Filed: Oct. 08, 2020
Latest Update: Oct. 08, 2020
Summary: Case: 19-20520 Document: 00515594694 Page: 1 Date Filed: 10/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 8, 2020 No. 19-20520 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alton Joseph Thomas, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CR-676-1 Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges. Per Curiam:* A
Summary: Case: 19-20520 Document: 00515594694 Page: 1 Date Filed: 10/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 8, 2020 No. 19-20520 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alton Joseph Thomas, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CR-676-1 Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges. Per Curiam:* Al..
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Case: 19-20520 Document: 00515594694 Page: 1 Date Filed: 10/08/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 8, 2020
No. 19-20520
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alton Joseph Thomas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-676-1
Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.
Per Curiam:*
Alton Joseph Thomas appeals a discretionary condition of supervised
release in his written judgment, arguing that it conflicts with the district
court’s oral pronouncement of his sentence. Because any discrepancy
between the written judgment and oral pronouncement is a reconcilable
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-20520
ambiguity, not a conflict, the district court did not abuse its discretion, and
we AFFIRM.
I
Thomas pleaded guilty to one count of being a felon in possession of a
firearm. When arrested, he was on deferred adjudication probation for a
felony family violence assault. Thomas also has an extensive criminal history,
spanning twenty convictions over an eighteen-year period. Relevant to this
appeal, many of Thomas’s convictions involved violent behavior toward
women. The underlying offenses include armed robbery, harassment,
violation of protective orders, and assault.
Thomas’s presentence investigation report (PSR) noted this “history
of assaultive behavior.” The PSR also explained that Thomas reported
previous diagnoses of depression and schizophrenia but had not been
prescribed medication for these conditions and was not experiencing active
symptoms. Finally, the PSR recommended several supervised–release
conditions related to substance abuse but did not propose mental health
treatment.
During the sentencing hearing, the district court gave Thomas an
opportunity to speak. Thomas described his criminal record as “just an
indication of [his] growth and the issues that [he] had to deal with,”
attributing several prior convictions to “[i]mproper thinking” and a faulty
“thinking process.” Addressing Thomas’s frequent convictions, the court
opined, “I think the problem is you like the life of being a tough guy and doing
what you want when you want.” Thomas disputed this assessment, stating
that he “had issues, you know, trauma” and had “been through mental
health.” Thomas further explained that he had “been through a lot at a early
age.” The court asked when Thomas, then thirty-eight, had “quit being in
an early age,” and he replied, “When I gathered myself mentally.”
2
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Questioning Thomas about specific offenses, the court noted,
“[Y]ou’ve got these issues that compel you to do things that are illegal. . . .
What issue were you dealing with with the assault on a family member?”
Again, Thomas blamed his “[i]mproper thinking.” When the court
mentioned the violent details of Thomas’s offenses against women, Thomas
once more referred to past “issues” and “trauma” that stunted his personal
“grow[th].” The court replied, “Then turn yourself into [sic] a mental
hospital where they can lock you up until you’ve gotten enough care that you
can cope with your issues without violating the law in violent and recklessly
[sic] means.”
The court sentenced Thomas to sixty-three months’ imprisonment
followed by three years of supervised release. The court asked the probation
officer what supervised–release conditions he recommended, and the officer
repeated the conditions from the PSR—no possession of controlled
substances without a prescription and submission to drug testing. The court
then stated, “Drug tests. First of all, the general condition is that you don’t
violate the law again, like your deferred adjudication, you get drug help, but
most of all you need to get some mental health help.” Thomas responded,
“I’ve been doing it. I’ve been working on myself for years. I’m not in denial
of it, you know.” Explaining its decision, the court proclaimed, “Yeah, you
had issues. You took clubs to people, you robbed places with a shotgun-
wielding co-partner. Your sentence is based on your proven dangerousness;
and with that record of proven impetuosity, anger or whatever it is, your
possession of a firearm is a serious problem for civilization.” The court
further explained, “I’m putting a sentence on you that . . . [reflects] your
attitude that as long as you’re dealing with issues you can do whatever you
want to to people . . . .” At no point during the pronouncement did
Thomas’s counsel object.
3
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The written judgment set forth two special conditions of supervised
release:
You must submit to substance-abuse testing to determine if
you have used a prohibited substance, and you must pay the
costs of testing if financially able. You may not attempt to
obstruct or tamper with the testing methods.
You must participate in a mental-health treatment program
and follow the rules and regulations of that program. The
probation officer, in consultation with the treatment provider,
will supervise your participation in the program, including the
provider, location, modality, duration, and intensity. You must
pay the cost of the program, if financially able.
Thomas timely appealed.
II
Thomas argues on appeal that the written judgment conflicts with the
oral pronouncement by including the second discretionary condition of
supervised release. This condition requires him to obtain mental health
treatment, comply with applicable rules and regulations, and pay costs if
financially able. Thomas asserts that we should vacate the written judgment
and remand the case to the district court with instructions to conform the
judgment to the oral pronouncement by removing this condition.
To respect a defendant’s right to be present for sentencing, the
district court must orally pronounce the sentence. 1 Pronouncement must
include some, but not all, conditions of supervised release. 2 While
“required” conditions need not be pronounced, “discretionary” conditions
1
United States v. Diggles, 957 F.3d 551, 556-57 (5th Cir. 2020).
2
Id. at 557.
4
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must be pronounced to allow for objection. 3 Here, it is undisputed that the
mental health treatment condition is discretionary. The question, then, is
whether the district court pronounced this condition. A discrepancy
between the written judgment and the oral pronouncement occasions the
parties’ disagreement: While the written judgment unequivocally orders
Thomas to “participate in a mental-health treatment program[,] . . . follow
the rules and regulations of that program[, and] pay the cost of the program,
if financially able,” the oral pronouncement merely informed Thomas,
“[T]he general condition is that you don’t violate the law again, like your
deferred adjudication, you get drug help, but most of all you need to get some
mental health help.”
III
Thomas argues we should review for abuse of discretion, while the
government contends plain error review should apply. Because even
applying the more stringent standard of review, the district court did not
abuse its discretion, we need not resolve the applicable standard.
“[T]he key determination is whether the discrepancy between the
[oral pronouncement and the written judgment] is a conflict or merely an
ambiguity that can be resolved by reviewing the rest of the record.” 4 If the
judgment conflicts with the pronouncement, the pronouncement controls, 5
and “the appropriate remedy is remand to the district court to amend the
written judgment to conform to the oral sentence.” 6 “If, however, there is
3
Id. at 559.
4
Sealed Appellee v. Sealed Appellant,
937 F.3d 392, 400 (5th Cir. 2019) (quoting
United States v. Flores, 664 F. App’x 395, 398 (5th Cir. 2016) (per curiam)).
5
See United States v. Rivas-Estrada, 906 F.3d 346, 350 (5th Cir. 2018).
6
United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
5
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‘merely an ambiguity’ between oral and written sentences, ‘then we must
look to the intent of the sentencing court, as evidenced in the record to
determine the defendant’s sentence.’” 7 Thomas asserts a conflict requiring
us to vacate the written judgment and remand for removal of the mental
health treatment condition. The government, however, urges a mere
ambiguity resolved by reviewing the record. We agree with the government.
Unlike ambiguity, conflict occurs when a written judgment “broadens
the restrictions or requirements of supervised release” 8 or “impos[es] a
more burdensome requirement” than the oral pronouncement. 9 Here, the
written judgment does neither. The pronouncement told Thomas that
“most of all, you need to get some mental health help,” while the judgment
required him to (1) participate in a mental health treatment program,
(2) follow its rules and regulations, and (3) pay its costs.
First, while “participat[ing] in a mental-health treatment program” is
undoubtedly more specific than “get[ting] some mental health help,” the
former does not impose “broad[er] . . . restrictions” or “more burdensome
requirement[s]” than the latter. 10 The judgment does not foist a
“heightened burden” on Thomas by curtailing conduct the pronouncement
7
United States v. Vasquez-Puente, 922 F.3d 700, 703 (5th Cir. 2019) (internal
quotation marks omitted) (quoting United States v. Torres-Aguilar,
352 F.3d 934, 935 (5th
Cir. 2003) (per curiam)).
8
Id. (quoting United States v. Mudd,
685 F.3d 473, 480 (5th Cir. 2012)).
9
Sealed Appellee, 937 F.3d at 400 (alteration in original) (quoting United States v.
Bigelow,
462 F.3d 378, 383 (5th Cir. 2006)); see also
Bigelow, 462 F.3d at 383-84 (perceiving
conflict when the pronouncement compelled the defendant to tell his probation officer
about every form of identification he obtained, while the judgment required him to obtain
prior approval before seeking any such document).
10
Sealed Appellee, 937 F.3d at 400.
6
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would allow. 11 Second, the judgment’s requirement that Thomas comply
with “the rules and regulations of the treatment agency is, for obvious
reasons, consistent with the . . . treatment condition ordered at
sentencing.” 12 Third, while the judgment compels payment of associated
costs, this provision does not breed conflict. 13 “[T]he requirement that [the
defendant] bear the costs of the ordered treatments is clearly consistent with
the district court’s intent that he attend [that] treatment.” 14 Thus, instead
of broadening the oral pronouncement, the written judgment simply defines
its scope and clarifies Thomas’s obligations in obtaining “mental health
help.”
Conflict can also arise when the written judgment includes
discretionary conditions wholly unmentioned at sentencing. 15 By contrast,
when the pronouncement explicitly refers to the condition, despite wording
it differently or framing it as a recommendation, no conflict results. 16
11
Bigelow, 462 F.3d at 383.
12
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per curiam) (internal
quotation marks omitted).
13
See United States v. Warden, 291 F.3d 363, 365 (5th Cir. 2002) (no conflict arose
when the pronouncement required drug abuse counseling and the judgment also imposed
costs for the counseling).
14
Id.
15
See, e.g., United States v. Rivas-Estrada,
906 F.3d 346, 348, 351 (5th Cir. 2018)
(identifying conflict when the judgment imposed specific conditions from the PSR while
the pronouncement “merely referenced the PSR” but “never mentioned, even glancingly”
the conditions contained therein); United States v. Morin,
832 F.3d 513, 519 (5th Cir 2016)
(conflict existed when the court “fail[ed] to rule on [the defendant’s] objection to” a
condition from the PSR and was “silen[t]” about the condition during pronouncement, but
then included it in the written judgment).
16
See United States v. Franklin, 838 F.3d 564, 567 (5th Cir. 2016) (discerning no
conflict when the pronouncement “recommend[ed] mental health treatment” while the
7
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Instead, such a reference creates an ambiguity. 17 Here, no conflict occurs
because the pronouncement specifically referred to Thomas’s clear need for
“mental health help.” By mentioning mental health treatment, albeit in
different terms than the written judgment, the pronouncement generated an
ambiguity.
To resolve this ambiguity and determine Thomas’s sentence, “we
must look to the intent of the sentencing court, as evidenced in the record.” 18
In United States v. Vasquez-Puente, for example, the court’s pronouncement
warned that because Vasquez-Puente had previously been deported, he could
not be legally present in the United States. 19 During sentencing, the defense
attorney also explained that he had cautioned his client against reentering the
country, and Vasquez-Puente himself apologized for his illegal presence. 20
The written judgment later required him to, among other things, surrender
to immigration officials and follow their instructions during deportation
proceedings. 21 Discerning only an ambiguity, we upheld the judgment as
consistent with the court’s intent that Vasquez-Puente be deported upon
release from prison. 22 The record revealed that his unlawful presence was a
recurring motif throughout the sentencing hearing. 23 Although “it would
have been better had the district court expressly enumerated the surrender
judgment “required . . . participat[ion] in a mental health program” at the probation
officer’s direction).
17
See id.
18
Warden, 291 F.3d at 365.
19
United States v. Vasquez-Puente, 922 F.3d 700, 702 (5th Cir. 2019).
20
Id. at 705.
21
Id. at 702.
22
Id. at 705.
23
Id.
8
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condition” during pronouncement, verbal imprecision did not amount to an
abuse of discretion. 24
So too here. Thomas’s mental health was a focal point of sentencing,
and the record demonstrates that the written mental health condition, while
not “expressly enumerated,” nonetheless clearly serves “the district court’s
intent” that Thomas obtain treatment. 25 Throughout the hearing, Thomas
attributed his past offenses to “issues,” “trauma,” and “improper
thinking.” At one point, the court pressed Thomas, asking him whether he
had seen a psychiatrist, to which Thomas replied, “I’ve been through mental
health.” When the court expressed concern at Thomas’s violent offenses
against women, Thomas reasserted that he had “been through some
trauma.” The court responded, “Then turn yourself into [sic] a mental
hospital where they can lock you up until you’ve gotten enough care that you
can cope with your issues without violating the law in violent and recklessly
[sic] means.” Shortly thereafter, the court pronounced the sentence,
including Thomas’s pressing need for “mental health help.” Thomas
immediately replied, “I’ve been doing it. I’ve been working on myself for
years. I’m not in denial of it, you know.” Justifying the sentence, the court
explained, “Your sentence is based on your proven dangerousness; and with
that record of proven impetuosity, anger or whatever it is, your possession of
a firearm is a serious problem for civilization.” Later still, the court claimed
the sentence also reflected Thomas’s attitude that “as long as [he was]
dealing with issues[, he could] do whatever [he] want[ed] to to people.” In
short, the theme of Thomas’s mental health recurred throughout the
sentencing hearing. Thomas himself attributed his recidivism to unresolved
24
Id.
25
Id.
9
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emotional trauma. The court, in turn, defended the sentence as necessary to
address these issues and deter further crime. Thus, the district court clearly
intended for Thomas to obtain treatment.
In sum, we discern no conflict between the oral pronouncement and
written judgment. The judgment does not broaden the pronouncement’s
requirements, and the pronouncement explicitly mentioned mental health
“help.” Instead, any discrepancy between the two is an ambiguity resolved
by the court’s clear intent that Thomas undergo treatment. Thus, we
conclude that the district court did not abuse its discretion by including the
contested condition in its written judgment.
* * *
For the foregoing reasons, we AFFIRM.
10
