions constitute a conflict
between the oral pronouncement and the written judgment and must be
excised from the revocation judgment.
D.
Finally, while unraised by the parties, this court takes sua sponte
judicial notice that the term of supervised release to which Brown was
sentenced upon revocation exceeds the statutory maximum. See United
States v. Broussard, 669 F.3d 537, 552 & n.10 (5th Cir. 2012) (noting that
appellate courts may take judicial notice of errors which are obvious or
seriously affect the fairness and integrity of judicial proceedings). Brown’s
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offense of conviction is a Class C felony and hence carries a statutory
maximum supervised release term of three years (thirty-six months). 18
U.S.C. §§ 1343, 1349; 18 U.S.C. § 3559(a)(3); 18 U.S.C. § 3583(b)(2). The
maximum term of supervised release that may be imposed following the term
of imprisonment is the statutory maximum term of supervised release
applicable to Brown’s underlying offense minus any term of imprisonment
imposed upon revocation. 18 U.S.C. § 3583(h). Because the district court
sentenced Brown to a fourteen-month term of imprisonment upon
revocation, the maximum term of supervised release that could be imposed
thereafter was thus twenty-two months. However, the district court
sentenced Brown to a twenty-four-month term of supervised release. Thus,
the length of the term of supervised release constitutes an illegal sentence
and must be corrected. See United States v. Vera, 542 F.3d 457, 459 (5th Cir.
2008).
III.
For the foregoing reasons we AFFIRM Brown’s sentence in part,
VACATE in part and REMAND for resentencing not inconsistent with
this opinion.
7