U.S. v. Bigelow

Decision Date23 August 2006
Docket NumberNo. 05-20539.,05-20539.
Citation462 F.3d 378
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wade Hampton BIGELOW, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Kathlyn Giannaula Snyder (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S Marjorie A. Meyers, Fed. Pub. Def., Michael L. Herman (argued), Philip G. Gallagher, Houston, TX, for Bigelow.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Wade Hampton Bigelow does not challenge his conviction in the United States District Court for the Southern District of Texas. At issue is only whether the following special conditions for his supervised release in the written judgment conflict with the oral pronouncements at his sentencing: (1) participating in drug-treatment and mental-health programs; and (2) receiving approval from a probation officer before obtaining any form of identification. CONVICTION AFFIRMED; SENTENCE VACATED IN PART; REMANDED.

I.

In February 2005, Bigelow pleaded guilty to knowingly making a false statement in an application for a passport by using a false name, and falsely representing a Social Security number to be his own with the intent to deceive the State Department in order to receive a passport. Pursuant to a May 2005 sentencing hearing, he was sentenced, inter alia, to 15 months imprisonment and 36 months supervised release.

In addition to the standard conditions of supervised release, the June 2005 written judgment imposed the following special conditions:

The defendant is required to participate in a mental health program as deemed necessary and approved by the probation officer. The defendant will incur costs associated with such program, based on ability to pay as determined by the probation officer.

The defendant shall participate in a program, inpatient or outpatient, for the treatment of drug and/or alcohol addiction, dependency or abuse which may include, but not be limited to urine, breath, saliva and skin testing to determine whether the defendant has reverted to the use of drugs and/or alcohol. Further, the defendant shall participate as instructed and as deemed necessary by the probation officer and shall comply with all rules and regulations of the treatment agency until discharged by the Program Director with the approval of the probation officer. 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.

The defendant shall not obtain any form of identification without the prior approval of the United States Probation Officer.

(Emphasis added.)

At Bigelow's earlier sentencing hearing, however, the only special condition of supervised release imposed orally by the district court was Bigelow's being required to "tell the probation officer of every bank account, credit card account, every driver's license, every certificate of any kind that you apply for or get . . . [b]ecause you might lapse back into the same thing. Plus all the other terms and conditions". (Emphasis added.)

II.

"[A] defendant has a constitutional right to be present at sentencing". United States v. Vega, 332 F.3d 849, 852 (5th Cir.2003); see FED.R.CRIM.P. 43(a)(3) (requiring "the defendant ... be present at ... sentencing"). "Th[is] constitutional right ... is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but ... is [also] protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him". United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (internal citation omitted).

Therefore, if the written judgment conflicts with the sentence pronounced at sentencing, that pronouncement controls. United States v. Martinez, 250 F.3d 941, 942 (5th Cir.2001). If, however, the difference between the two is only an ambiguity, we look to the sentencing court's intent to determine the sentence. United States v. Warden, 291 F.3d 363, 365 (5th Cir.), cert. denied, 537 U.S. 935, 123 S.Ct. 35, 154 L.Ed.2d 236 (2002).

This issue is being raised for the first time on appeal, for the simple reason that Bigelow had no opportunity at sentencing to consider, comment on, or object to the special conditions later included in the written judgment. Accordingly, instead of reviewing for plain error, we "review the ... court's imposition of [those] conditions for an abuse of discretion". Id. at 365 n. 1; see also United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.2003).

A.

Concerning the district court's failure to state at sentencing that Bigelow was required to participate in drug-treatment and mental-health programs, Bigelow relies primarily on our decision in Martinez, 250 F.3d at 942. It required the district court to eliminate participation in a drug-treatment program as a supervised-release condition because it had not been stated during the oral sentencing. Id. He also notes drug-treatment and mental-health programs are listed as "special" conditions under Sentencing Guideline § 5D1.3(d).

Bigelow's claim is consistent with the following language from Torres-Aguilar: because the court "fail[ed] to mention a special condition at sentencing, its subsequent inclusion in the written judgment creates a conflict that requires amendment of the written judgment to conform with the oral pronouncement". 352 F.3d at 936 (internal quotation omitted; emphasis in original) (noting, however, "that explicit reference to each and every standard condition of supervision is not essential to the defendant's right to be present at sentencing" (internal quotation omitted; emphasis added)). Relying on Torres-Aguilar's holding, the Government counters that, where clearly warranted, a § 5D1.3(d) "special condition" is as standard as those in § 5D1.3(c) (standard conditions of supervised release). Id. at 938.

In Torres-Aguilar, it was undisputed that defendant had pleaded guilty to the felony of illegally reentering the United States after having been previously deported. Id. at 937. Accordingly, although not pronounced at sentencing, the written judgment imposed the special condition recommended by § 5D1.3(d)(1): "If the instant conviction is for a felony ... [impose] a condition prohibiting the defendant from possessing a firearm or other dangerous weapon". U.S.S.G. § 5D1.3(d)(1). Our court held: "[B]ecause the Sentencing Guidelines recommend that all defendants who have been convicted of a felony be prohibited from possessing any `dangerous weapon' during the term of supervised release, ... this condition ... was standard and did not conflict with the district court's oral pronouncement of sentence". Torres-Aguilar, 352 F.3d at 938 (emphasis added).

Furthermore, our court noted its holding was reinforced by the Southern District of Texas' adoption of written-judgment form AO 245B, which contains the mandatory and standard conditions of supervised release for that district: "Importantly, the district court used form AO 245B in the instant case, and the prohibition against [defendant's] possession of `a dangerous weapon' is one of the conditions appearing on the form". Id. at 938 n. 3 (emphasis added).

Bigelow was convicted in the Southern District of Texas and the same judgment form was used. In Torres-Aguilar, however, the basis for imposing a prohibition against possessing a dangerous weapon was undisputed and based on objective facts easily determined from the record — whether defendant had previously been convicted of a felony. Id. at 937. Here, the facts supporting imposition of the drug-treatment and mental-health programs are much more subjective (i.e, "[i]f the court has reason to believe that [Bigelow] is an abuser of narcotics" or "is in need of psychological or psychiatric treatment"). U.S.S.G. § 5D1.3(d)(4),(5).

Although the record contains evidence that Bigelow had abused drugs in the past, he stated at his rearraignment in February 2005 that he had not used them in "[s]everal years". Also at rearraignment, his attorney noted: although Bigelow had "a long history of psychological problems", including depression and possible personality disorders, he was not then suffering such conditions. Along that line, Bigelow acknowledged at sentencing he had medical problems and was not being medicated properly at the time he committed the crime for which he was being sentenced. Thus, unlike in Torres-Aguilar, factors supporting imposition of the special conditions for drug-treatment and mental-health programs were not so clear as to transform these special, into standard, conditions.

In this regard, although Bigelow participated at his sentencing, he was unable to effectuate his constitutional right to be effectively present because he did not receive sufficient notice that these two special conditions would be imposed in the written judgment. As noted, by not knowing at sentencing these special conditions would be imposed later in the written judgment, Bigelow was unable to object or provide evidence why those conditions were not warranted. See Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (stating "a defendant has a due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge" (internal citation omitted)).

Furthermore, as discussed, Bigelow was sentenced in the Southern District of Texas, which uses judgment form AO 245B. Unlike the prohibition against possessing a dangerous weapon imposed in Torres-Aguilar, neither the drug-treatment nor mental-health programs are included as either mandatory or standard...

To continue reading

Request your trial
127 cases
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 11, 2011
    ...v. DeMott, 513 F.3d 55, 58 (2d Cir.2008); United States v. Sepulveda–Contreras, 466 F.3d 166, 169 (1st Cir.2006); United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.2006); United States v. Agostino, 132 F.3d 1183, 1199 n. 7 (7th Cir.1997). Three different courts of appeal have addressed w......
  • United States v. McGinnis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 21, 2020
    ...the Sixth Amendment and the Due Process Clause. See United States v. Morin , 832 F.3d 513, 519 (5th Cir. 2016) ; United States v. Bigelow , 462 F.3d 378, 381 (5th Cir. 2006). "[W]hen there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls." ......
  • United States v. Yarbrough
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 30, 2017
    ...to the probation officer.DISCUSSION "[A] defendant has a constitutional right to be present at sentencing." United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006) (alteration in original); see also Fed. R. Crim. P. 43. Where there is a conflict between the written judgment and the oral......
  • United States v. Tang
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 16, 2013
    ...time of sentencing (as it had not yet been pronounced), we review for abuse of discretion rather than plain error. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.2006). In Bigelow, we held where there is a conflict between the oral pronouncement and the written judgment, the oral pron......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT