United States v. Casas ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20134
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO A. CASAS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CR-673-1)
_________________________________________________________________
November 12, 2002
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
This appeal by Pablo A. Casas is from a judgment revoking his
supervised release and re-sentencing him. Primarily at issue are
whether the district court reversibly erred: (1) by including, in
its written judgment of conviction and sentence, special conditions
of supervised release different from those orally pronounced at
sentencing; and (2) by delegating to Casas’ probation officer the
authority to set the amount and timing of payments for court-
*
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this opinion should not be published and is not precedent except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.
ordered “drug/alcohol detection and treatment” and electronic
monitoring services. VACATED AND REMANDED.
I.
After Casas pleaded guilty in the United States District Court
for the Central District of Illinois (Illinois district court) to
knowingly possessing, with intent to distribute, 1000 kilograms or
more of a mixture or substance containing marijuana, he was
sentenced in March 1996 to 84 months’ imprisonment and a five-year
term of supervised release. His term of imprisonment was reduced
to 46 months following the Government’s motion under FED. R. CRIM.
P. 35(b).
Casas was released from prison in January 1999 and began his
term of supervised release. In August 2000, the Illinois district
court revoked Casas’ supervised release because of his possession
and use of a controlled substance. He was sentenced to 12 months’
imprisonment and a three-year term of supervised release. That
second term of supervised release began in May 2001, following his
second release from prison.
That August, jurisdiction over Casas’ supervised release was
transferred to the United States District Court for the Southern
District of Texas (Texas district court). That September, the
probation office for that district filed a petition to revoke
Casas’ supervised release. He pleaded “true” to the allegations
made by the probation office. The Texas district court revoked
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Casas’ supervised release and sentenced him to 12 months’
imprisonment and to a supervised release term of three years.
II.
Casas contends: the Texas district court reversibly erred in
imposing certain special conditions of supervised release; and the
statute under which he was originally convicted, 21 U.S.C. § 841,
is facially unconstitutional in the light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).
A.
For the challenged special conditions, Casas contests: terms
in the written judgment different from those orally pronounced at
sentencing; and, the district court’s delegating to the probation
office the authority to set the amount and timing of payments for
court-ordered drug/alcohol detection and treatment and electronic
monitoring related to home detention.
The imposition of special conditions for supervised release is
reviewed for an abuse of discretion. E.g., United States v.
Warden, 291 F.3d 363, 364, 365 n.1 (5th Cir. 2002); United States
v. Bird, 124 F.3d 667, 684 (5th Cir. 1997), cert. denied, 523 U.S.
1006 (1998). (Casas’ objection was raised for the first time on
appeal because he had no opportunity to object to new special
conditions imposed by the written judgment. Thus, we review under
the usual abuse of discretion standard. See Warden, 291 F.3d at365 n.1). A district court abuses its discretion if it bases its
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decision on “an error of law or a clearly erroneous assessment of
the evidence”. United States v. Mann, 161 F.3d 840, 860 (5th Cir.
1998), cert. denied, 526 U.S. 1117 (1999).
1.
Casas contends that, because certain special conditions in the
written judgment differ from those orally pronounced at sentencing,
the written judgment must be revised to conform to the conditions
orally imposed.
At the sentencing hearing, the Texas district judge stated
that Casas would be sentenced to supervised release “on the same
conditions as [imposed by the Illinois district court and]
contained in the initial supervised release form together with any
additional matters that will be in the final judgment of
revocation....” The district judge then stated that additional
conditions of Casas’ supervised release would, inter alia, “include
home confinement with electronic monitoring for one year following
his release [and] drug treatment which will be required”.
In addition to ordering drug treatment and home confinement,
the written judgment provides:
The defendant shall further submit to drug
detection techniques in addition to those
performed by the treatment agency, as directed
by the probation officer. The defendant will
incur costs associated with such drug/alcohol
detection and treatment, based on ability to
pay as determined by the probation officer.
...
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If electronic monitoring is used, the
defendant will incur costs associated with
such monitoring, based on ability to pay as
determined by the probation officer.
(Emphasis added.)
Casas concedes that certain portions of the written judgment’s
special conditions of supervision “arguably embody” the orally-
pronounced condition of drug treatment. On the other hand, he
claims that the written judgment impermissibly expands upon the
oral pronouncement by requiring: (a) submission to drug detection
techniques, as directed by the probation officer; and (b) payment
of costs associated with drug/alcohol detection and electronic
monitoring, as determined by the probation officer.
a.
For the claimed variation concerning the additional drug
testing, Casas contends the issue is governed by United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (“In this circuit, it
is well settled law that where there is any variation between the
oral and written pronouncements of sentence, the oral sentence
prevails.”).
In Martinez, the district court orally imposed imprisonment,
supervised release, and 100 hours of community service. Id. at
941-42. The written judgment, however, also required participation
in a drug/alcohol program. See Id. at 942. Martinez held that the
oral pronouncement and written judgment were in conflict because,
at sentencing, the district court did not include mandatory drug
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treatment as a special condition of supervised release; the case
was remanded for the district court to amend the judgment. See id.The Government contends the facts at hand can be distinguished
from those in Martinez. It asserts that, here, the written
judgment does not impose a new condition because, in its oral
pronouncement, the Texas district court incorporated the conditions
of Casas’ original supervised release, as imposed by the Illinois
district court.
That initial judgment provides that, as a special condition of
supervision, Casas “shall participate in a program for substance
abuse treatment/counseling including testing to determine whether
[he has] used controlled substances and/or alcohol, under a plan to
be established by the U.S. Probation Office” (treatment/counseling
provision). (Emphasis added.) That initial judgment also requires
Casas to “submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as
directed by the probation officer” (testing provision).
The Government contends: the Illinois district court’s
treatment/counseling provision does not explicitly refer to testing
by a treatment agency, but instead calls for participation in a
“program” including testing under a “plan to be established by the
U.S. Probation Office”; thus, the provision allows testing at the
discretion of the probation officer. Contrary to the Government’s
contention, however, that treatment/counseling provision apparently
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refers to testing in connection with a treatment and counseling
agency’s program. Further, although the Illinois district court’s
testing provision allows the probation officer to require
additional drug testing, it specifies the timing of tests and
minimum number to be performed.
Considering the original testing provision, its adoption by
the Texas district court, and that court’s written judgment, the
judgment creates a minor conflict between the oral pronouncement
and judgment with respect to such testing. It is clear that, like
the Illinois district court, the Texas district court intended,
through its written judgment, that Casas be required to submit to
drug tests in addition to those performed by the treatment agency,
at the direction of the probation officer. The Illinois district
court, however, imposed more specific requirements for drug testing
at the direction of the probation officer: one test in the first
15 days; and, at least two tests thereafter.
Because the Texas district court’s written judgment places no
limits on the probation officer’s discretion to require more than
one test within the first 15 days, the judgment allows testing
beyond that prescribed by the Illinois district court’s testing
provision. In addition, unlike the Illinois district court’s
testing provision, the written judgment does not require at least
two tests after the first 15-day period.
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To the extent there is conflict between the oral pronouncement
and written judgment, the former controls. Martinez, 250 F.3d at
942. In sum, the written judgment must be conformed to the oral
pronouncement, including the incorporated special conditions on
testing imposed by the Illinois district court.
b.
Casas also contends that the Texas district court’s written
judgment differs from its oral pronouncement to the extent the
former imposes payment requirements. Again, the judgment requires
Casas to pay for costs associated with drug/alcohol detection and
treatment and with electronic monitoring.
Casas’ contention is precluded by Martinez, as applied by
Warden, 291 F.3d at 363. Warden applied the rule of Martinez under
facts closely analogous to the case at hand. The district judge in
Warden orally pronounced that the defendant was required to undergo
various forms of treatment and counseling as conditions of his
supervised release. Id. at 364. In the written judgment, the
district court added a requirement that Warden incur costs
associated with the treatment and counseling “based on ability to
pay as determined by the probation officer”. Id. Warden contended
that the district court committed reversible error by adding the
payment condition. Id. at 365.
Our court determined that the difference between the oral
pronouncement and written judgment “create[d], if anything, an
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ambiguity”. Id. Because there was ambiguity, “the entire record
[had to] be examined to determine the district court’s true
intent”. Martinez, 250 F.3d at 942. Looking to the intent of the
sentencing court, Warden determined that “the requirement that
Warden bear the costs of the ordered treatments is clearly
consistent with the district court’s intent that he attend [the
ordered treatment and counseling], as evidenced in the statements
made by the court at the sentencing hearing”. Warden, 291 F.3d at
365.
Similarly, as a condition of Casas’ supervised release, the
district court orally required Casas to undergo drug/alcohol
treatment and monitoring and to submit to home detention with
electronic monitoring. The written judgment specifying that Casas
incur costs associated with these special conditions is consistent
with the district court’s intent in imposing them. In this regard,
Casas has not shown an abuse of discretion.
2.
Alternatively, Casas contends the district court impermissibly
delegated to the probation office the task of setting the amount
and timing of payments. Casas bases this on 18 U.S.C. § 3672,
which provides in relevant part:
Whenever the court finds that funds are
available for payment by or on behalf of a
person furnished such services, training, or
guidance, the court may direct that such funds
be paid to the Director. Any moneys collected
under this paragraph shall be used to
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reimburse the appropriations obligated and
disbursed in payment for such services,
training, or guidance.
Casas maintains that, because § 3672 refers to “the court”, it
contemplates a judicial, not a probation officer’s, finding and
order concerning a defendant’s ability to pay. Section 3672 simply
establishes the powers and duties of the Director of the
Administrative Office of the United States Courts and is permissive
rather than mandatory. It does not require judicial determinations
of ability to pay, nor does it prevent the district court from
delegating such determinations to probation officers.
Casas also relies on United States v. Albro, 32 F.3d 173, 174
(5th Cir. 1994), which held that a determination of restitution
payments is a judicial function that cannot be delegated to a
probation officer.
Casas’ assertion is foreclosed by Warden, 291 F.3d at 365-66,
which rejected an argument that the district court “impermissibly
delegated its authority to the probation officer to determine [the
defendant’s] ‘ability to pay’ the costs of ... treatments”. Warden
noted that the authority of the probation officer was limited to a
determination of Warden’s ability to pay, “a factfinding
determination made by probation officers in other contexts”. Id.
at 366. Warden distinguished Albro because it involved restitution
payments, not drug treatment costs. See id. Similarly, the
probation officer’s discretion in the case at hand is limited to
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determining ability to pay, and this case deals with drug treatment
costs, not restitution.
B.
Although Casas’ notice of appeal states he is appealing the
revocation judgment and sentence, he also challenges the validity
of his underlying conviction and sentence. As was done in Warden,
291 F.3d at 366, this challenge is premised on the notion that the
statute of conviction, 21 U.S.C. § 841, is facially
unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.
466 (2000) (facts that increase penalty beyond statutory minimum
must be submitted to jury and proved beyond a reasonable doubt).
A threshold issue, however, is whether, in a revocation
proceeding, Casas may challenge his underlying conviction and
sentence. This question was left open in United States v. Teran,
98 F.3d 831, 833 n.1 (5th Cir. 1996).
Assuming arguendo Casas can now challenge the validity of his
underlying conviction, his challenge fails. Casas claims that 21
U.S.C. § 841 is facially unconstitutional under Apprendi because
the statute, consistent with the intent of Congress, treats drug
type and quantity as sentencing factors. On the other hand, and as
was done in Warden, 291 F.3d at 366, Casas concedes that his claim
is foreclosed in this circuit by United States v. Slaughter, 238
F.3d 580, 582 (5th Cir.) (“We see nothing in the Supreme Court
decision in Apprendi which would permit us to conclude that 21
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U.S.C. §§ 841(a) and (b), 846, and 860(a) are unconstitutional on
their face.”), cert. denied, 532 U.S. 1045 (2001). He seeks only
to preserve the issue for further review.
III.
For the foregoing reasons, the judgment is VACATED and this
case is REMANDED to the district court for it to amend its written
judgment to conform to its oral pronouncement of sentence.
VACATED AND REMANDED
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