United States v. Tatum ( 2023 )

Case: 22-40476 Document: 00516640235 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 9, 2023
No. 22-40476 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Douglas Wayne Tatum,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-1661-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Douglas Wayne Tatum appeals the sentence imposed following his
guilty plea conviction of conspiracy to import 500 grams or more of
methamphetamine. He argues that a conflict exists between the written
judgment and the oral pronouncement of his supervised release conditions,
specifically with certain discretionary standard and special conditions in the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40476
written judgment that were not orally pronounced at sentencing. These
conditions were not mandated by 18 U.S.C. § 3583(d), so the district court
was required to pronounce them. See United States v. Diggles, 957 F.3d 551,
559 (5th Cir. 2020) (en banc).
Regarding Tatum’s challenge to 14 of the 15 “standard” conditions,
the conditions were listed in the appendix to his presentence report
(PSR), and they are also set forth in a standing order of the Southern District
of Texas. At sentencing, the district court affirmed with Tatum that he
reviewed the PSR with his counsel, and it ordered Tatum to “comply with
the standard conditions adopted by the Court.” The district court’s
pronouncement constituted a shorthand reference effectively adopting the
district court’s standing order that contained those conditions. See United
States v. Vargas, 23 F.4th 526, 528 (5th Cir. 2022); United States v. Grogan,
977 F.3d 348, 353 (5th Cir. 2020). Tatum cannot show that the district court
erred, plainly or otherwise, because the court fulfilled its pronouncement
requirement for the standard conditions, and there is no conflict with the
written judgment. See Vargas, 23 F.4th at 528-29; Diggles, 957 F.3d at 559-
60.
Tatum next challenges certain “special” conditions included in his
written judgment. The special conditions require Tatum to 1) “participate
in an outpatient alcohol and substance-abuse treatment program” and “pay
the costs of the program, if financially able”; 2) “not possess any controlled
substances without a valid prescription”; 3) “submit to substance-abuse
testing” and “pay the costs of the testing if financially able”; 4) “not use or
possess alcohol”; and 5) “not knowingly purchase, possess, distribute,
administer, or otherwise use any psychoactive substances.” He does not
challenge the first special condition.
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These conditions are listed in the district court’s standing order as
conditions that a sentencing judge “may apply” to a defendant at sentencing,
and Tatum’s PSR recommended the conditions in the appendix. However,
while the district court affirmed that Tatum and his counsel reviewed the
PSR, the district court did not expressly adopt the PSR or reference or
address any of the special conditions challenged here. Accordingly, our
review is for an abuse of discretion. See United States v. Gomez, 960 F.3d 173,
179 (5th Cir. 2020).
The second and third special conditions do not conflict with the
district court’s pronouncement because they are consistent with the
mandatory conditions imposed and with the district court’s intent that
Tatum obtain drug and alcohol treatment. See United States v. Vasquez-
Puente, 922 F.3d 700, 703 (5th Cir. 2019); United States v. Mireles, 471 F.3d
551, 558 (5th Cir. 2006). Tatum was already prohibited under § 3583(d) from
unlawfully possessing a controlled substance. See also Tex. Health
& Safety Code § 481.117 (criminalizing possession of controlled
substances without a prescription). He was also required under § 3583(d) to
submit to periodic drug testing, and the district court orally pronounced that
Tatum was required “to participate in a drug and alcohol treatment program
outpatient” while on supervised release. Therefore, the drug testing
condition and the requirement to pay for testing do not conflict with the oral
pronouncement of sentence. See Mireles, 471 F.3d at 558; United States v.
Vega, 332 F.3d 849, 852-54 (5th Cir. 2003); United States v. Warden, 291 F.3d
363, 365 (5th Cir. 2002).
The fourth and fifth special conditions likewise do not create a conflict
between the oral pronouncement and written judgment. See Mireles, 471 F.3d
at 558. Where, as here, a district court orally pronounces a release condition
requiring a defendant to take part in drug treatment, other unpronounced
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conditions that are consistent with that condition do not create a conflict
between the oral and written judgments. See Vega, 332 F.3d at 852.
AFFIRMED.
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