U.S. v. Warden, 01-40961.

Decision Date14 May 2002
Docket NumberNo. 01-40961.,01-40961.
Citation291 F.3d 363
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffery Lynn WARDEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Mitchel Neurock, Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Timothy William Crooks, Asst. Federal Public Defender, Robert Carlin, Asst. Federal Public Defender, Houston, TX, for Defendant-Appellant.

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

Before DAVIS, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jeffery Lynn Warden appeals his guilty-plea conviction for possession with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Warden argues that the district court committed reversible error by including in its written judgment special conditions of supervised release that were not part of its oral pronouncement of sentence at the sentencing hearing, and also argues that 21 U.S.C. § 841 is unconstitutional in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We disagree.

Warden pleaded guilty to possessing more than 100 kilograms of marijuana and was sentenced to a 76-month term of imprisonment, a five-year term of supervised release, and a $100 mandatory special assessment. At the sentencing hearing, the judge stated that Warden should undergo a sex-offender evaluation and receive counseling, if necessary, because of his history involving crimes against children. The judge then directed the parties to "come up with some language" for an appropriate special condition of supervised release. The district court orally pronounced Warden's sentence in relevant part as follows:

While on supervised release, the Defendant... shall participate in drug abuse counseling as required by the Probation Department, including inpatient or outpatient treatment as required. And ... we already had the earlier discussions of sex offender evaluation and the conditions that flow from it and that are imposed until modified. They are reimposed here now and are part of the sentence. I think the defendant also reflects a certain degree of abusive behavior to other persons, and I want those evaluated as well for anger treatment, how to handle his own behavior.

Eight days later, the court signed the written judgment, which stated in part the following conditions of supervised release:

DRUG TREATMENT: 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 the 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 monitoring, based on ability to pay as determined by the probation officer.

OTHER: The defendant is required to participate in a sex offender evaluation as directed by the probation officer.

SEX OFFENDER COUNSELING: If deemed appropriate by the sex offender evaluation, the defendant is required to participate in sex offender counseling as directed and approved by the probation officer. The defendant will incur costs associated with such programs, based on ability to pay as determined by the probation officer.

OTHER: The defendant is required to participate in an anger management evaluation as directed by the probation officer.

ANGER MANAGEMENT COUNSELING: If deemed appropriate by the anger management evaluation, the defendant is required to participate in anger management counseling as directed and approved by the probation officer. The defendant will incur costs associated with such programs, based on ability to pay as determined by the probation officer.

We review the district court's imposition of special conditions of supervised release for an abuse of discretion. United States v. Bird, 124 F.3d 667, 684 (5th Cir.1997).1

Warden first argues that by imposing new conditions in its written judgment that were not discussed at the sentencing hearing, namely his responsibility to pay for the costs of drug treatment and counseling, sex offender counseling, and anger management counseling, the district court committed reversible error. Alternatively, Warden argues that the district court impermissibly delegated authority to the Probation Department to set the amount of payments for the required treatment and counseling services.

In United States v. Martinez, we held that any conflict between the oral pronouncement of sentence and the written sentence must be resolved in favor of the oral pronouncement. 250 F.3d 941, 942 (5th Cir.2001). Warden contends that when the district court added the requirement that he pay the costs of treatment in the written judgment, the court created a conflict with its oral pronouncement. We disagree. We find the Eleventh Circuit's holding in United States v. Bull persuasive. 214 F.3d 1275 (11th Cir.2000), cert. denied, 531 U.S. 1056, 121 S.Ct. 667, 148 L.Ed.2d 568 (2000). In Bull, the court rejected the defendant's argument that the sentencing court erred by including in its written judgment a requirement for him to contribute to the cost of his mental health treatment imposed as a special condition of his supervised release. Id. at 1279. The court found that there was no conflict between the oral pronouncement, which made no mention of costs, and the written judgment. Id. ("The written order of judgment, imposing the cost of treatment upon Bull, does not conflict with the requirement that he attend treatment."). Cf. United States v. Truscello, 168 F.3d 61, 63 (2d Cir.1999) (finding no conflict between oral sentence imposing supervised release and written judgment articulating the specific conditions of release; "[t]he written judgment simply clarified the meaning of that sentence by specifying what the supervision was to entail").

The difference between the two statements made by the district court in this case creates, if anything, an ambiguity. Thus, we must look to the...

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