United States v. Gonzalez , 73 F. App'x 666 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 15, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 01-41380
c/w 02-41563
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMAR GONZALEZ,
also known as Lam Gonzalez,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-98-CR-282-3
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Before JONES, STEWART, and DENNIS, Circuit Judges
PER CURIAM:*
Lamar Gonzalez was convicted of one count of aiding and abetting possession with intent
to distribute approximately 152 kilograms of marijuana and sentenced to 46 months in prison and
a three-year term of supervised release. He was twice released to supervised release, and his
supervised release was twice revoked. He now challenges both of the judgments that revoked his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is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 CIR. R. 47.5.4.
supervised release. He argues that the district court’s oral and written judgments are in conflict
because the written judgment contains special conditions of supervised release that were not
mentioned at sentencing. Gonzalez argues that those conditions not mentioned at sentencing
should be deleted from the written judgment. He alternatively contends that the district court
impermissibly delegated to the probation office its authority to determine whether he was able to
contribute to the costs of substance treatment and detection.
This court reviews challenges to special conditions of supervised release in a written
judgment under the abuse of discretion standard. United State v. Warden, 291 F.3d 363, 365 n.1
(5th Cir.), cert. denied, 123 S. Ct. 35 (2002). If there is a discrepancy between the oral sentence
imposed by the district court and a written judgment, the oral sentence controls. United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001). However, if there is merely an ambiguity between
the two, this court examines the entire record to determine the intent of the district court. Id.When, as here, an oral pronouncement requires a defendant to participate in a substance-
abuse treatment program and the written judgment also requires the defendant to pay for the costs
of such treatment, there is no conflict. See Warden, 291 F.3d at 364-65. Furthermore, the
district court lawfully delegated authority to the probation officer to determine Gonzalez’s ability
to pay the costs of such treatment. Id. at 366. Gonzalez’s challenge to that portion of the written
judgment that orders him to submit to additional drug testing, as directed by his probation officer,
is likewise unavailing. See United States v. Vega, 332 F.3d 849 (5th Cir. 2003).
Gonzalez also argues that the underlying statute of conviction, 21 U.S.C. § 841, is facially
unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). It is unclear whether
2
Gonzalez may challenge his underlying conviction in this appeal from the revocations of his
supervised release terms. See United States v. Teran, 98 F.3d 831, 833 n.1 (5th Cir. 1996).
There is no need, however, to decide this issue now. If it is assumed without deciding that
Gonzalez may raise this issue, then he still is not entitled to relief. As Gonzalez concedes, this
court has rejected similar challenges. See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.
2001). This argument is thus unavailing.
The judgments of the district court are AFFIRMED.
3