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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50624

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

AARON SCOTT ELKINS

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas, Midland

USDC No. 4:07-cr-00197

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Aaron Scott Elkins pleaded guilty to one count of receipt and

possession of child pornography and one count of possession of child

pornography. The district court sentenced him to 135 months of imprisonment

on the former count and 120 months on the latter count, to run concurrently.

The district court also imposed two concurrent ten-year terms of supervised

release. Appellant challenges two special conditions of supervised release

imposed by the district court. Finding that one of the challenged conditions in

United States Court of Appeals

Fifth Circuit

F I L E D

June 29, 2009

Charles R. Fulbruge III

Clerk
No. 08-50624

2

the judgment conflicts with the district court’s oral pronouncement, we STRIKE

that condition and AFFIRM as MODIFIED.

At the sentencing hearing, the district court announced several special

conditions of Elkins’s supervised release. These special conditions were later set

forth in the written judgment. Additionally, the written judgment provided that

Elkins “shall not associate with any child or children under the age of 18 except

in the presence and supervision of an adult specifically designated in writing by

the probation officer.” Elkins contends that the district court erred in imposing

this additional condition because it conflicted with the court’s oral

pronouncement of sentence. This claim is reviewed for abuse of discretion

because the defendant did not have the opportunity to object at sentencing.

United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). This Court has

long recognized that “a defendant has a constitutional right to be present at

sentencing.” United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).

 If a conflict exists between a written sentence and an oral pronouncement, the

oral statement controls. Id. Further, if the difference between the written

judgment and the oral pronouncement simply constitutes an ambiguity, this

Court “must look to the intent of the sentencing court, as evidenced in the record

to determine the defendant’s sentence.” Id. (internal quotation marks and

citation omitted). 

More to the point, we have held that “[i]f the district court orally imposes

a sentence of supervised release without stating the conditions applicable to this

period of supervision, the judgment’s inclusion of conditions that are mandatory,

standard, or recommended by the Sentencing Guidelines does not create a

conflict with the oral pronouncement.” Id. at 938. Thus, if a condition is

mandatory, standard, or recommended by the applicable guideline, “the written

judgment simply clarifie[s] the meaning of that sentence by specifying what the
No. 08-50624

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supervision [is meant] to entail.” Id. (alternation in original) (internal quotation

marks and citation omitted). 

In the instant case, the government does not contend that the challenged

condition which prohibits Elkins from associating “with any child or children

under the age of 18 except in the presence and supervision of an adult

specifically designated in writing by the probation officer” is mandatory,

standard or recommended by the applicable guideline. Nonetheless, the

government contends that the challenged condition is not a conflict but an

ambiguity. More specifically, the government argues that it is clear that the

district court intended to restrict Elkins’s contact with minors. Although it is

true that the district court verbally imposed other restrictions with respect to

contact with minors, this condition is more “burdensome” in that it requires an

adult, who has been previously approved by the probation officer, to supervise

Elkins any time he associates with a minor. See United States v. Bigelow, 462

F.3d 378, 383 (5th Cir. 2006) (explaining that “the written judgment conflicts

with the oral pronouncement by imposing a more burdensome requirement of

prior approval, rather than merely notifying the probation officer when applying

for, or having obtained, a new identification document”).

Relying on United States v. Mireles, 471 F.3d 551 (5th Cir. 2006), the

government asserts that this Court found no conflict between the written

judgment and the oral pronouncement even though the written judgment did not

contain language used in the oral pronouncement. In Mireles, the sentencing

court orally imposed a condition that required the defendant, a truck driver, to

announce to any police officer who stopped his vehicle while he was engaged in

commercial activities that he was on supervised release for drug trafficking so

that the officer could search the vehicle and his person. Id. at 558. However, the

written judgment did not specifically contain the words “engaged in commercial

activities.” Id. Nonetheless, after reviewing the record, this Court determined
No. 08-50624

 We note that there are other unchallenged conditions of supervised release providing

1

that Elkins shall abide by the rules of a mental health and/or sex offender treatment program

and also follow any restrictions or treatment requirements imposed by his therapist. The

excision of the challenged provision does not affect the validity of any of the remaining

conditions of supervised release. Indeed, the remaining conditions may very well support

restrictions on his associations similar to the stricken condition if determined to be

appropriate for his treatment by his therapist.

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that the phrase “truck driving” in the written judgment applied only to

commercial activity. Thus, it found no conflict. Id. at 558–59. In the instant

case, it is clear that the challenged condition cannot be encompassed within any

of the other orally pronounced conditions. Mireles thus offers the government

no succor. 

Here, the challenged condition in the written judgment is more

burdensome than the oral pronouncements in that it requires a pre-approved

adult to supervise Elkins any time he associates with a person less than 18 years

of age. Because the condition in the written judgment is more burdensome than

those imposed at the sentencing hearing, the written judgment conflicts with the

oral pronouncements. Bigelow, 462 F.3d at 383. The district court abused its

discretion in imposing the more burdensome condition. We therefore strike this

condition from the judgment.1

Finally, in his brief, Elkins argued that the district court plainly erred by

imposing a special condition of supervised release that prohibited his use of a

computer without the prior approval of his probation officer. More specifically,

he contended that the condition involves a greater deprivation of liberty than is

reasonably necessary to achieve statutory goals. Subsequent to the filing of the

briefs in this case, this Court rejected this argument. United States v. Brigham,

--- F.3d ----, No. 08-10315, 2009 WL 1395839, at *10–12 (5th Cir. May 20, 2009).

At oral argument, counsel admitted that Brigham precluded relief on this

contention.
No. 08-50624

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For the above reasons, we MODIFY Elkins’s sentence by striking the

following condition of supervised release: 

The defendant shall not associate with any child or children under

the age of 18 except in the presence and supervision of an adult

specifically designated in writing by the probation officer. The

probation officer will notify the designated adult of risks occasioned

by the defendant’s criminal record or personal history or

characteristics. The defendant shall permit the probation officer to

make such notifications.

The district court’s judgment is AFFIRMED as MODIFIED.