United States v. Lomas
| Decision Date | 10 February 2016 |
| Docket Number | No. 14-20259,14-20259 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee v. DANIEL LOMAS, III, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Texas
Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
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Daniel Lomas, III, appeals the district court's reimposition of special conditions of supervised release where the written judgment differed from the oral pronouncement at sentencing. Because we conclude that the district court abused its discretion, we VACATE the educational program and mental health conditions of supervised release and REMAND to the district court for proceedings consistent with this opinion.
Daniel Lomas, III, pleaded guilty in 2008 to conspiracy to transport an alien for the purpose of commercial advantage and private financial gain under 8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii), & (v)(I). He was sentenced to twenty-four (24) months imprisonment, to be followed by three years of supervised release. Among the special conditions of supervised release, Lomas was required to participate in a drug treatment program, "required to participate in a mental health program as deemed necessary and approved by the probation officer," and ordered to "enroll and participate in an educational program designed to receive a high school diploma or its equivalency." The term of supervised release began on October 9, 2009.
On March 2012, the United States Probation Office (Probation) petitioned the court to revoke Lomas' supervised release, alleging a law violation from traffic violations, two positive drug tests, and failure to report. In July 2012, Lomas pleaded true to committing the four supervised-release violations. The district court revoked Lomas' supervised release and sentenced him to seven months imprisonment with an additional term of supervised release of twenty nine (29) months. The written judgment omitted the educational condition, but contained the same drug-treatment and mental-health conditions as originally required.
In July 2013, Probation again petitioned the district court regarding a supervised released violation. On September 6, 2013, Lomas pleaded true to one violation for failing to participate as directed in an alcohol and drug treatment program. As Lomas was gainfully employed and had tested clean, the district court removed the drug-treatment requirement, but admonished Lomas to "comply in the future with the requirements" of his supervised release and said "the other terms of supervised release will continue, which will mean you will continue to be tested from time to time." The written ordersaid that the court had "reinstated all previously imposed conditions and waived drug treatment at this time," but did not specify the conditions.
On March 10, 2014, Probation petitioned the court to revoke Lomas' term of supervised release, alleging two law violations of criminal trespass, one positive drug test, and later a superseding allegation of a fourth violation involving an assault. After a hearing in which Lomas' mental health condition was discussed at length, Lomas pleaded true to the positive drug test violation and the court revoked his supervised release. The other alleged violations were dismissed.
The district court sentenced Lomas to a term of imprisonment of eight months, to be followed by a twenty-one (21) month term of supervised release. Specifically, the court said that "the previous condition remained [sic] in effect with respect to drug treatment and help as may be determined appropriate by the probation office, as I have previously required." However, in addition to the orally-imposed drug-treatment condition, the written judgment also included the mental health and educational conditions that were originally imposed - despite the fact that the educational condition was not reimposed in March 2012.
Thereafter, Lomas filed this appeal. On October 27, 2014, counsel filed a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On March 19, 2015, this court denied the motion, identified two potentially nonfrivolous issues for appeal, and ordered counsel to file supplemental briefing. Counsel then filed briefing on the merits.
"[A] defendant has a constitutional right to be present at sentencing." United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006) (internal quotation marks and citation omitted; alteration in original). Where there is a conflict between the written judgment and the oral pronouncement of sentence, theoral pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003); see also United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003). Lomas did not have the opportunity to address the issue when the condition was reimposed. Thus, this court reviews the imposition of special conditions of supervised release for an abuse of discretion. United States v. Fernandez, 776 F.3d 344, 345 (5th Cir. 2015); see also Torres-Aguilar, 352 F.3d at 935.
Lomas asserts that the district court abused its discretion by including the educational program condition in the written judgment because it was not orally pronounced or even mentioned during the sentencing hearing. Further, he asserts that this condition should be struck from the judgment.
The Government asserts that the court should review for plain error. However, the Government offers no persuasive authority to support such a proposition. The Government argues in the alternative that Lomas cannot show that the district court abused its discretion by failing to announce the condition.
This court has held that the inclusion of "mandatory, standard, or recommended" conditions of supervised release in the written judgment, even if the conditions were not orally stated at sentencing, does not create a conflict between the written and oral judgments. Torres-Aguilar, 352 F.3d at 938; see also U.S.S.G. § 5D1.3(d)(1)(5). However, "if the district court fails to mention a special condition at sentencing, its subsequent inclusion in the written judgment creates a conflict that requires amendment of the written judgmentto conform with the oral pronouncement." See Torres-Aguilar, 352 F.3d at 936 (quoting Vega, 332 F.3d at 852-53) (emphasis original). The special condition that Lomas "enroll and participate in an educational program designed to receive a high school diploma or its equivalency" is not a mandatory, standard or recommended condition of supervised release under Section 5D1.3. See U.S.S.G. § 5D1.3(a), (c), (d). This special condition is also not contained in General Order No. H-1996-10 of the United States District Court for the Southern District of Texas (General Order).
This court has not yet specifically addressed in a published opinion whether a defendant's constitutional right to be present at sentencing is violated where he was subject to the condition at issue based upon his initial sentencing but was not orally informed that the condition was reimposed upon revocation of his supervised release. However, this court has held that a district court abused its discretion by including an additional restriction in the written judgment that was not part of the oral pronouncement of sentence. See United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013). This court has also held in an unpublished opinion that a district court abused its discretion by including special conditions in a written judgment that were not orally pronounced on revocation sentencing. See United States v. Babineaux, 493 F. App'x 485, 487-89 (5th Cir. 2012). Further, this court has said that the oral pronouncement controls where "the transcript from the revocation hearing reflects that the district court's reimposition of the special assessment is contrary to the oral pronouncement." United States v. Orduna-Perales, 530 F. App'x 355, 356 (5th Cir. 2013) (); see also United States v. Gil-Perez, 605 F. App'x 439 (5th Cir. 2015).
Additionally, the special condition here was not reimposed in the written judgment following Lomas' 2012 revocation hearing - despite the district court's oral pronouncement that the "[s]pecial conditions of recommenced supervised release will be [sic] same as those that had previously been in effect."
The record reflects that the written judgment includes a special condition that was not orally imposed and could not be clarified by reference to conditions of supervision set forth elsewhere. See Torres-Aguilar, 352 F.3d at 936, 938. While this special condition was imposed in connection with Lomas' original sentence, it was not orally pronounced upon reimposition of supervised release during the 2014 revocation proceeding at issue here. This court has previously concluded that the oral pronouncement controls in such a situation.
For these reasons, we conclude that the district court abused its discretion by including the educational program special condition in the written judgment. Thus, we vacate the educational program condition and remand to the district court to strike the condition from the written judgment.
Lomas also challenges the mental-health special condition on the ground that its wording impermissibly delegates to the probation officer the decision whether he must undergo mental-health treatment. Lomas has made this argument before: in 2008, when he appealed his original sentence, which contained an identically worded mental-health special condition. See United States v. Lomas (Lomas I), 304 F. App'x 300 (5th Cir. 2008). At his 2008...
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