United States v. Jon Johnson ( 2019 )

Case: 18-51027 Document: 00515128997 Page: 1 Date Filed: 09/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-51027 September 23, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JON MARK JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CR-268-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
Jon Mark Johnson pleaded guilty to the possession of visual depictions
of sexual activities by minors. On appeal, he challenges the imposition of two
conditions of supervised release: a standard condition and a special condition.
First, Johnson challenges a standard condition that states, in pertinent
part: “If the probation officer determines that the defendant poses a risk to
another person (including an organization), the probation officer may require
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-51027 Document: 00515128997 Page: 2 Date Filed: 09/23/2019
No. 18-51027
the defendant to notify the person about the risk and the defendant shall
comply with that instruction.” Johnson argues that the district court plainly
erred by ordering this condition without explaining how it is reasonably related
or narrowly tailored to the factors listed in 18 U.S.C. § 3583(d). Additionally,
he argues that the condition impermissibly delegates authority to the
probation officer.
Contrary to the Government’s contention, Johnson’s claims are ripe for
review because, as to his first argument, the purported injury (the district
court’s inadequate explanation) has already occurred. See United States v.
Magana, 837 F.3d 457, 459 (5th Cir. 2016). His improper delegation claim is
likewise ripe. See United States v. Morin, 832 F.3d 513, 515-16 (5th Cir. 2016).
Nonetheless, because we have not yet addressed whether a district court must
explain its reasons for imposing standard conditions of release or whether the
instant notification condition constitutes an improper delegation of judicial
authority, Johnson has shown no clear or obvious error. See United States v.
Cabello, 916 F.3d 543, 544 (5th Cir. 2019); United States v. Bishop, 603 F.3d
279, 281 & n.7 (5th Cir. 2010).
Johnson next challenges a special condition of release that prohibits him
from having direct contact with children under the age of 18. Although the
district court’s oral pronouncement excluded Johnson’s own children from this
prohibition, the written judgment contains a typographical error, stating as
follows: “The defendant shall not have direct contact with any child the
defendant knows or reasonably should know to be under the age of 18,
[including][not including] his/her own children, without the permission of the
probation officer.” The error is repeated in the next sentence of the condition.
Johnson argues that the district court’s oral pronouncement controls.
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Case: 18-51027 Document: 00515128997 Page: 3 Date Filed: 09/23/2019
No. 18-51027
Again, contrary to the Government’s contention, Johnson’s challenge to
the discrepancy between the district court’s oral pronouncement of sentence
and the written judgment is ripe for review because the injury, an infringement
on Johnson’s constitutional right to be present at sentencing, has already
occurred. See Magana, 837 F.3d at 459; United States v. Torres-Aguilar, 352
F.3d 934, 935 (5th Cir. 2003). Johnson is correct that the oral pronouncement
controls. See Torres-Aguilar, 352 F.3d at 935.
Accordingly, we REMAND for the limited purpose of correcting the two
above-mentioned errors in the judgment. See FED. R. CRIM. P. 36; United
States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979). We otherwise AFFIRM.
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